On Hate Crimes
“Hate crime” legislation is one of the most illogical public policies in existence. The poorly thought out idea is that crimes motivated by the perpetrator’s prejudice toward the victim (because of the victim’s race, gender, sexual orientation, etc.) need to be discouraged, so such crimes deserve a harsher penalty.
The obvious problem with this thinking is that all crimes need to be discouraged, not just the ones that might have been caused by prejudice against members of so-called “protected groups”. (The existence of “protected groups” implies that there exist “unprotected groups” — so why are some people unprotected? So much for equal protection of the law…) It is just as necessary to discourage crimes committed for reason(s) other than prejudice as ones that are committed at least partly because of it. It ultimately makes no difference to the victim and his or her loved ones why the crime was committed, either — the effects of the crime (injuries, death, etc.) are the same whether the perpetrator is found to have committed a “hate crime” or not. To paraphrase Marisa Tomei’s character in My Cousin Vinny:
Your brains are lying on the ground in little bloody pieces. Now I ask you, would you give a f*** whether the SOB who shot you was prejudiced against you?
The result of a hate crime conviction is that the perpetrator receives a harsher penalty, but the victim is no more or less victimized.
A common justification for hate crime legislation is that certain types of crimes have a “history” of high rates, and therefore they should be designated hate crimes with harsher penalties to drive these rates down to the “historically” lower rates of other types of crimes. Of course, supporters of hate crime legislation rarely, if ever, cite statistics along with their claim and instead simply assume the “historical” rates are as they say. The actual “historical” rates often don’t agree with their assumptions, though. As an example, consider U.S. homicide rates from recent years broken down by race (white or black) of the offender and victim:
- In 2005 blacks were victimized at 6x the rate of whites.
- In 2005 blacks were also the offenders at 7x the rate of whites.
- From 1976 to 2005, 86% of white victims were killed by whites and 94% of black victims were killed by blacks.
Assuming the intraracial homicides were not “hate crimes” (what would that be, a self-hate crime?), these statistics tell us that interracial homicides (which may not have been motivated by race) actually have significantly lower rates than “non-hate” homicides in recent history (which is the most applicable historical timeframe, since it is the best reflection of today’s society and we have the most detailed statistics for it). Now maybe hate crime legislation has been fabulously successful at driving down the rates of homicides motivated by race, but if that’s the case then these statistics simply highlight how important it is to discourage all crimes regardless of motivation. If the harsher penalties of hate crimes have driven the rates of homicides motivated by race so low, how much lower would the number of intraracial homicides be if harsher penalties were used in those cases as well? On the other hand, maybe hate crime legislation hasn’t had a significant effect on the rate of homicides motivated by race — in which case hate crime legislation has not only been unsuccessful and pointless, but targeted the wrong type of crime! Using the logic that crimes with a “history” of higher rates should be designated hate crimes and carry harsher penalties, we should have designated intraracial homicides to be hate crimes (especially black on black homicides). Curiously, no one is advocating hate crime designation for black on black homicides, though.
Many other types of violent crimes have higher intraracial than interracial rates, too. The U.S. Department of Justice reports statistics on criminal victimization every year, and Table 42 of the most recent report breaks down victims and offenders by race for various violent crimes. For violent crimes in general, about two thirds of all violent crimes committed against whites were committed by white offenders and also about two thirds of all violent crimes committed against blacks were committed by black offenders. On the other hand, only 15.4% of violent crimes committed against whites were committed by black offenders and only 15.9% of violent crimes committed against blacks were committed by white offenders. Put another way, white offenders committed about 1,880,000 (67.4% of 2,788,600) violent crimes against whites and about 91,000 (15.9% of 570,550) violent crimes against blacks while black offenders committed about 430,000 (15.4% of 2,788,600) violent crimes against whites and 369,000 (64.7% of 570,550) violent crimes against blacks. This means that white offenders chose a black victim (between a white or black victim) only about 5% of the time while black offenders chose a white victim (between a white or black victim) about 55% of the time. Also notable is the fact that rape and sexual assaults have the highest intraracial rates: offenses committed against whites were committed by white offenders 74.9% of the time, and offenses committed against blacks were committed by black offenders 74.8% of the time. In particular, while black offenders committed 16.4% of offenses against whites, white offenders committed 0% (10 or fewer cases) of offenses against blacks! Hate crime supporters often try to justify their position by raising the specter of a white supremacist attacking blacks simply out of racism, but the statistics show that white offenders usually target a white victim and rarely target a black victim. These statistics have the same trend for many years, too (reports from other years such as 1995 can be viewed by modifying the last two digits of the link to a given year’s report, and these reports have the same statistics in Table 42). Again, hate crimes completely fail to address the types of crimes with the highest rates.
Another common justification for hate crime legislation is the idea that harsher penalties for crimes motivated by prejudice are necessary to reduce the risk of retaliatory crimes committed by people from the “protected group” that the offender was allegedly prejudiced against. Using the standard example of a white offender committing a crime against a black victim because of the latter’s race, the idea is to prevent retaliatory crimes committed by the black community out of anger that the white offender was not punished enough. Hate crime prosecutions, however, must highlight the alleged prejudice of the accused in order to convict him or her of a hate crime; this creates exactly the “us vs. them” mentality that racism, sexism, etc. thrive on. Prosecuting the same defendant without necessarily trying to prove a specific motive based on prejudice may not cause the alleged victim’s community to view the crime as one based on prejudice, and therefore the alleged victim’s community may not commit retaliatory crimes. Whether retaliatory crimes are actually reduced by hate crime legislation or not, attempting to satisfy the bloodlust of the alleged victim’s community with a harsher penalty for the offender is not justice.
Proving a motive of prejudice at trial is also unnecessary for securing a conviction. In order to prove that someone has committed a crime, one must prove the elements of the alleged crime: these are generally (depending on the specific legal system) the guilty act (actus reus) and the intent to commit the crime (mens rea). In proving intent, a prosecutor may often attempt to show that the accused has a motive (a reason why the accused intended to and did commit the crime); however, it doesn’t matter what motive(s) the accused had/has or even if a discernible motive exists.* Thus, it is unnecessary to attempt to prove the existence of a motive based on prejudice if intent can be proved without a motive or if there are other possible motives (a person of one race who robs someone of another race, for example, may have committed the robbery simply due to the offender’s poverty). If one wishes to deter crimes committed due to the offender’s prejudice with a harsher penalty then it is simpler and more logical to simply use harsher penalties for all crimes committed (whether due to the offender’s prejudice or not): this not only deters crimes committed without a motive of prejudice, but prevents a prosecutor from having to needlessly prove a specific motive of prejudice in addition to the elements of the crime in order to make it possible to apply the harsher penalty.
Hate crime legislation therefore needlessly adds an element to prove about a potential crime (in order to apply a harsher penalty), needlessly highlights tensions between social groups, and addresses the types of crimes (those committed against so-called “protected groups”) which have historically low rates anyway. Arguably, it also violates the principle of equal protection of the law (which is explicitly stated in the 14th Amendment to the U.S. Constitution) since someone who is not a member of a “protected group” does not enjoy the added protection that hate crime legislation (which is not in the U.S. Constitution) purportedly provides. If the penalty for committing a hate crime is good enough for protecting the so-called “protected groups” then it’s also good enough to protect members of unprotected groups.
* To see why the guilty act and intent are necessary and sufficient to secure a conviction (but motive is not necessary), consider the following scenario: an individual kills a completely random stranger for no discernible reason. If one can prove that the individual killed the stranger (the guilty act) and intended to kill the stranger (i.e. intended to commit a crime) then it doesn’t matter if the killing was so random that no one knows the reason (motive) why the crime was committed. On the other hand, suppose an unaware pedestrian runs out into the street and is hit and killed by a car: even if the driver had a motive (perhaps even one of prejudice against the pedestrian) and even though the driver committed the guilty act, if the driver can prove that he did not intend to hit the pedestrian (perhaps he slammed on the brakes but was unable to stop in time) and that he was not criminally negligent (e.g. driving while intoxicated, which is considered a type of intent) then he will be rightfully acquitted.