Thinking About Hate Crimes

05/17/2011

The apparent random racial beating over the weekend of Matthew Yglesias, perhaps the most influential political blogger of his generation, raises questions about what ought to be considered a hate crime.

There’s a vast amount of confusion in our society because the megaphone is routinely seized by hate-filled pundits who denounce everybody they hate as being driven by hate. So, the concept of a "hate crime" is murky, to say the least.

But, society does have an interest in deterring through harsher penalties crimes not of passion but of premeditated malice, cold-blooded crimes that occur only because of animus toward groups. Quite possibly, "hate crimes" is the wrong term completely for these types of actions, but that seems to be what we are stuck with.

My view is that motivation for a crime should matter some in punishing the crime.

For example, by way of analogy, I particularly loathe witness-murdering.

Consider two homicides:

A man comes home and finds another man in bed with his wife. In a jealous rage, he strikes the man with a blunt object. He immediately calls 9-11 and asks for an ambulance for his victim.
Two men are robbing a liquor store with a confederate. One robber realizes that the lone customer in the store went to school with him and could identify him. He tells his colleague (in a conversation recorded on a hidden security camera’s microphone) that because he already has two strikes against him, if that customer testifies, he'll go to jail for life. So, he then shoots the customer and the clerk to silence them. There are no other motives for the murders.

I think that in an era of long sentences, the death penalty can play a useful role in stigmatizing and deterring cold-blooded witness-murdering, but it wouldn’t be right in the first case, a classic crime of passion.

Similarly, consider two crimes that might be subject to additional hate crime penalties:

A man comes home and finds another man in bed with his wife. In a jealous rage, he calls her a "bitch" and punches her.
Two men are sitting around bored and decide to go "polar bear hunting,"planning to punch any random white man they see walking through their neighborhood in the back of the head, then kicking him.

Now, it’s not uncommon for prosecutors to attempt to pile on hate crime penalties in cases where a member of a less legally privileged group uses, during a fit of rage, an epithet for a member of a more legally privileged group. But, clearly, the cuckolded man didn’t sock his cheating wife because she was a woman, but because she was cheating. Punishing him extra for saying the epithet "bitch" is severely confusing cause and effect for no good purpose in deterring future violence.

In contrast, the second case is one that the law might well use additional penalties to deter because, like witness-murdering, it’s rational and malign. There’s no other motive for attacking a random white man other than the satisfactions of attacking a random white man.

Or consider, these two cases:

Two men are sitting around talking angrily about their neighbor who dissed them yesterday and might be making time with one of the guys' woman. Then they see a man who kind of looks like the neighbor walking by in the dark. Enraged, and under incorrect apprehension of his identity, they punch random passerby Matthew Yglesias in the back of the head.
Two men are sitting around bored and decide to go "polar bear hunting" and thus punch in the back of the head the first white guy they happen to see walking by, who happens to be Matthew Yglesias.

The first case seems to me like a pretty average screwed-up crime among the screwed-up classes, which should be punished in a pretty average fashion — fairly harshly, according to my views, but there’s no obvious reason for incremental penalties. It wouldn’t be the kind of crime that strikes other as worth imitating.

The second case, however, seems like a classic racist hate crime. There was no motivation whatsoever for this violence to occur other than boredom and racial animus. Society has an interest in punishing more heavily in the name of deterrence otherwise pointless crimes carried out not in the heat of passion but with malice aforethought.

At minimum, society has an interest in keeping stuff like this from becoming fashionable. Say, or example, a third person videoed the attack on Yglesias, and the whole point of the attack was to have something cool to post on YouTube.

Granted, proving in court the lack of any other motive is often difficult, and so be it. Better ten guilty men go free and all that. But, it is reasonable to have the threat of additional penalties for violence carried out for rational but malign reasons, such as witness-murdering or polar bear hunting.

Of course, all this logic chopping isn’t very relevant to how most people think about hate crimes, which is in Who-Whom terms. Matthew Yglesias is extremely well-plugged into the world of Washington punditry, but it doesn’t occur to his peers that this attack on him could possibly be a hate crime … because he’s white.

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