Hate crime enhancements: evaluating arguments for and against

Hate Crime Enhancements -- Two Sides of the Argument

This project represents the evolution of opinion as a function of the process of a strictly academic exercise. At the outset of the project, the writer maintained a specific belief: namely, that hate crime enhancement policies are fundamentally unjustified. It was the process of formulating a counterargument to the writer's position that ultimately resulted in a change of opinion. The writer is now of the opinion that hate crime enhancement is a policy that is justified in principle and not substantially different from various other types of distinctions made in American civil and criminal law with respect to the consideration of motivation as an element of moral responsibility and criminal culpability.

The Argument against Hate Crime Enhancement Legislation

One of the main purposes of law is to encourage behaviors that are beneficial to the many members of society and to discourage behaviors that are detrimental to the many members of society (Taylor, 1982). Another main purpose of law is to provide just compensation for individuals wronged by others through civil awards and to punish wrongdoers while simultaneously protecting the general public from those inclined to conduct themselves in ways that are harmful to others and to society (Taylor, 1982). Generally, civil laws address wrongful conduct and the breach of duties that do not also involve criminality while criminal laws address wrongful conduct that does involve violations of criminal statutes. In both cases, the purpose of laws is to affect human behavior and to provide an appropriate response on the part of societal authorities to behaviors that violate the norms, values, and reasonable expectations of others in ways that give rise to reasonably justified enforcement by societal authorities.

One of the hallmarks of the American democratic republic is freedom of thought and freedom of conscience, and this proposition is impliedly embodied in the U.S. Constitution, primarily by virtue of the First Amendment and the due process clause of the Fifth Amendment (Friedman, 2005). While freedom of thought and conscience are not explicitly mentioned in the Constitution, they were the subject of argument in the Federalist Papers through which the eventual signatories to the U.S. Constitution debated the purposes and the finer points of distinction and merit of various approaches to national government during the period between the transition from governance by the Articles of Confederation and the U.S. Constitution (Menand, 2001). The view that ultimately prevailed from those historic debates was the conclusion that the ideal of religious freedom that the Forefathers sought could only be possible if freedom of belief, and conviction, conscience, and opinion were protected from infringement by the government authorities (Menand, 2001).

The related concepts debated in the pre-constitutional era became the bases of the free exercise clause and the religious infringement clause of the First Amendment, as well as of the so-called First Amendment rights of "free speech" (Laycock, 2011; Sullivan & Gunther, 2007). In principle, all of those rights emanate from the fundamental distinction between physical actions and internal states of mind and thought (Laycock, 2011; Sullivan & Gunther, 2007). Those who helped establish the new nation in North America had no intention of duplicating the government practices that persisted in Britain well into the 19th century, whereby allegiance to the wrong religion and critical utterances of the royal family were punishable by death. The experience of living under British rule motivated the Founders to explicitly protect the right to autonomous thought and belief and the right to express those beliefs and opinions without fear of punishment or persecution (Laycock, 2011, Menand, 2001).

The concept of enhanced criminal penalties for hate crimes violates that fundamental distinction between external thought and outward-directed action. The logical measure of civil damages is the actual harm suffered by an aggrieved party, not on the internal workings of the mind. Likewise, the logical and fair measure of criminal culpability is the harm caused to others or to society, not the internal workings of the mind of criminal defendants. By definition, if the Constitution protects the right to express any belief or opinion, it also protects the right to hold those same beliefs and opinions. Allowing criminal penalties to reflect characterizations of the internal thoughts of criminal defendants violates the spirit of freedom of thought, belief, conscience, and conviction that are embodied in the U.S. Constitution.

Conclusion

One of the greatest liberties in the U.S. is the absolute freedom to think and believe anything without fearing reprisals just for personal beliefs and purely internal states of mind. However, the internal motivation for outward behavior that affects others in society is absolutely relevant to the characterization of that behavior both morally and legally. The Constitution protects only thought, not external behavior. Just as other aspects of civil and criminal law reflect the significance of intent and purpose, so does the concept of hate crime enhancement. That is perfectly reasonable and appropriate because a society that promotes equality and the dignity of all peoples may properly place a value on protecting all members of society from deliberate harm inflicted upon them as the result of bigotry. Just as the internal state of mind is relevant to the appropriate penalties for different types of murder arising from identical external circumstances, internal states of mind are equally relevant to the appropriate penalties for external behaviors that cause identical harm to others. The Constitution protect all thought and opinion (including bigoted hate), but only in so far as they remain entirely states of mind or inanimate expressions of those thoughts. Once certain types of thoughts (such as bigoted hate) contribute to the motivation for external behavior that deliberately harms others, thoughts become a relevant element of culpability, and rightfully so.