The Volokh Conspiracy

Crimes and Motivations:

I'm skeptical of hate crimes laws for various reasons, but I don't agree with the oft-heard argument that there's something unconstitutional or inherently wrong about enhancing punishments based on motivation.

Consider this comment: "I simply can not abide these 'hate crime' laws and am amazed that they have not been struck down. A murder is a murder; these laws criminalize speech, plain and simple." A murder is a murder -- yet the law has long distinguishes between different motivations for homicide.

Killing someone because you're enraged over his having attacked your family members (or even seduced your wife, a more controversial matter) is manslaughter. Killing someone because you just don't like them is often second-degree murder. Killing someone for financial gain may be more likely to be first-degree murder. Your motivation matters; and it will often be proved using your speech. Does it follow that these doctrines unconstitutionally "criminalize speech, plain and simple," or violate the principle that "[a] murder is a murder"?

Or consider treason law. Blowing up part of a defense contractor's plant in time of war is a serious crime. But it's treason only if it's done with the purpose of helping the enemy. If you blow up part of the plant because you're on strike and you're angry at the plant's management, it's still a felony, but it's not treason. Here the matter turns not just on motivation, but politically laden motivation (are you on our side, or the Communists' / Nazis' / jihadists'?). Still, motivation quite properly matters. We don't say "arson is arson; these laws criminalize speech, plain and simple" -- we distinguish between arson caused by anger or a desire for economic retaliation (bad though it is) and arson caused by a desire to help the enemy (worse).

The same is true with antidiscrimination law generally, though it's enforced through civil litigation: Motive is what turns perfectly permissible conduct into civilly actionable conduct. If a university is sued for expelling a student because of the student's conservative political speech, and its defense is that expelled the student for other reasons, the litigation will be all about motive. Likewise if an employer is sued on the grounds that if fired an employee because the employee was Catholic, black, white, female, or whatever else. The legal system does not say "firing is firing; these laws criminalize speech, plain and simple."

Now it may well be that a crime in which the victim was picked out because of his sexual orientation isn't materially different from a similar crime committed for most other reasons. It may well be that, even if there is a material moral and practical difference, drawing the line between the different motivations may be socially corrosive in various ways. It may well be that, even if there is such a difference, determining the speaker's motivations may too often require a focus on the speaker's political views, and might thus have too much of a deterrent effect even on lawabiding people. And it may well be that the laws are sometimes abused to actually punish constitutionally protected speech (rather than just using it as evidence of intent to commit a nonspeech crime).

As I said, I generally oppose hate crime enhancements, for a mix of these reasons. But "A murder is a murder; these laws criminalize speech, plain and simple" (and variants of this) is not, I think, a sound ground for opposition.

Happyshooter:
The government prefers some people over others. In this case they have decided that black and mexican lives are more important than white lives when a cross race murder takes place.

They therefore enacted a law to allow themselves to give additional punishment to whites who murder blacks and hispanics.

Everything else is just justification.
5.24.2007 5:10pm
Roger Rainey (mail):
That's all well and good, but the case being discussed is not really an enhanced punishment for an egregious motive, but rather a criminalization of speech masquerading as the former. This is evident by the awkward hanging of an unrelated variety of base offenses on what is really merely the posting of a flyer found offensive by some. You really shouldn't try to obscure that.
5.24.2007 5:19pm
Eugene Volokh (www):
Happyshooter: What do you think about the facts of Wisconsin v. Mitchell, the Supreme Court case that upheld hate crimes laws. Was it just an outlier? (I don't know of statistics on the subject myself, but it sounded like you must.) For that matter, do you think that the Illinois case that started this thread shows that the Illinois government prefers gays over straights?
5.24.2007 5:19pm
cirby (mail):
More specifically, if an (insert ethnic group here) attacks ME with a stick and calls me a name based on my whiteness, do they get prosecuted under the same rules, or do they get a lower grade of punishment because of history?

Does the hate not matter when the victim is in the majority?

It seems that calling something a "hate crime" just adds complexity without adding justice.
5.24.2007 5:25pm
Justin (mail):
Cirby and happyshooter's arguments strike me as absurd. I think the problem with their arguments is made clear by the GEICO commercial with the caveman and the therapist. More to the point, you can't just say "race is race" and ignore the history and context of racism when that racism is directed towards historically-discriminated against political minorities.
5.24.2007 5:28pm
Philistine (mail):
Lots of state statutes enhance punishment based on the identity of the victim (and motive of the perpetrator) even apart from hate crime legislation.

In Pennsylvania, for instance, it's simple assault to punch you neighbor, the school teacher, in the nose because he mows his lawn too early in the morning. But it's aggravated assault to do it because he gave your child a failing grade.

Similarly, it's a grade higher (midsemeanor 1, instead of misdemeanor 2) to punch someone in the face because of the call they made as a sports official as opposed to generic reasons.
5.24.2007 5:30pm
ATRGeek:
I agree this particular argument tends to be a bad one, for the reason given (that motive, or mens rea in general, is already relevant to criminal liability, and that speech acts are already admissible evidence of motive).

To the extent the complaint is rather that speech which would otherwise be protected is being rendered criminal, that is actually a different argument, and has nothing in particular to do with the level of punishment (any criminal sanction at all for protected speech is a problem).
5.24.2007 5:30pm
RMCACE (mail):
I think the comment you posted on stems from a recent campaign against the current hate crimes legislation. The opponents have succeeded in portraying the recent bill as criminalizing speech by Christians (it doesn't it only affects violant crimes). As someone who worked in a Congressional office, I cannot tell you the number of calls we got opposing this bill. When I asked why, they would rattle off factual inaccuracies about what the bill actually did. The source? Hate Crimes laws send grandma to jail ads. You can watch them here:

http://www.stophatecrimesnow.com/
5.24.2007 5:33pm
uh clem (mail):
The government prefers some people over others. In this case they have decided that black and mexican lives are more important than white lives when a cross race murder takes place.

Rubbish.

From a de Jure standpoint, hate crimes do not specify race. Period. See this for example.


And from a de Facto standpoint, you have it utterly completely backwards.
5.24.2007 5:49pm
cirby (mail):
More to the point, you can't just say "race is race" and ignore the history and context of racism when that racism is directed towards historically-discriminated against political minorities.


Racism, and sexism, and lookism, and religious prejudices, and gay-bashing, and...

Once you include all of the things that can be considered "hate crimes,' there's not a lot left, except plain old greed and marital strife.

And, once again, I take extreme dislike to something that lets someone else get away with a lesser punishment for a crime, just because they (or their grandparents, or someone else down the line) got screwed over because of their skin color.

If some (ethnic) guy attacks me because of my white skin, it's a hate crime - he attacked because of his hate. Why should he suffer less of a penalty because some OTHER white guys beat up some third party because of his non-white skin?

Saying that someone is exempt from a penalty because of history? No, thank you. That's just badly-run affirmative action with a big club.
5.24.2007 5:50pm
D Palmer:
I understand that the level of premeditation and forethought that you put into your crime affects the level of punishment. Frankly, that makes sense. Anyone who can plan and carry out a murder is probably more dangerous than the individual who acts on emotion at the spur of the moment, or kills unintentionally. I am also OK with extra punishment for killing when combined with other crimnal acts such as robbery.

However, if I kill you because I don't like the color of your hair, why is is worse than if I kill you because I don't like the color of your skin?

Making this distinction is profoundly disrespectful to the victim and their family. It is effectively saying your death/loss is less important than someone elses because your killer was motivated by greed or generic hatred and not race specific hatred.

Generally speaking, murders of equal levels of premeditation should be punished equally. The reason I planned and carried out the crime should not be relevant except to the extent that I am trying to prove self-defense (i.e. I killed an abusive spouse).
5.24.2007 5:53pm
anon:
I agree with your first point that there is nothing inherently wrong with enhancing punishment for a crime on account of motivation. The issue with hate crimes is that the motivation punished is one that would otherwise be protected speech ("_____ are bad and evil persons"). We can punish treason as a distinct crime because the motive - helping the enemy - is not constitutionally protected.

On the margin, wouldn't hate crimes necessarily have a chilling effect: discouraging that element of the population that might commit crimes from expressing controversial opinions on public issues. Suppose someone hostile to persons in a protected class. Such a person would rationally be deterred from expressing any views consistant with that hostility about the protected class lest a simple traffic accident be characterized as hate-motivated assault.
5.24.2007 5:55pm
Michael B (mail):
In theory and in the abstract, not a bad idea; minimally it can be said that hate (of the kind being addressed) is not something society should be encouraging. In practice the legal system, and society at large, is not appreciably geared to the more finely attuned sensitivities needed to judge motives, beyond more blatant instances of such crimes. Thus politically correct and other au courant sensitivities usurp better epistemic groundings.

A case in point is the recent Knoxville horror/atrocity and moral revulsion. Was it a hate crime? Seems likely. Yet, in terms of society at large, where the MSM was positively attracted to the Durham situation, it's largely been "hands off" in terms of the Knoxville atrocity. And that serves to contrast a faux crime with a genuine atrocity and horror.

Telling, and should give one pause regardless of the weakness of other arguments against the idea.
5.24.2007 6:05pm
Steve:
If some (ethnic) guy attacks me because of my white skin, it's a hate crime - he attacked because of his hate. Why should he suffer less of a penalty because some OTHER white guys beat up some third party because of his non-white skin?

What hate crimes statutes are actually drafted like this?
5.24.2007 6:14pm
Anon Y. Mous:

Killing someone because you're enraged over his having attacked your family members (or even seduced your wife, a more controversial matter) is manslaughter. Killing someone because you just don't like them is often second-degree murder. Killing someone for financial gain may be more likely to be first-degree murder. Your motivation matters; and it will often be proved using your speech. Does it follow that these doctrines unconstitutionally "criminalize speech, plain and simple," or violate the principle that "[a] murder is a murder"?


I think you are conflating intent and motive. The differing penalties for killing a man because you caught him with your wife, or because you got in a bar fight, or because you robbed him and then killed him to avoid leaving a witness are related to how much intent you had. To have differing penalties based on whether you called him an SOB, or a black SOB is a whole different animal.

I think you probably get to the right conclusion on the free speech angle. Although the hate crime might be proven by what you say, what is actually being criminalized is what's in your heart. If you think about it, the same is also the case with trying to determine intent. Intention may be proved by what you said, but the standard is about what you actually intended.

I think the best angle to oppose hate crime laws is through equal protection challenges.
5.24.2007 6:28pm
Houston Lawyer:
Steve:

What part of the Civil Rights Act allows discrimination against white people? It clearly doesn't on its face, but that is how it is enforced.
5.24.2007 6:29pm
ATRGeek:
The best parallels tend to be aggravating factors like performing a murder for hire, which is the same sort of thing: it is a motive-based factor, and having the motive--wanting more money--is not punishable in and of itself.

Of course, in a purely retributive system, it might be a problem to aggravate punishments when the aggravating factor is not itself punishable in isolation. I say "might", however, because retributive theories are notoriously slippery, and a lot of it tends to come down to moral intuitionism. So, maybe to some people it makes sense that the sin of the whole is greater than the sum of sin of the parts.

Anyway, that doesn't really matter, because we do not live in a purely retributive system. So, for example, if you can come up with any sort of deterrence, rehabilitation, or incapacitation argument, you need not claim the aggravating factor made the crime more deserving of a harsher punishment.
5.24.2007 6:54pm
ATRGeek:
Houston Lawyer,

Wow. If you believe that, you don't know much about the enforcement of civil rights in this country (they are sometimes called "reverse discrimination" cases, and they are certainly brought by the enforcement authorities).
5.24.2007 6:58pm
Barman:
ATRGeek,

Care to share some of those reverse discrimination links/cases?
5.24.2007 7:15pm
Seerak (mail):
Mr. Volokh, your points regarding the "speech" issue are valid. "Hate crime" laws do not interfere with speech. Rather, they interfere with equality before the law.

In a free society, individuals cannot gain or lose any fundamental rights by membership or exclusion from any group. To me, this means that the government should not be permitted to discriminate in law between individuals on the ground of their membership in any group. Its ultimate purpose is to protect the rights of individuals. Period.

That was the basis for my opposition to the "distinct society" issue some years back in Canada; the more a government moves towards altering the legal context of individuals on the basis of their group membership (such as "francophones"), the more we move away from equality before the law, and towards the old feudal idea of political classes and privilege.
5.24.2007 7:17pm
David M. Nieporent (www):
ATRGeek. I refer you to Grutter v. Bollinger.
5.24.2007 10:30pm
Respondent (mail):
I think the analogies used to uphold hate crime legislation are all invalid. Sure, motive and intent play a role all the time in factoring whether a given act is a crime, or how severe of a crime it is. That said, I think it is far more likely to be unconstitutional to enhance a sentence based on the message communicated by the crime. While the government certainly has power to criminalize acts based on their purpose or motive, it's a rather questionable interpetation of the first amendment that allows the government to cirminalize a political or social message underlying the crime, which the government certainly is doing when it aggragates the level of the crime based on the message it sets. A more sensible line, it would seem to me, can be drawn where we allow judges to base a higher sentence on the expressive motive as long as it's within the range allowed for the unaggragated crime, since moral factors have longed played a role in sentencing, and can arguably allow judges to consider the expressive nature of the underlying crime is adding to the moral culpability of the offender. But it is particularly disturbing that the government can tack on punishment that was unavailable to to an underlying offender solely based on the expressive nature of the crime. The same logic that prevents the government from banning expressive conduct that can be banned outright where the purpose of the law is to target the communicative nature of the act ought to extend to sentencing beyond a statutory maximum imposed by a government targeting disfavored viewpoints. Thus, I would suggest using the Apprendi line in this area.
5.25.2007 12:07am
LawClerk:
ATRGeek is right. Reverse discrimination claims are actionable under Title VII. Here are just a few cites and quotes:

TransWorld Airlines, Inc. v. Hardison, 432 U.S. 63, 71-71 (1977) (“The emphasis of both the language and the legislative history of the statute is on eliminating discrimination in employment; similarly situated employees are not to be treated differently solely because they differ with respect to race, color, religion, sex, or national origin. This is true regardless of whether the discrimination is directed against majorities or minorities.”); Argo v. Blue Cross &Blue Shield, 452 F.3d 1193, 1202 (10th Cir. 2006) (“Title VII makes reverse discrimination unlawful, and employers have no more freedom to retaliate against those who oppose reverse discrimination than any other form of discrimination.”); Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 850 (D.C. Cir. 2006) (“The protections of Title VII apply to minority and nonminority employees alike.”)
5.25.2007 8:03am
Happyshooter:
Michigan's Supreme Court did a specific split from the feds on the issue of employment discrimination, holding that the con and civil rights law protect all employees, not just prefereds.

As most of you know, the US Supreme Court has ruled that whites are only protected if they can prove a bunch of extra factors in employment.

Turning to Michigan's hate crime laws, in my local circuit court there has been never been a prefered who has been charged with a hate crime against a non-prefered.
5.25.2007 9:01am
AK (mail):
Killing someone because you're enraged over his having attacked your family members (or even seduced your wife, a more controversial matter) is manslaughter. Killing someone because you just don't like them is often second-degree murder. Killing someone for financial gain may be more likely to be first-degree murder. Your motivation matters; and it will often be proved using your speech.

Prof. Volokh, don't forget the basic distinction between degrees of murder and manslaughter? First-degree murder is punished more severely than second-degree because of premeditation, not because of motive. First-degree manslaughter is punished less severely than both because the defendant just "snapped" due to some amount of provocation and probably didn't fully form the intent to kill.

That certain motives might be charged as first-degree murder more often than others reflects that those motives are usually associated with longer amounts of preparation and planning. Killing your wife's paramour is manslaughter because it's done in a sudden, blind rage. Killing someone "because you just don't like them is often second-degree murder" because that dislike usually comes to a head in a heated argument. Killing for financial gain is usually first-degree murder because there was usually some planning involved, often in the form of a mobster killing a rival to take over his bookmaking racket, or a robber planning to assault and steal by force.

Degrees of homicide differ because of premeditation, not motive. You can argue that a hate-crime against Jews will usually involve planning ("Let's kill those dirty Jews!), but that won't always be the case. When it is the case, there's no reason to suspect that the prosecution will have any more difficulty proving premeditation than it does in any other first-degree murder trial.
5.25.2007 10:04am
loafer:
Oftentimes the only conduct that separates criminal conspiracy from an innocent act is speech. Do you nay-sayers oppose criminal conspiracy as well?
5.25.2007 10:45am
CJColucci:
As I've said before, I'm lukewarm of hate crime laws. I don't think they violate any serious principle, largely for the reasons EV said, but I don't think they do any great good, either.
Still, there may be some value in singling out crimes motivated by hate for a class of persons for special punishment because, if they really are crimes motivated by hate for blacks, Jews, gays, or what-have-you, they wouldn't be committed but for the hate, and hate crime laws might marginally deter them in a way beyond, for example, the way ordinary assault laws deter crimes baswed on such ineradicable motives as blind rage, greed, material interest, or the like.
5.25.2007 11:21am
Philistine (mail):


Turning to Michigan's hate crime laws, in my local circuit court there has been never been a prefered who has been charged with a hate crime against a non-prefered.



How do you know?

According to the Michigan State Police, there were 716 hate crimes in 2005. Of the 481 crimes which were otivated by race—194 (about 40%) were anti-white.

The report lists the crimes by reporting agency (and county as well)— yours still doesn't appear?
5.25.2007 11:36am
AK (mail):
Loafer wrote:

Oftentimes the only conduct that separates criminal conspiracy from an innocent act is speech.

Well, there's the rub: the act of forming a conspiracy using words is "conduct," not the type of political, religious, or artistic "speech" that the Constitution protects. More generally, words that have legally operative effect are not "speech."
5.25.2007 11:44am
Inquiring:
I am going to have to chime in with others here and say that the argument of motive being a determining factor in the severity of crimes is flawed.

Intent, not motive, is the factor.

1st degree murder is the intent and commission of a pre-meditated murder. Actual motive behind the murder is irrelevant to the charge itself.

2nd degree murder is the intent and commission of a murder without pre-meditation. Again motive has nothing to do with the actual charge, only whether or not the act was pre-planned.

Manslaughter is the murder of another without intent to commit murder.

And so on.

In all cases the crime itself exists despite motive. (Perhaps the argument could be made that motive is so ancillary because the same crime can be committed by differing individuals for wildly varying reasons?)

Motive can be used to establish intent and commission of a crime, yes, but it is never used in isolation. Not until Hate Crime laws anyways, where the motive becomes the crime.

Motive is already used by judges and juries in sentencing anyways, yes? That is the whole point of leeway in sentencing, right?
5.25.2007 8:49pm