More Than Just a Thought Crime? A Retributivist View of Hate Crime Legislation

Travis Harper

Most are familiar with the common conception of a hate crime: a violent act that involves some form of animus towards a particular group, usually a protected class. “Hate crimes” are considered to be more morally reprehensible than their counterparts that are not motivated by any particular animus or hatred. Accordingly, different jurisdictions have enacted legislation criminalizing these types of acts, oftentimes associating them with harsher penalties than crimes committed for other reasons. Still, while hate crimes seem like a simple and intuitive concept, the actual statutes that different legislatures enacted to criminalize them tend to vary in their definitions and application. In the United States, for example, anyone who “willfully causes bodily injury to any person... because of the actual or perceived race, color, religion, or national origin of any person” shall be found guilty of a federal hate crime (1). Germany, however, takes a different approach. While “under German criminal law, ‘politically motivated’ (2) hate crimes do not constitute explicit offenses or give rise automatically to higher sentences,” judges have a wide latitude to take aggravating factors into account when sentencing (3). Germany does, however, have a statute which criminalizes those who “incite hatred against” and “violate the human dignity” of populations or individuals on “account of their belonging to a... national, racial, or religious group or a group defined by their ethnic origin” (4) Clearly, the concept of a hate crime is not as intuitive as it seems to be. Thus, the question remains: What is a “hate crime”? Moral and legal theorists have wrestled with this same question, along with raising other concerns. “Hate crimes” are unique in that their mens rea element, the requisite intent of the perpetrator in order to be found guilty of the crime, typically entails proving some form of hatred or bias. Thus, hate crimes effectively criminalize specific “hateful” mental states. Whether or not a person has committed a hate crime does not depend on their actual physical actions; rather, it depends on their motivations in doing so—whether they did so because of some animus towards their victim or a particular group of people. Naturally, this begs the question: To what extent is this justified? Can we punish offenders for their motivations in committing a crime along with their actions? Heidi Hurd, lawyer and legal theorist, sought to answer questions akin to these in her article, “Why Liberals Should Hate ‘Hate Crime Legislation’.” In doing so, Hurd argues that when “hatred and bias are construed as mens rea elements... they [become] alien to traditional criminal law principles”(5). She also argues that hate crime legislation—at least how it is conceived of today—is unjustifiable. Specifically, Hurd outlines that hate crime legislation has no place within our “act-centered theory of criminal punishment” and “liberal theory of legislation” because of the way it effectively criminalizes “emotional states... [that] constitute standing character traits rather than occurrent mental states (intentions, purposes, choices etc.)” (6). Hurd’s critique is quite comprehensive and forces all advocates for hate crime legislation to ask themselves: is there any justification for hate crime legislation that is in line with a liberal theory of legislation? This is the question that this paper seeks to answer. Through a critical analysis of Hurd’s argument, references to other legal theorists and philosophers, and empirical evidence, I will argue that within a retributivist theory of punishment, hate crime legislation is justifiable and morally accept- able. A retributivist theory of punishment prioritizes proportionality, the principle that the punishment associated with a crime varies based upon the severity of the crime, or how morally reprehensible the crime is, which can be determined by the amount of harm an action causes. I will argue that hate crimes cause more severe harm to the victim than do crimes committed for other reasons. Further, since hate crimes are unique in that they cause harm to both the victim and their community, they constitute both a public and private harm. Thus, not only is it morally acceptable, but rather it is required to make hate crimes distinct within the criminal law with increased punishment compared to crimes that are not committed due to any particular animus. Further, I will argue that hate crime legislation does not merely criminalize mental states or political beliefs; rather it criminalizes the explicit intent to cause increased harm to a specific group of people. This is a standard that any hate crime statute should make abundantly clear. It is worthwhile to clarify what this paper does not seek to address. This paper will not weigh the merits of a retributivist’s conception of punishment against that of a consequentialist; surely, a consequentialist’s justification of hate crime legislation would be vastly different, most likely focusing on the possible benefit that could arise from specifically criminalizing hate crimes. Additionally, the paper will not analyze hate crimes and hate crime legislation from a sociological perspective; rather, it will focus on the moral and philosophical implications that legislators must consider when drafting hate crime legislation.

Hurd’s Argument Within her critique of hate crime legislation, Hurd offers two possible arguments in support of making hate crimes distinct within the criminal law, entailing harsh- er punishment. The first of these relies upon a precedent within Anglo-American common law. Specifically, it is not uncommon for those who have “particularly vicious reasons for action” to be more harshly punished (7). For example, some jurisdictions have enhanced punishments for pre-meditated murder, those that deliberately take the life of another. Hurd also highlights the existence of “specific intent crimes,” or “crimes that require defendants to commit prohibited actions with certain further purposes” (8). Burglary, for instance, is an example of a specific intent crime as it requires that someone “must break and enter with some further intention, say to steal, rape, or kill” (9). Hurd posits that neither of these doctrines serve as justifications for hate crime legislation, primarily due to her contention that “hatred” and “bias” are emotional states, not occurrent mental states like intentions. If this is the case, then hate crime legislation is inherently criminalizing mental states, leaving those who support hate crime legislation with two lines of argumentation. Firstly, they might argue that the types of hatred and bias typical to hate crime legislation, contending that, for example, “racial hatred or gender bias is morally worse than greed, jealousy, and revenge” (10), or any other motive for that matter. Secondly, they might further a utilitarian argument, claiming that “hatred and bias are uniquely responsive to criminal sanctions in a way that greed, jealousy and vengeance are not” (11). Both of these arguments, however, violate liberalism in the way that they arbitrarily choose a specific motive to be either considerably more morally reprehensible or responsive to criminal sanctions. I take two main responses to Hurd’s argument. First, I take issue with Hurd’s characterization of hatred and bias when they are construed as mens rea elements; hatred and bias can be considered to be occurrent mental states when they are understood as the intent of the actor to create the increased harms associated with hate crimes, not just the actor’s bigoted views in and of themselves. Second, even if this were the case, and hate crimes did criminalize bigoted views, I argue that considering hatred and bias to be particularly culpable mental states is justified. Hate crimes are considerably more morally reprehensible than crimes committed for other reasons because of the aforementioned increased harm they cause, and they deserve increased punishment accordingly. I will address these two concerns separately.

Hate Crimes and Specific Intent Crimes One of the key concerns that Hurd addresses is the extent to which hate crime legislation can be drafted within the bounds of liberalism and Anglo-American Common Law. One of Hurd’s main contentions within her article is that hate crime legislation, at least in the way that it is conceived of today, criminalizes emotions or dispositions, as opposed to occurrent mental states. I argue that this is not the case, because of the fact that hate crime legislation does not and should not criminalize the mere fact that a perpetrator holds a specific belief; rather, it should criminalize their intention to cause specific harms to their victim and the victim’s community at large. Michael Moore, in his work The Moral Worth of Retribution, defines “intentions”—within a retributivist theory of punishment—as “function states whose roles are to mediate between background states of motivation and those (bodily) motion-guid- ing states of volition that are parts of actions” (12). Moore illustrates this distinction through the analogy of a person deciding to get their hair cut. The background state of this action is that they “desire to get a haircut,” their intention is the belief that “if [they] go to the barber shop, [they] will get a haircut” and finally, the “motion-guiding state of volition” is that they indeed make the decision in their mind to “go to that barber shop” (13). Thus, the intention that is relevant in regards to criminal liability is one in which the actor decides on a means to reach a specific goal. Applying this framework to hate crimes, the “emotional states’’ that Hurd references are not the intentions that are legally relevant; rather, they are background states of motivations. They are the deep desires of the actor. The intention, however, is the actor’s decision to act upon their bigoted motivations in order to accomplish a variety of goals, whether that be spreading a message, or intimidating members of the group they are targeting. The intention that is legally relevant is that an actor decided to resort to violence in order to spread their bigoted beliefs. Admittedly, most hate crime statutes do not make clear this distinction. Often, they simply mandate that the perpetrator chose their victim “for reason of” one of their specific identities. Thus, any hate crime statute must be clear in that if someone is to be convicted of a hate crime, then they must have intended to cause some specific harm to a particular community. With this understanding of intentions, the mens rea element of hate crimes does not criminalize an emotional state; rather, it criminalizes a specific intent to cause harm, not just to a person but to a broader community. As I will argue later, these harms are legally relevant because they cause hate crimes to be particularly more morally reprehensible than crimes committed for other reasons. Hurd’s critique, in this case, is mostly doctrinal, but it does carry key moral implications. Even if a hate crime causes considerably more harm, the physical action is not different from crime that is completely devoid of any hatred or bias motivation. Is it reasonable to criminalize someone based on the fact that they have hateful beliefs? Is this a violation of the liberalism that grounds Anglo-American common law? The next section of this paper seeks to answer these questions by discussing the morality of hate crimes.

Hate Crime Legislation and the Harm Principle In order to justify the distinction within the criminal law between hate crimes and other crimes—particularly when they tend to carry harsher punishment—we must identify a principle that can aid in determining which actions are crimes, and the extent to which they should be punished, if possible. This principle must have two characteristics: (1) It must align and be consistent with a retributivist theory of punishment by being sufficiently “backward-looking” and (2) it must allow for the differentiation of crimes beyond mere moral intuition— differentiating crimes that are “worse” than others, deserving harsher punishment, while aligning with a liberal theory of punishment. John Rawls has famously characterized this theory as one that emboldens the state to enforce the “right” and not the “good” (14). These two specifications ensure that the justificatory logic underpinning hate crime legislation aligns with traditional Anglo-American common law principles, and falls within the scope of this paper and Hurd’s argument. The first of these specifications naturally flows from the scope of this essay. The principle used to justify any sort of hate crime legislation must be “backward-look- ing” or focused on the act itself. This is in opposition to any sort of principle or justification that is consequentialist or “forward-looking.” A consequentialist “approves or disapproves of every action whatsoever, according to the tendency it appears to have to augment or diminish the happiness of the party whose interest is in question” (15), with the “party” at hand being society as a whole, or even the actor themselves. Clearly, a consequentialist’s justification of hate crime legislation is different than that of a retributivist, which this paper intends to address. The second consideration is directly relevant to Hurd’s argument and, naturally, my critique thereof. One of Hurd’s primary critiques of hate crime legislation is that, if “hate” as a mens rea element is not considered to be an “occurrent mental state,” then hate crime legislation effectively criminalizes emotional states. Further, Hurd argues that criminalizing emotional states shifts from a “liberal theory” to a “perfectionist theory” of criminal law. This “liberal theory” of the criminal law extends from the general theory of Political Liberalism. Specifically, in draft- ing legislation, criminal or otherwise, the “government should be neutral among competing conceptions of the good life” (16). Within a society, there will be multiple conceptions of the good life, and the government should only be emboldened to enforce rights that are the result of an “overlapping consensus” that mediates “among conflicting views” (17). Hatred and bias, when not directly connected to an action, are generally considered to be moral beliefs or character traits—and as Hurd notes, “liberals have long believed that theories that construe certain character traits as virtuous or vicious belong to the province of the Good, rather than the Right” (18). Considering that I intend to argue that hate crimes primarily carry harsher sentences due to their being significantly more morally reprehensible than crimes committed for other reasons, the principle used to justify this distinction must aid us in determining which crimes are indeed “more morally reprehensible” beyond one’s moral intuition which would align with a liberal theory of punishment. It is quite easy and normal to determine what crimes “feel” more morally reprehensible based upon our own individual moral intuitions. Legislators, however, cannot simply draft criminal legislation based upon their own subjective moral intuitions on a case to case basis; that would not be entirely consistent with political liberalism. Any principle that we use in determining which crimes are more morally reprehensible must not only be applicable to hate crimes, but to any crime which is being considered. As Aristotle notes, “all law is universal” and legislators must take into account and legislate based upon “the usual case” (19). Thus, the principle used to justify hate crime legislation must also be one that is universally applicable. The principle that is most fitting is the “harm principle,” or the concept that the only actions that can be considered crimes are those that cause harm to others or the public. The most classic explication of this principle can be found in the work of John Stuart Mill, in which he claims that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others” (20). Put simply, the government can justify criminalization and punishment, overriding some individual rights, based upon the degree to which one being punished has caused “harm” to others. This principle aligns with the two specifications outlined earlier. The harm principle is sufficiently retributivist; If one were to justify punishment based upon the harm principle they would be focusing on the actions of the individual. Applying the harm principle compels legislators to ask: How much harm did the individual cause in their actions? The answer to this question directly affects whether or not their actions are considered criminal and the extent to which they should be punished. Further, Mill was an ardent liberal, and naturally, the “harm principle” aligns with a liberal theory of punishment. The harm principle works upon the liberal logic that an individual has the right not to be subjected to undue harm. While the harm principle does meet the specifications laid out earlier, “nowhere does [Mill] give an explicit general stipulation” as to what constitutes harm. In order to understand how hate crimes should be considered under the harm principle, we must further define our understanding of “harm” (21). Joel Feinberg, in his work Harm to Others, provides a useful definition of “harm.” Concretely, Feinberg defines it as a “setback to interests” (22) that can relate to an individual or to a wider group of people, where interests are “a miscellaneous collection, [consisting] of all those things which one has a stake” (23). While there are nuisances that could be considered harms—a person’s stock performing poorly, for example, could certainly be understood as a setback to interest—these nuisances only become harms in the legal sense when they are the results of an invasion by others. Further, Feinberg provides that this “invasion” becomes legally relevant if the actor is “in a worse condition than [they] would have otherwise been had the invasion not occurred at all” (24). Take, for example, an instance of a person being physically violent towards another. Physical violence towards another person to which they did not consent would certainly be a setback to the victim’s interests—perhaps to their interests in their own health and wellbeing, especially if they had been injured. Further, they would most definitely be in a worse condition due to the physical “invasion” by the other person. Additionally, harms can also manifest themselves as public or private harms. There are many crimes that most would consider to be harms that do not thwart the interest of one specific person. Take, for instance, those who counterfeit money; they are not harming any one person; rather, they are harming society as a whole, thwarting the interests of society by negatively affecting the economy. Working with this understanding of harm and how it operates within the harm principle, we can begin to analyze hate crimes and the harms that they cause. Subsequently, we can begin to analyze whether or not they are considerably more morally reprehensible, warranting increased punishment. I argue that hate crimes indeed cause significantly more harm because they cause an increased amount of harm to the individual in addition to causing public harm as well. Hate crimes cause increased private harm to their victims given that hate crimes do not just attack a person; they attack their identity as well, causing a fractured sense of security and identity and leading to a myriad of negative effects, or harms. “Crimes... communicate a message to the victim that they do not count and are not worthy of respect” (25) and once someone becomes the victim of a hate crime, they begin to cope and rationalize why they specifically were targeted. While those who aren’t victims of hate crimes could just cite that they were “at the wrong place at the wrong time,” victims of hate crimes cannot adopt this as a possibility. When one is the victim of a hate crime, they will know that they have been target- ed based upon an aspect of their identity, and this in turn causes their identity to become “central to their internal awareness of why they have been victimized” (26). The unique way in which hate crimes target identity causes a variety of immeasurable harms to victims. They often cite increased sentiments of shame and guilt compared to those that have been victimized for other reasons. Not only that, hate crime victims report increased levels of anxiety and depression compared to those that have been victimized for other reasons. Certainly these negative effects are setbacks to interests as defined by Joel Feinberg. They fracture the victim’s sense of self and cause actual physical ailments, leaving them in a much worse condition than that in which they would have been if they had not been attacked at all, and especially if they had not been victimized because of their identity. Beyond the increased harms that hate crimes cause to their victims, they also cause additional public harm uncharacteristic of crimes committed for other reasons: harm caused to the wider community of the targeted group. While hate crimes are attacks on specific individuals, they are more so “symbolic messages to society about the worthiness of certain groups of people” (27). This message is a signal to minority communities that they are “unequal, unwelcome and undeserving of social respect,” and more pertinently, this message is a threat as well. The message of hate crimes creates a heightened sense of vulnerability and insecurity amongst minority communities that leads to an intense fear of victimization, inhibiting community members from living life without extreme caution. Members of minority communities that have been affected by hate crimes often note that the “fear and anxiety” felt by the victims of hate crimes “spreads to other community members” (28). This can be considered a public harm within the framework of the harm principle that I outlined earlier. The effects that hate crimes cause to minority communities can be defined as a setback to interests; again, it is certainly within our interest to be able to live our lives without fear of persecution or assault. Hate crimes deprive minority communities of their ability to do so. When hate crimes are considered within the framework of the harm principle, it is clear that they are more morally reprehensible. Does this naturally lend itself to the conclusion that they deserve increased punishment? I argue that, within a retributivist theory of punishment, it does lend itself to this conclusion given the principles of proportionality. Within the retributive model proposed by Immanuel Kant, the degree of punishment should adhere to “the principle of equality, by which the pointer of the scale of justice is made to incline no more to the one side than the other” (29). Considering the concept of proportionality within the framework of the harm principle, the degree of punishment for a crime should be proportional to the harm created by the crime. If that is the case, then hate crimes surely warrant increased punishment because of the increased harms that they cause, not only to their direct victims, but also to the communities that they affect.

Conclusion This paper sought to provide a justification for hate crime legislation that con- formed to the principles of liberalism and aligned with a retributive theory of punishment. I found that harsher punishment for violent crimes related to hatred or bias towards a specific group can be justified when examined using the harm principle. Because hate crimes cause considerably more harm to their victims and minority communities, they are considerably more morally reprehensible than crimes committed for other reasons. When assessing whether or not these increased harms warrant increased punishment, we can rely on the notion of proportionality —that punishment for a crime should be proportional to the harm it creates. When examined in this way, increasing criminal sanctions for hate crimes is justified. Further, there are a variety of considerations that need to be taken into account when drafting hate crime legislation: specifically, hate crime legislation should be written to construe the mens rea element of the crime to be the intent to cause the increased harms to the individual and the minority community. Hate crimes are intuitively more morally reprehensible. At first we may think that they deserve increased punishment based upon how these crimes make us feel; however, we should constantly question ourselves, examining whether our gut moral instincts align with the moral doctrines that guide our actions and the criminal law. In this case, hate crimes do indeed deserve increased punishment based upon these moral doctrines. Thus, legislatures intending on criminalizing hate crime legislation, or any crime for that matter, should not only take doctrinal considerations into account, but should also consider the moral justifications for why these actions deserve criminal liability. If this is the case, the law will begin to be much more consistent and comprehensive with the moral doctrines that we have adopted as a society.


1 “Hate Crime Acts,” 18 U.S.C § 249 (2009), prelim-title18-section249&num=0&edition=prelim. 2 According to the German Ministry of Justice and Consumer Protection, a “politically motivated” crime includes crimes committed for reasons of the victim’s race, “political opinion, nationality, ethnicity, race, skin color, religion, belief, origin, disability, sexual orientation.” 3 Human Rights Watch, “The State Response to ‘Hate Crimes’ in Germany: A Human Rights Watch Briefing Paper,” Human Rights Watch, December 9, 2011,

4 “Incitement of Masses,” German Criminal Code § 130 (1998), stgb/englisch_stgb.html#p1241. 5 Heidi Hurd, “Why Liberals Should Hate ‘Hate Crime Legislation,’” Law and Philosophy 20, no. 2 (2001): 216.

6 Hurd, 216.

7 Ibid, 218.

8 Ibid, 218.

9 Ibid, 218.

10 Ibid, 226.

11 Ibid, 226.

12 Michael Moore, The Moral Worth of Retribution (Oxford University Press, 2010), 449.

13 Michael Moore, “The Metaphysics of Basic Acts III: Volitions as the Essential Source of Actions,” in Act and Crime: The Philosophy of Action and Its Implications for Criminal Law (Oxford University Press, 1993), 136–37.

14 John Rawls, Political Liberalism, Expanded Ed., Columbia Classics in Philosophy (Columbia University Press, 2005).

15 Jeremy Bentham, “An Introduction to the Principles of Morals and Legislation” (Oxford: Clarendon Press, 1907), 16 Michael J. Sandel, “Political Liberalism,” Harvard Law Review 107, no. 7 (1994): 1766. 17 Sandel, 1775. 18 Hurd, 230.

19 Aristotle, “Politics,” trans. Benjamin Jowett, 1994,

20 John Stuart Mill, On Liberty (Batoche Books, 1859), 13.

21 D.G. Brown, “The Harm Principle,” in A Companion to Mill, ed. Christopher Macleod and Dale E. Miller (John Wiley & Sons, 2016), 411. 22 Joel Feinberg, Harm to Others, vol. 1, 4 vols. (Oxford University Press, 1984).

23 Feinberg, 1:38.

24 Feinberg, 1:34.

25 Mark Austin Walters, “The Harms of Hate Crime: From Structural Disadvantage to Individual Identity,” in Hate Crime and Restorative Justice (Oxford University Press, 2014), 71.

26 Walters, 73.

27 Mark Austin Walters, 84.

28 Ibid, 84.

29 Morris J. Fish, “An Eye for an Eye: Proportionality as a Moral Principle of Punishment,” Oxford Journal of Legal Studies 28, no. 1 (2008): 63.

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