Bias Crimes and Crimes Against Humanity: Culpability in Context

Abstract

Nine years after Wisconsin v. Mitchell, bias crime statutes have become a settled feature of the American legal landscape. In philosophical terms, however, these statutes remain only partially understood. The most widely accepted justification for the penalty enhancement associated with bias crime statutes derives from evidence that these crimes potentially engender more harm than do ordinary crimes. Scholars have less successfully articulated, however, the special blameworthiness of the bias crime perpetrator that justifies his enhanced punishment on the grounds of his personal culpability. The dominant account of the culpability associated with bias crimes derives from a conviction that the perpetrator's motives are particularly culpable. In this article, by contrast, I argue that the perpetrator's decision to select a particular victim - and not necessarily his motive - is the morally relevant event, and the basis upon which we may justly inflict increased punishment. Traditional explanations of the culpability associated with bias crimes suffer from a failure to consider fully the group aspects of these crimes. Crimes against humanity under international law provide a useful prism through which we can examine bias crimes. Through a comparison with crimes against humanity, I argue that the bias crime perpetrator's culpability can only be understood by reviewing the social context in which the perpetrator acts and his understanding of that context. In particular, it is important to consider the perpetrator's understanding of discrimination against the group of which his victim is a member. I maintain that a perpetrator should be found culpable for contributing to this discrimination - and hence guilty of a bias crime - if he intentionally selects a victim who is a member of a group subject to discrimination in the community, and if he is at least reckless as to that discrimination. Under these conditions, the bias crime perpetrator's actions reinforce and perpetuate social meanings that facilitate and solidify existing discrimination. His conscious decision to select a member of a vulnerable group as his victim makes the perpetrator more blameworthy: he knowingly or recklessly joins other wrongdoers in a demonstration of bias and discrimination that ultimately harms our society.