The Punishment of Hate: Toward a Normative Theory of Bias-Motivated Crimes

Abstract

This article explores how bias crimes differ from parallel crimes and why this distinction makes a crucial difference in our criminal law. Bias crimes differ from parallel crimes as a matter of both the resulting harm and the mental state of the offender. The nature of the injury sustained by the immediate victim of a bias crime exceeds the harm caused by a parallel crime. Moreover, bias crimes inflict a palpable harm on the broader target community of the crime as well as on society at large. The distinction between bias crimes and parallel crimes also concerns the perpetrator's state of mind and, specifically, his bias motivation toward his victim. Bias motivation is an essential element of criminal liability and the greater level of harm caused warrants their enhanced punishment. The punishment of an individual offender for the commission of a bias crime, however, is warranted by the state of mind with which he acts. Part I of this article discusses the differences between bias crimes and parallel crimes and explores the distinctiveness of perpetrators and victims of bias crimes along with the impact of bias crimes beyond that on the immediate victim. After establishing a typology of positive bias crime law, the author discusses the outward manifestations of these crimes. Part II demonstrates that bias crimes ought to be punished more severely than parallel crimes. Part III considers the aspects of bias crimes that are relevant in the punishment of an individual offender. Whereas the harm caused by bias crimes generally justifies the enhanced punishment of these crimes, the resulting harm to a particular victim does not, in and of itself, warrant the enhanced punishment of the perpetrator. Bias motivation of the perpetrator, and not necessarily the resulting harm to the victim, is the critical factor in determining an individual's guilt for a bias crime. The author concludes that the discriminatory selection model of bias crimes is an insufficient theory of bias crime, whereas the racial animus model offers a far richer theory. Discriminatory selection of a victim may often provide important evidence of racial animus, and in some instances even fully persuasive evidence. But selection ought to play the role of proof for animus and not the greater role of element for guilt.