Penalty Enhancement Research Articles

Punishing hate and achieving equality

I Introduction Many people continue to believe (and the law increasingly agrees) that wronging others while, or as a result of, hating them ought morally to expose the wrongdoer to an increased or enhanced punishment--a penalty aggravated over what he or she ought otherwise to receive. This belief appears to be rooted in the presumption that hate crimes constitute a distinctive form of moral wrongdoing. Recently, the argument has been advanced that the distinctive wrong that obtains when crimes are committed from racial or other forms of animus consists in the violation of a conception of equality or fair treatment central to our political morality. This is the claim that I explore. It is not, I argue, as easily defended as is commonly supposed. This fact is significant, for it undermines one argument that has seemed compelling as a justification for hate-crime laws. Most hate-crime laws are structured as penalty enhancements. The precise formulation is somewhat complex, but the basic idea is that hate-crime laws add an additional layer of criminality top of ordinary crimes, whenever those ordinary crimes are done from hateful beliefs and desires. Consider the following two cases: Case One: Jones decides to commit a robbery. Jones leaves his apartment and steps into the street. Jones targets Richard Roe because Roe is gay and Jones despises gays and wants to hurt them. Jones shoves Roe into a corner, threatens him with a gun, takes one hundred dollars from him, and leaves the scene. Jones is later arrested and charged with the hate crime of bias-motivated aggravated assault. Case Two: Smith decides to commit a robbery because he wants money. Smith leaves his apartment and steps into the street. Smith targets Richard Roe because he is the first person he sees. Smith shoves Roe into a corner, threatens him with a gun, takes one hundred dollars from him, and leaves the scene. Smith is later arrested and charged with aggravated assault. Since, in Case One, Jones targeted Roe because of his sexual orientation, existing law would permit (or perhaps even require) that he receive a greater punishment, other things being equal, than would be meted out to Smith in Case Two. Hate-crime penalty enhancement schemes have been the focal point of extended debate, much of which has coalesced along two discernible dimensions. One set of discussions, the principal focus of earlier contributions to this journal, (1) concerns whether hate-crime statutes are inconsistent with constitutional standards because they proscribe or ideas deemed offensive, such that those who wish to send hateful messages would be unconstitutionally prohibited from doing so by operation of hate-crime legislation, (2) or that they would be punished merely for instantiating certain character traits. (3) Critics have insisted that enhanced punishments for hate are indefensible on their face, since such laws impermissibly punish persons for entertaining certain or beliefs. (4) According to James Jacobs and Kimberly Potter, recriminalization or sentence enhancement for the same injurious conduct when it is motivated by prejudice amounts to extra for values, beliefs, and opinions that the government deems abhorrent. (5) Some of these critical arguments are obvious nonstarters: for example, the claim that bias-crime laws improperly treat as a defining element of crime. As has often been observed, the law routinely makes an actor's a necessary element of criminality, at least if by we mean something like the person's beliefs and intentions, goals, and desires. (6) Critics of punishment for thoughts concede this much but insist that no one's should turn merely upon his entertaining certain beliefs. In one sense, of course, that is simply not what is happening: hate criminals are not being punished simply for holding beliefs, but for acting upon them. …

ID theft: the US legal fight back

“We're taking an important step today to combat the problem of identity theft, one of the fastest growing financial crimes in our nation. Last year alone, nearly 10 million Americans had their identities stolen by criminals who rob them and the nation's businesses of nearly $50 billion through fraudulent transactions. The bill I'm about to sign sends a clear message that a person who violates another's financial privacy will be punished. The Identity Theft Penalty Enhancement Act also prescribes prison sentences for those who use identity theft to commit other crimes, including terrorism. It reflects our government's resolve to answer serious offences with serious penalties. This good law is part of a broader effort we've waged in recent years. The US Postal Inspection Service, the FBI, and Secret Service are working with local and state officials to crack down on the criminal networks that are responsible for much of the identity theft that occurs in this nation. The Federal Trade Commission is training local law enforcement in the detection of identity theft. The Commission has set up the ID Theft Data Clearinghouse, which keeps track of complaints across the country, and provides those records to prosecutors seeking to take down organized rings. The law I sign today will dramatically strengthen the fight against identity theft and fraud.”

Bias Crimes and Crimes Against Humanity: Culpability in Context

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.

Bias Crimes and Crimes Against Humanity: Culpability in Context

Bias Crimes and Crimes Against Humanity: Culpability in Context

Penalty Enhancement for Hate Crimes: An Economic Analysis

This article develops an economic analysis of penalty enhancements for bias-motivated (or hate) crimes. Our model allows potential offenders' benefits from a crime to depend on the victim's group identity, and assumes that potential victims have the opportunity to undertake socially costly victimization avoidance activities. We derive the result that a pattern of crimes disproportionately targeting an identifiable group leads to greater social harm (even when the harm to an individual victim from a bias-motivated crime is identical to that from an equivalent non-hate crime). In addition, we consider a number of other issues related to hate crime laws.

Penalty Enhancement for Hate Crimes: An Economic Analysis

The issue of bias-motivated crimes (also known as hate crimes) has attracted considerable attention in recent years. This paper provides an economic framework in which to analyze penalty enhancements for hate crimes. It extends the standard model by introducing two different groups of potential victims of crime; potential offenders' benefits from a crime depend on the group to which the victim belongs. The conditions under which penalty enhancements are socially optimal are derived. Choosing sanctions from behind a Rawlsian veil of ignorance concerning group identity does not alter these conditions. However, the (partial) exclusion of bias-motivated illegal gains from social welfare makes penalty enhancements more attractive. This conclusion also follows from the incorporation of fairness considerations that entail a social loss from different groups facing different probabilities of victimization. The paper endogenizes this social loss using a model in which victims can engage in socially costly avoidance activities that displace crime.

Managing Differences and Making Legislation: Social Movements and the Racialization, Sexualization, and Gendering of Federal Hate Crime Law in the U.S., 1985-1998

This work addresses a central question in both social problems theory and sociolegal studies: how can we understand and account for the content of legal categories that define social problems and attendant victims? It offers an empirical analysis of the emergence and evolution of federal hate crime laws—the Hate Crimes Statistics Act, the Violence Against Women Act, and the Rate Crimes Penalty Enhancement Act—that determine who is and is not eligible for hate crime victim status. By examining the legislative histories of these laws as evidence of “critical discursive moments” (Gamson 1992), I show how the substantive character of the law was shaped over time: 1 first establish a historical context for federal hate crime law: then I analyze how an important element hate crime law—the adoption of select status provisions, such as race, religion, ethnicity, sexual orientation, gender, and disabilities—unfolded such that some victims of discriminatory violence have been recognized as hate crime victims while others have gone unnoticed. In particular, people of color, Jews, gays and lesbians, women, and those with disabilities increasingly have been recognized as victims of hate crime, while union members, the elderly, children, and police officers, for example, have not. The findings suggest that the content of federal hate crime law was shaped by a series of temporally bound institutionally qualified processes whereby: 1) the empirical credibility of the scope of hate crime as a social problem was established by the claimsmaking of established social movement organizations; 2) a trio of core provisions for hate crime law—race, religion, and ethnicity—was cemented as the anchoring provisions of all hate crime law through discursive strategies that rendered particular types of violence empirically credible and worthy of federal attention; 3) the domain of the law expanded to include additional provisions, most notably sexual orientation and gender, in qualitatively distinct ways; and 4) the increased differentiation of legal subjects in subsequent law occurred in ways consistent with previously established and institutionalized policy pedigrees. Taken together, these findings reveal how microlevel processes of categorization work, mesolevel processes of social movement mobilization, and larger processes of institutionalization interface as political actors create and coalesce around legal meanings that define both “condition-categories” and “people-categories” (Loseke 1993).

Hate Is Not Speech: A Constitutional Defense of Penalty Enhancement for Hate Crimes

Hate Is Not Speech: A Constitutional Defense of Penalty Enhancement for Hate Crimes

Fighting Words and Fighting Freestyle: The Constitutionality of Penalty Enhancement for Bias Crimes

Fighting Words and Fighting Freestyle: The Constitutionality of Penalty Enhancement for Bias Crimes

Some further thoughts on “thought crimes”

My thinking on the issue of the constitutionality of sentence enhancement for racially motivated crimes has benefitted enormously from the commentary on my paper, as well as from the commentary directed to other authors. More importantly, this commentary has significantly advanced the inquiry on a topic that is both difficult and important. While agreeing with much of this commentary, there are, nonetheless, many points with which I do not agree. This short reply will be limited, however, to addressing only a few of the more salient points of disagreement. My major quarrel with Professor Martin Redish is his a priori assumption that [a]ll [sentencing enhancement laws] do is punish the of political or social that the government deems offensive or unacceptable.(1) Once Redish has put this First Amendment rabbit into the hat, he can, of course, pull it out to show that any justification for hate crime legislation will not meet the extraordinary applied in free speech cases. A key question, however, is whether statutes enhancing punishment for racial violence in fact do nothing more than punish someone for holding ... offensive political or social attitudes and thus should be subjected to the exceedingly searching reserved for laws that prohibit protected expression or punish beliefs. It was to answer this threshold question, not to justify an already documented infringement of speech, that I examined the various justifications for enhancement.(2) For if the government can invoke some justification other than punishing a person for offensive beliefs, then it is simply not the that all that the sentencing enhancement does is punish people for having unpopular beliefs. Thus, in failing to deal with the various justifications for enhancement, not as interests sufficient to allow infringement of core First Amendment rights, but as evidence that enhancement serves some other purpose than punishing a person for his beliefs, Redish both begs the question and creates a strawman.(3) Susan Gellman's piece in this symposium suffers from the same defect. She repeatedly insists that the ADL model statute cannot survive ... the analysis applicable to content-oriented restrictions on protected speech.(4) Again, however, the question on the table is whether enhanced punishment for racially motivated violence is a content-oriented restriction on expression or belief triggering scrutiny. It was to answer that question that I inquired, analogously to the Supreme Court's inquiry in United States v. O'Brien(5) and Texas v. Johnson,(6) whether the state has an interest for the enhancement unrelated to suppression of expression.(7) O'Brien, which upheld a conviction for draft card burning, applied quite minimal in light of the government's asserted speech neutral interest in efficiently administering the draft--an interest which Professor John Ely has aptly described as plausible but little more.(8) Thus, O'Brien is far from the strict case that Gellman claims it is.(9) As for Johnson, the Court subjected the flag desecration statute to strict scrutiny only after it had determined that the only state interest implicated in that was related to the suppression of expression.(10) Just as Redish and Gellman too facilely assume that core First Amendment values are infringed by penalty enhancement for racially motivated crimes, Professor Frederick Schauer too easily assumes away tough First Amendment problems. Schauer is correct in believing that as a doctrinal matter the Supreme Court might well consider retribution a sufficiently speech neutral justification for enhanced punishment.(11) But deeming an omnipresent justification such as retribution to be sufficient proof that a statute is not aimed at expression or belief is troubling as a matter of sound free speech policy. Schauer does not address this concern, nor the similar policy concerns raised by Professor Larry Alexander in his lucid and insightful commentary. …

Penalty enhancement for hate crimes

(1992). Penalty enhancement for hate crimes. Criminal Justice Ethics: Vol. 11, No. 2, pp. 3-6.