10.1023/A:1010661127873

Abstract

This article takes issue with the claim that hate crime statutes are justified because hatred and bias constitute uniquely culpable mental states that merit increased punishment. It outlines three key differences between hatred and bias and the mens rea requirements with which the criminal law has traditionally measured the culpability of defendants. It then argues that because hatred and bias are uniquely dispositional, the enactment of hate crime statutes marks a shift from an act-centered theory of criminal punishment to a character-centered theory, and thereby, a move from a liberal theory of legislation to a perfectionist theory. It closes by critically examining the perfectionist’s claim that the criminal law should be in the business of punishing vice and cultivating virtue, arguing that we should be wary of using punishment to regulate not only what we do, but who we are.