In the case of an extreme situation, such as the death or near death of another, intentionality is a clear indicator of culpability and should be constitutionally supported. The constitution is a litmus of the culture and open violation of the intentions of the constitution, i.e. To protect the rights of all should be an allowable designation for increased sanctions against those who perpetrate such crime.
Pros and Cons of Hate Crime Legislation:
The constitutionality of hate crime laws has been challenged almost since their inception, as the idea that a crime perpetrated to racial intent should not be considered any more heinous than one perpetrated against another, say for monetary gain. If the act is one of violence then according to a purely legalistic approach the acts are equal and should be treated as such. Yet, intention is often an aspect of legislation and rulings, one example is the designation of manslaughter and first degree murder in the common law legal tradition. A human life was taken and yet when it was done with full intention and even planning it is considered worse than if it was perpetrated by accident (say as in an auto accident). The argument against hate crime legislation is a constitutional argument, in that if a crime is committed and equal damage is done then punishment should be equal. Yet, most people will agree that a crime becomes somehow worse, morally and ethically if it is perpetrated against what is considered a "weaker" individual, and is based on the perpetrators idea of the others lack of value. (Grattet & Jenness, 2001, p. 653) (Grattet, 2000, p. 567) Another argument against hate crime legislation is that of intention, few such crimes are openly clear cut, such as the case of Matthew Shepard where the perpetrators made it clear in their dogma and testimony that the motivation for their crime was their personal hatred for homosexuality, or the case of the vehicular dragging death of a black man. The argument is that intention is often an internal drive that cannot be clearly proven and therefore cannot be applied in cases where intention is foggy. These detractors fear that all crimes perpetrated against minorities will receive special attention and designation that is not necessarily provable, while other equally heinous crimes will receive less attention because they do not ring of hate crime. (Grattet, 2000, p. 567) These detractors say that all crime, and especially violent crime is to some degree a "hate crime" as in the act the perpetrator is enforcing an ideology of superiority or greater rights than an "other." Yet, intention has nearly always been an aspect of legal rulings, the determination of charges and an aspect of sentencing and will likely remain so. (Grattet, 2000, p. 567)
Another argument against the special legislation of hate crime is that gender, often considered an indicator of minority status already overburdens the legal system. The fear being that because a man killed or beat a woman that the individual man can be charged under the auspices of hate crime rulings. Yet, as the laws have played out in the past there is a clear sense that the scenarios for such applications would be limited. If a man kills his wife it is not because she is a woman, but because she is his wife. While if a man kills a woman who is just leaving a National Organization for Women (NOW) meeting and he makes clear that his intention to kill her was because she was a woman's rights activist then hate crime laws should apply. It is clear to most people that this the legal definitions of a hate crime are relatively clear, but offer an additional thought process and avenue for prosecutors to make sure that certain crimes, by degree, are punished in the same fashion, by degree. The same people that argue that all crimes are hate crimes, and therefore should be charged and prosecuted equally, and without special cause might also have to argue that archaic ideas of tit for tat should apply. In other words if a person takes another's life, even in an accident he or she should be prosecuted as a first degree murderer, regardless of intent. This is clearly not the historical sentiment of criminal law, as intention is a clear indicator of the need to more or less severely punish the perpetrator. (Brooks, 1994, pp. 703-742)
As intentionality and motivation have always been an aspect of crime legislation, charging and sentencing, they will likely remain so. There is a clear sense, by society that the definition of hate crimes is crucial to the allowance of the legal and criminal justice systems to publicly and fiercely challenge the seeds of hate. If such legislation did not exist the sense of community as a protector of the vulnerable would be lost. as, this culture has created a vulnerable population, in many ways it should also be aware of the consequences of further maltreatment of it. The fight to equalize our population, though it is often waylaid by practicality should continue in this line and exceptional tools should remain an aspect of hate crime legislation and rulings.
Brooks, T.D. (1994). First Amendment - Penalty Enhancement for Hate Crimes: Content Regulation, Questionable State Interests and Non-Traditional Sentencing. Journal of Criminal Law and Criminology, 84(4), 703-742.
Grattet, R., & Jenness, V. (2001). Examining the Boundaries of Hate Crime Law: Disabilities and the "Dilemma of Difference." Journal of Criminal Law and Criminology, 91(3), 653.
Grattet, S.P. (2000). Judicial Rhetoric, Meaning-Making, and the Institutionalization of Hate Crime Law. Law & Society Review, 34(3), 567-606.
Hamm, M.S. (1994). American Skinheads the Criminology and Control of Hate Crime. Westport, CT: Praeger Publishers.
Kelly, R.J. & Maghan, J. (Eds.). (1998). Hate Crime: The Global Politics of Polarization. Carbondale, IL: Southern Illinois University Press.