Why Hate Crime Laws are Stupid

[manifold]

Here are my reasons for concluding that hate crime laws are stupid. Please disagree with any or all of them as thoughtfully and reasonably as you are able.

1. They are unneccesary. The criminal acts themselves are already against the law and judges already have significant latitude when it comes to sentencing.

2. Juries are already asked to bear the heavy burden of determining whether the defendant is actually guilty of committing the crime for which he is accused. To burden the jury further with a secondary determination regarding the defendants motives is unfair to both jury and defendant.

3. Introducing the motivation element to the trial process naturally biases the jury toward believing the defendant is guilty of committing the crime in the first place.

4. Perhaps a bit more nebulous, but it seems to me that hate crime laws represent the implicit policing of thought.

 

[xotoxi]

1. They are unneccesary. The criminal acts themselves are already against the law and judges already have significant latitude when it comes to sentencing.

So in essense, the judge could use his/her latitude without any basis in law and without any specific to determine if the crime was significantly impacted by hatred for a group, and increase the punishment as they see fit.

2. Juries are already asked to bear the heavy burden of determining whether the defendant is actually guilty of committing the crime for which he is accused. To burden the jury further with a secondary determination regarding the defendants motives is unfair to both jury and defendant.

We don't want to burden the juries?

3. Introducing the motivation element to the trial process naturally biases the jury toward believing the defendant is guilty of committing the crime in the first place.

That is a good point...

Maybe these laws could be enforced as part of sentencing and thus they could not taint the jury's judgement of the crime itself.

4. Perhaps a bit more nebulous, but it seems to me that hate crime laws represent the implicit policing of thought.

Nope. I've already given my opinion on that. There would have to be specific evidence that the individual had hatred towards a group, not just the individual.

Conversely, the "policing of thought" would also be applicable when deciding if a murder is premeditated or not.

 

[AllieBaba]

Hate laws are a form of discrimination.

 

[manu1959]

crimes are a function of hate by definition......calling it a hate crime is redundant....

it is like the insanity defense.....people that commit crimes be definition are not sane....sane people do not commit crimes....

 

[xotoxi]

crimes are a function of hate by definition......calling it a hate crime is redundant....

Crimes are a function of hate of an individual.

Hate crimes are a function of hate to a group to which the individual belongs. The individual happens to just be the object from that group on which the crime is committed.

 

[del]

crimes are a function of hate by definition......calling it a hate crime is redundant....

Crimes are a function of hate of an individual.

Hate crimes are a function of hate to a group to which the individual belongs. The individual happens to just be the object from that group on which the crime is committed.

a crime is a crime. if i kill someone, are they more dead because they possibly represent some group i hate? sorry, that dog won't hunt.

 

[editec]

Here are my reasons for concluding that hate crime laws are stupid. Please disagree with any or all of them as thoughtfully and reasonably as you are able.

1. They are unneccesary. The criminal acts themselves are already against the law and judges already have significant latitude when it comes to sentencing.

MOTIVE and OUTCOME TO THE VICTIM should certainly play a role in how our laws work.

If I spray paint somebody's house with profanities I am guilty of vandalism.

If I spray paint GET OUT OF TOWN HONKEY on that same house, my motive and the effect that has on my VICTIM is significantly different.

I think it right that our laws take such things as that into account.

You don't?

2. Juries are already asked to bear the heavy burden of determining whether the defendant is actually guilty of committing the crime for which he is accused. To burden the jury further with a secondary determination regarding the defendants motives is unfair to both jury and defendant.

Yet that is EXACTLY what they are asked to do in many cases not involving hate crimes.

Run somebody over and see if MOTIVE doesn't get at least as much play as the event itself.

3. Introducing the motivation element to the trial process naturally biases the jury toward believing the defendant is guilty of committing the crime in the first place.

Being arrested for ANYTHING puts one in that position.

4. Perhaps a bit more nebulous, but it seems to me that hate crime laws represent the implicit policing of thought.

Agreed.

And that is obviously the problem of those laws.

They give our government far too much leeway to punish people for things that might not really be a crime.

Every law, just like every invention, can be beneficial to us or can be used as a weapon against us.

That is exactly why it is so god damned important for citizens to pay attention to what's happening and to get involved if they can.

 

[AllieBaba]

crimes are a function of hate by definition......calling it a hate crime is redundant....

Crimes are a function of hate of an individual.

Hate crimes are a function of hate to a group to which the individual belongs. The individual happens to just be the object from that group on which the crime is committed.

a crime is a crime. if i kill someone, are they more dead because they possibly represent some group i hate? sorry, that dog won't hunt.

It used to be a crime for black people to use the same bathrooms as whites. Just because a crime is a crime doesn't make it reasonable.

Hate crimes are a tool used to engender hatred and racial and cultural tension, nothing more. There is no reason in the world that a person who kills someone because he's BLACK should get a stiffer (or lighter) sentence than someone who kills someone because he wants his car. Killing is killing.

Likewise, we have freedom of speech. There's no reason why a person who incites people to riot because they don't like a verdict passed down in Supreme Court should get a lesser sentence than a person who attempts to incite people to riot because they object to homosexual marriages.

 

[Ravi]

Crimes are a function of hate of an individual.

Hate crimes are a function of hate to a group to which the individual belongs. The individual happens to just be the object from that group on which the crime is committed.

a crime is a crime. if i kill someone, are they more dead because they possibly represent some group i hate? sorry, that dog won't hunt.

It used to be a crime for black people to use the same bathrooms as whites. Just because a crime is a crime doesn't make it reasonable.

Hate crimes are a tool used to engender hatred and racial and cultural tension, nothing more. There is no reason in the world that a person who kills someone because he's BLACK should get a stiffer (or lighter) sentence than someone who kills someone because he wants his car. Killing is killing.

Likewise, we have freedom of speech. There's no reason why a person who incites people to riot because they don't like a verdict passed down in Supreme Court should get a lesser sentence than a person who attempts to incite people to riot because they object to homosexual marriages.

So...if we ever catch bin laden we should only charge him with multiple manslaughter?

 

[AllieBaba]

Here are my reasons for concluding that hate crime laws are stupid. Please disagree with any or all of them as thoughtfully and reasonably as you are able.

1. They are unneccesary. The criminal acts themselves are already against the law and judges already have significant latitude when it comes to sentencing.

MOTIVE and OUTCOME TO THE VICTIM should certainly play a role in how our laws work.

If I spray paint somebody's house with profanities I am guilty of vandalism.

If I spray paint GET OUT OF TOWN HONKEY on that same house, my motive and the effect that has on my VICTIM is significantly different.

I think it right that our laws take such things as that into account.

You don't?




Yet that is EXACTLY what they are asked to do in many cases not involving hate crimes.

Run somebody over and see if MOTIVE doesn't get at least as much play as the event itself.





Being arrested for ANYTHING puts one in that position.

4. Perhaps a bit more nebulous, but it seems to me that hate crime laws represent the implicit policing of thought.

Agreed.

And that is obviously the problem of those laws.

They give our government far too much leeway to punish people for things that might not really be a crime.

Every law, just like every invention, can be beneficial to us or can be used as a weapon against us.

That is exactly why it is so god damned important for citizens to pay attention to what's happening and to get involved if they can.

So an ex husband who spray paints "Move you fucking bitch" is less accountable, and less of a threat, and has less of an effect, than someone who spray paints "Honky" on someone's garage?

What a joke. THe thought police have arrived and they aren't going any time soon.

 

[manu1959]

a crime is a crime. if i kill someone, are they more dead because they possibly represent some group i hate? sorry, that dog won't hunt.

It used to be a crime for black people to use the same bathrooms as whites. Just because a crime is a crime doesn't make it reasonable.

Hate crimes are a tool used to engender hatred and racial and cultural tension, nothing more. There is no reason in the world that a person who kills someone because he's BLACK should get a stiffer (or lighter) sentence than someone who kills someone because he wants his car. Killing is killing.

Likewise, we have freedom of speech. There's no reason why a person who incites people to riot because they don't like a verdict passed down in Supreme Court should get a lesser sentence than a person who attempts to incite people to riot because they object to homosexual marriages.

So...if we ever catch bin laden we should only charge him with multiple manslaughter?

it was self defense and it was an inside job.....bush and the jews did it....remember.....

 

[Amanda]

Thanks for starting this thread Mani.

 

[xotoxi]

a crime is a crime. if i kill someone, are they more dead because they possibly represent some group i hate? sorry, that dog won't hunt.

It used to be a crime for black people to use the same bathrooms as whites. Just because a crime is a crime doesn't make it reasonable.

Hate crimes are a tool used to engender hatred and racial and cultural tension, nothing more. There is no reason in the world that a person who kills someone because he's BLACK should get a stiffer (or lighter) sentence than someone who kills someone because he wants his car. Killing is killing.

Likewise, we have freedom of speech. There's no reason why a person who incites people to riot because they don't like a verdict passed down in Supreme Court should get a lesser sentence than a person who attempts to incite people to riot because they object to homosexual marriages.

So...if we ever catch bin laden we should only charge him with multiple manslaughter?

No. Accessory to multiple manslaughter, and accessory to entering a cockpit.

 

[editec]

Here are my reasons for concluding that hate crime laws are stupid. Please disagree with any or all of them as thoughtfully and reasonably as you are able.



MOTIVE and OUTCOME TO THE VICTIM should certainly play a role in how our laws work.

If I spray paint somebody's house with profanities I am guilty of vandalism.

If I spray paint GET OUT OF TOWN HONKEY on that same house, my motive and the effect that has on my VICTIM is significantly different.

I think it right that our laws take such things as that into account.

You don't?




Yet that is EXACTLY what they are asked to do in many cases not involving hate crimes.

Run somebody over and see if MOTIVE doesn't get at least as much play as the event itself.





Being arrested for ANYTHING puts one in that position.



Agreed.

And that is obviously the problem of those laws.

They give our government far too much leeway to punish people for things that might not really be a crime.

Every law, just like every invention, can be beneficial to us or can be used as a weapon against us.

That is exactly why it is so god damned important for citizens to pay attention to what's happening and to get involved if they can.

So an ex husband who spray paints "Move you fucking bitch" is less accountable, and less of a threat, and has less of an effect, than someone who spray paints "Honky" on someone's garage?

What a joke. THe thought police have arrived and they aren't going any time soon.

Move you fucking bitch is a hate crime.

...and. just for added effect it might be also be construed as credible threat, which is still another crime.

As to

THe thought police have arrived and they aren't going any time soon.

Though crimes have always been with us.

Remember the various red scares this nation went through?

Remember black listing?

 

[Diuretic]

Here are my reasons for concluding that hate crime laws are stupid. Please disagree with any or all of them as thoughtfully and reasonably as you are able.

1. They are unneccesary. The criminal acts themselves are already against the law and judges already have significant latitude when it comes to sentencing.

2. Juries are already asked to bear the heavy burden of determining whether the defendant is actually guilty of committing the crime for which he is accused. To burden the jury further with a secondary determination regarding the defendants motives is unfair to both jury and defendant.

3. Introducing the motivation element to the trial process naturally biases the jury toward believing the defendant is guilty of committing the crime in the first place.

4. Perhaps a bit more nebulous, but it seems to me that hate crime laws represent the implicit policing of thought.

3.is interesting, I hadn't considered that one, good point. But with proper judicial direction to the jury that should be sorted out.

They exist to provide a greater deterrence, that's their only jurisprudential reason for existence at least. There are always going to be legislators who want to suck up to a constituency but discounting them the rationale is that they exist to deter. A hate object is more likely to suffer than a non-hate object, therefore stronger deterrence is required.

 

[LiveUninhibited]

MOTIVE and OUTCOME TO THE VICTIM should certainly play a role in how our laws work.

If I spray paint somebody's house with profanities I am guilty of vandalism.

If I spray paint GET OUT OF TOWN HONKEY on that same house, my motive and the effect that has on my VICTIM is significantly different.

There is a problem with that analogy. Spray painting on somebody's house is vandalism, but spray painting a threat is vandalism and intimidation. A better comparison would be, "Get out of town, asshole, or die" versus "Get out of town, beaner, or die." Both are vandalism and intimidation. Both are unacceptable. There is no need to make a distinction that one is based upon racism and the other is based upon personal dislike.

I think it right that our laws take such things as that into account.

You don't?

Um, why? Are we trying to say it's more acceptable to kill or harass somebody based upon a personal grudge than a ridiculous ideology? Are racist killers a higher risk to society than people who kill for personal reasons?

Yet that is EXACTLY what they are asked to do in many cases not involving hate crimes.

Run somebody over and see if MOTIVE doesn't get at least as much play as the event itself.

Explaining the motive is partly a form of circumstantial evidence used to fortify more solid pieces of evidence. A prosecutor wants to show both how and why somebody commited a crime, and they'd rather the reason not be random crime due to sheer insanity.

Motive relates to guilt in the sense it gives us a sense of mens rea. But mens rea means the person knowingly did an actus reus without just cause. Somebody disrespecting you or cheating on you does not give you the right to kill them, but if they lunge at you with a knife, then you do have the right to defend yourself. Mens rea is an all-or-nothing kind of thing. Mens rea - Wikipedia, the free encyclopedia

For murder, it's the difference between homicide and manslaughter. If you didn't intend to kill them, but you were acting irresponsibly (involuntary) or with some kind of malice (voluntary), it's manslaughter.

They exist to provide a greater deterrence, that's their only jurisprudential reason for existence at least. There are always going to be legislators who want to suck up to a constituency but discounting them the rationale is that they exist to deter. A hate object is more likely to suffer than a non-hate object, therefore stronger deterrence is required.

Deterrence theory huh? I wrote an essay on that a few years ago. I truncated it as it's somewhat long:

Undeterred

Amid acrimonious jeers the peasant is pushed and pulled to the wooden gallows. The creaky platform is a veritable stage where many villains have made their final curtain calls. A strained silence engulfs the crowd as the stoic executioner and priest play their parts with well-versed ease. Any last words? The rope chafes the peasant’s neck as he stutters a few inaudible phrases. Finally, conflagrations of cheers explode from all directions as the neck snaps and the body swings lifelessly. A rich or upstanding citizen during the 18th century would usually pay a fine or be deported to the colonies for most of England’s 200 capital offenses. Especially ill-bred or unpopular citizens accused of such crimes were often tortured till confession and hung.

Classical criminologists Bentham and Beccaria conceived an alternative to this capricious criminal justice system. Their influential, 18th century writings comprise the foundation upon which modern Deterrence Theory and Rational Choice Theory are built. Deterrence Theory states that a contemplated crime will not be acted upon if the threats of legal consequences outweigh the benefits of the crime. It is unnecessary to give too harsh of a sentence for a crime, but a light sentence will not deter future offending. Therefore, the punishment must fit its crime and it must be applied consistently (Akers and Sellers 2004). The eighth amendment of America’s Bill of Rights incorporated this theory into American law by prohibiting cruel and unusual punishment, and guaranteeing the right to a speedy trial. The influence of Deterrence Theory is rooted in American history and continues today. Thus, an understanding of Deterrence Theory is essential for deciphering American criminal justice.

There are two types of deterrence: general and specific. Specific deterrence refers to the likelihood that punished perpetrators will recidivate. General deterrence is the ripple effect that the punishment of perpetrators has on others in the population, causing them to fear state punishment by vicarious association (Akers and Sellers 2004). For example, if Aidan goes through a horrible legal ordeal because he was caught stealing a candy bar at 711, he may vow to never to steal a butterfinger again because of the risk of legal repercussions. This is specific deterrence. Then when Joe’s brothers or friends hear that Joe’s fine could buy hundreds of butterfingers, they may opt to just buy butterfingers rather than take the risk of a hefty fine. This is general deterrence.

According to Deterrence Theory, there are three variables that contribute to or discourage criminality: severity, certainty, and celerity of punishment (Akers and Sellers 2004). These are the tools with which legislators can tinker with levels of deterrence, and the avenues through which the theory can be empirically tested. It seems logical that the severity of the punishment for a crime would be linked to the fear of punishment. It is also clear that in order for deterrence to work, there must be some degree of perceived certainty attached to the prescribed consequences.

If the chance of getting caught while stealing a butterfinger seems to be less than 1%, then a 100 dollar infraction would not seem like such a big deal. Even for more serious crimes, the “tipping point” refers to the level of certainty of punishment required to deter criminality. Sociologists estimate that this tipping point is at around 1/3, i.e. a criminal must get caught and punished one third of the time in order to be deterred. Actual conviction rates fall far short of this (Akins 1/19/06). Yet there are also questions of whether criminals really think about the odds of getting caught, or if they have realistic notions of those odds. Not all criminals could pass Hedonistic Calculus 101 if it were a class, though it seems like it should be a prerequisite for a criminal lifestyle. With the existence of crimes like 2nd degree murder, in which forethought does not precede the crime, it is clear that some crimes are emotional in nature, beyond the reach of deterrence. Logical or not, Deterrence Theory must stand up to empirical evidence in order to be valid on any level.

Despite its long history, Deterrence Theory did not come under much scientific scrutiny until the 1960s. Early research focused on capital punishment and found that the death penalty had no deterrent effect (Akers and Sellers 2004). This undermined one of three central pillars of support for the death penalty, the other two of which are cost and retribution (Akins 1/26/06). Then, the uneven application of the death penalty to minorities led to a temporary abolishment of the death penalty in the 1972 Supreme Court case Furman v. Georgia. Concurring justices cited “cruel and unusual” punishment, an idea based upon the writings of Bentham and Beccaria.

More recent research suggests that in some circumstances, formal deterrence plays a role in crime prevention. Studies by Farrington et al. on crime and punishment trends in England and the U.S. suggest a weak correlation between the certainty of criminal sanctions and declining crime rates. They found an even weaker correlation between sentence severity and lower crime rates (Farrington et al. 1994; Langan and Farrington 1998). These studies reflect the general consensus on the issue. A study by Nagin and Pogarsky on DUI perceptions of college students found negative correlations between severity/certainty and offending, but additionally found no correlation at all between the likelihood of drunk driving and celerity of punishment (Nagin and Pogarsky 2001). It may seem that the issue can rest on the conclusion that for crimes with forethought, the certainty of legal punishment will have some deterrent effect, the severity of that punishment somewhat less, and celerity will be a non-factor. Unfortunately, it is not that simple.

Most research on general Deterrence Theory can be divided into two incomplete approaches. First, the macro-level approach utilizes official data to assess objective deterrence indicators versus crime rates. Second, the micro-level approach employs surveys to gather perceptual measures of deterrence and self-reported offending. Each methodology has benefits and drawbacks. Both approaches are problematic in that they make the bold assumption that objective and perceived deterrence coincide (Kleck et al. 2005). Without this link, macro and micro-level studies would be inapplicable to policy.
Contemporary research by Kleck and colleagues explored the gap between micro and macro-level research (Kleck et al. 2005). They studied five of the seven Uniform Crime Report index crimes (excluding rape and car theft) in fifty-four urban counties between 1988 and 1998 based upon consistency of crime definitions, availability of data and statistically significant felony rates. In order to evaluate objective deterrence, they combined UCR data on crime and arrests with Bureau of Justice Statistics' National Judicial Reporting Program data on convictions, sentences, and days between committing the crime and sentencing. So the UCR data encompassed objective certainty while NJRP data offered objective severity and celerity. Perceived deterrence was evaluated based upon 1998 phone interviews of 1500 randomly selected adult respondents in the same fifty-four counties. In order for Deterrence Theory to be valid, the perceptions of these respondents must at least correlate with reality.

Potential problems with the study include the lack of incarcerated respondents, who apparently had not been deterred. They also did not include the 20% of respondents who refused to take an uninformed guess at questions like average sentence lengths, which would dispose the results towards accuracy. Despite the fact that the methodology of the study could introduce bias towards a link between objective and perceived deterrence, none was found. There was no correlation between counties that were tougher on crime and responses estimating higher severity, certainty, or celerity. This study suggests that general deterrence is a rather insignificant factor in crime rates (Kleck et al. 2005).

What about specific deterrence? Clearly, if serial killers are put to death they will not offend again, but this could more accurately be considered the most certain form of incapacitation. Specific deterrence could be thought of as the lack of recidivism once an offender is released, while incapacitation occurs directly as a result of the time they are removed from the general public. Though recidivism is above fifty percent for many crimes (Akins 3/2/06), the specific deterrent effect may well be the factor that causes the certainty of punishment to be a noticeable aspect in crime reduction. In order to test this possibility, a study like Kleck et al. could be conducted that interviews current and past members of the incarcerated population and evaluates the jurisdictions of their crimes.

In the meantime, other social factors seem to be more important than formal sanctions in preventing crime. “Most people, most of the time and under most circumstances conform to the law because they adhere to the same moral values as those embodied by the law, not because they are worried about imprisonment” (Akers and Sellers 2004). The clear effect of informal sanctions such as social humiliation and the loss of social ties support the Control and Learning perspectives on criminal behavior and further weaken the use of harsher formal punishments. The challenge, then, would be to process criminals in a way that publicly humiliates them without violating their right to privacy or pushing them into a life of deviance.

In fact, punishment can backfire as it seeks to generate deterrence. Convicted felons become almost unemployable drains upon society. Serving time weakens their ties to conventional social attachments, strengthens their ties to deviant subcultures, and presents an opportunity to learn how to be a better criminal (Project for Ethical Government 1998). These factors, which span Learning, Labeling, and Control theories, may explain the lack of correlation between the severity of punishment and crime rates. Policymakers in America are either oblivious to this reality, or are determined to maintain a “get tough” image on crime for political gain. America, the land of the free, is also the country with the highest incarceration rate in the world. Of the nine million people incarcerated in the world, two million are American (Walmsley 2005). A significant proportion of inmates in American prisons committed non-violent offenses with no victim, especially drug crimes. In order to incapacitate the most serious of criminals who actually victimize others, it would be advisable to make victimless crimes such as drug possession and minor trafficking punishable by fines or other sanctions instead of prison time.

[...]

Yet most of the solution lies outside of the so-called long arm of the law. In a free society we demand privacy. We don’t really want an authority figure to monitor our every move and possession. So it is necessary to take personal responsibility to make oneself and ones’ possessions hard targets for victimization. Police, neighbors, guard dogs, product designers and public service announcements could all play a role in promoting this idea. It would be significantly easier to steal a car without car alarms or advanced locking mechanisms and it would be a lot easier to get away with robbing a convenience store without cameras, height indicators, or silent alarm buttons. More controversially, the principle of target hardening suggests that right-to-carry (handgun) laws would be helpful in preventing victimization. Since most people do not commit crimes and most criminals would rather not attack somebody who is armed, it seems reasonable that the government should actually encourage gun ownership by responsible citizens. This concept would be welcomed by some Americans, and strongly opposed by others who maintain that more guns mean more violence and danger to children in the home. Only empirical studies could establish whether such policies would be helpful or detrimental to safety.

Despite its empirical weaknesses, deterrence theory represented a huge leap forward over the barbaric and arbitrary criminal justice systems that it replaced. Challenges continue as sociologists scrutinize the status quo in an effort to improve the social quality of life for American citizens. While deterrence theory continues to play an integral role in American criminal justice, available data suggests that policymakers should shift their focus. In terms of deterrence itself, they need to stop emphasizing severity of punishment in favor of increasing certainty. They also need to institute better policies to incapacitate serious criminals, aid in the hardening of potential targets of victimization, and instigate a reasonable level of informal sanctions for criminal offenders. While some suggested changes might be politically infeasible, it is the duty of both policymakers and everyday citizens to do whatever they can to create a more just and safe social world for future generations.

If you don't feel like reading all of that the short version is that certainty of getting caught can be a significant factor in deterrence, while severity of punishment is not. A reasonable degree of severity should be imposed for reasons of justice, catharsis, and incapacitation, but it is not significant in causing further deterrence. Deterrence is also inapplicable to most non-economic crimes, and sufficient perceived certainty for deterrence is often not achieved. I have significant doubts that increasing the severity of punishment for so-called hate crimes helps with deterrence.

 

[Diuretic]

Deterrence theory huh? I wrote an essay on that a few years ago. I truncated it as it's somewhat long:

......


If you don't feel like reading all of that the short version is that certainty of getting caught can be a significant factor in deterrence, while severity of punishment is not. A reasonable degree of severity should be imposed for reasons of justice, catharsis, and incapacitation, but it is not significant in causing further deterrence. Deterrence is also inapplicable to most non-economic crimes, and sufficient perceived certainty for deterrence is often not achieved. I have significant doubts that increasing the severity of punishment for so-called hate crimes helps with deterrence.

I'd only observe that Beccaria and Bentham occupied different centuries and that while Beccaria, being a magistrate in Italy, was concerned with crime, his Dei delitti e delle pene is possibly the first criminological treatise, Bentham wasn't primarily interested in crime, he was a utilitarian philosopher. However you have referenced Bentham's idea of rationality and in particular his Hedonistic Calculus, I'd have to point out that Bentham, in devising it, didn't intend it to apply to crime, it just happened it fitted the idea. But Bentham relied on the notional "rational man" (sic) to devise the Principle and to apply it to would-be criminals. In the manner so favoured by the utilitarians of the time, Bentham liked to construct a theory which would enable him to pull the levers. Unfortunately we know now that humans are more complex than Bentham allowed. But that makes sense. I mean Wundt didn't start his work until well after Bentham's time (Wundt was born the month after Bentham died) so Bentham had no recourse to psychology, folks were still using philosophy to try and work out mental processes.

Anyway, you're right that certainty of detection and punishment (let's not forget that) is involved, indeed from memory that's part of the Hedonistic Calculus. Bentham, given he died in 1832, would have known that the policing of London and England was more than a bit patchy. Up until the formation of Peel's New Police in 1829 (which took a few years to become reasonably effective) there were parish constables and in London at leas the Bow Street Runners and Colquhoun's Thames Police. If you read the history of organised policing in London (and by extenstion, England) you'll see that the idea of a professional police force was strongly resisted by English politicians and the people generally. They were terrified of becoming like Napoleonic France. Two incidents allowed Sir Robert Peel, after years of trying, to get the Parliament to approve of his police - the Gordon Riots and the Wapping murders.

Bentham knew that no matter how harsh the penalty might be, the key was the probability of being caught. Prior to the New Police, even with the Runners, that probability was low, ergo the threat of punishment was not a major deterrent. Hence the application of the Hedonistic Calculus.

To hate crime legislation. The likelihood of being caught for a hate crime as opposed to a non-hate crime is probably about the same (unless the hate crime attracts extra police resources).

For the sake of the argument let's say there are two assaults in which the victim can identify the offender, assault A and assault B, then the chances of the offender being caught and convicted are the same. Let's say it's an 80% chance of being caught because apart from the classification of the crime all others things are equal. So, fear of apprehension is equal. The differential is zero. This assumes Bentham's rational man (an abstract notion if there ever was one).

Now let's say assault A was on a straight white male. And assault B was on a gay black male. (sorry to have to resort to ethnic and sexual inclination differences but they work because they're not subtle).

And now let's say that the perpetrators in both A and B forms of assault are homophobic white males who belong to a group that originally got together on Stormfront. Note - I'm exaggerating to make a point.

Which of the victims - the male in A or the male in B - is likely to be assaulted by these potential offenders?

I know it's abstract but that's the point. Hate crime laws are predicated on the basis that an identifiable group (and yes that could be heterosexual white males) is more likely to be victimised by potential offenders who have a greater predisposition to commit crimes against members of that identifiable group. Therefore there should be a greater deterrent in terms of sentence availability to the courts to discourage such crimes.

I know the objection on deterrence grounds, but it's not new, it goes back to the criticisms of Bentham's idea of the rational man. However allowing the courts a greater sentence option is, as you've pointed out, about more than just simple deterrence. It's also about societal condemnation. That carries a powerful message about a society's values and as such is a political as much as a jurisprudential reason for having hate crimes.

I suppose I just went for the short explanation in my post.

 

[LiveUninhibited]

I'd only observe that Beccaria and Bentham occupied different centuries and that while Beccaria, being a magistrate in Italy, was concerned with crime, his Dei delitti e delle pene is possibly the first criminological treatise, Bentham wasn't primarily interested in crime, he was a utilitarian philosopher. However you have referenced Bentham's idea of rationality and in particular his Hedonistic Calculus, I'd have to point out that Bentham, in devising it, didn't intend it to apply to crime, it just happened it fitted the idea. But Bentham relied on the notional "rational man" (sic) to devise the Principle and to apply it to would-be criminals. In the manner so favoured by the utilitarians of the time, Bentham liked to construct a theory which would enable him to pull the levers. Unfortunately we know now that humans are more complex than Bentham allowed. But that makes sense. I mean Wundt didn't start his work until well after Bentham's time (Wundt was born the month after Bentham died) so Bentham had no recourse to psychology, folks were still using philosophy to try and work out mental processes.

Indeed, humans are more complex than we can appreciate even now. And while I spoke of Bentham, my objections to the heavy reliance upon deterrence theory is not only philosophical. The purpose of using the longer quote was to at least show an example of how, quantitatively, increasing the severity of the punishment has questionable support.

Anyway, you're right that certainty of detection and punishment (let's not forget that) is involved, indeed from memory that's part of the Hedonistic Calculus. Bentham, given he died in 1832, would have known that the policing of London and England was more than a bit patchy. Up until the formation of Peel's New Police in 1829 (which took a few years to become reasonably effective) there were parish constables and in London at leas the Bow Street Runners and Colquhoun's Thames Police. If you read the history of organised policing in London (and by extenstion, England) you'll see that the idea of a professional police force was strongly resisted by English politicians and the people generally. They were terrified of becoming like Napoleonic France. Two incidents allowed Sir Robert Peel, after years of trying, to get the Parliament to approve of his police - the Gordon Riots and the Wapping murders.

I am not trying to say police are not necessary, but rather their primary purpose should not be seen as deterrance. Target hardening, including right-to-carry laws, are better for that. It is true that cops deter crime in their immediate area as the likelihood of getting caught is very high when you're next to a cop, but we don't have police everywhere nor would we want them to be. They should exist to incapacitate people who have demonstrated they are a danger to society.

Bentham knew that no matter how harsh the penalty might be, the key was the probability of being caught. Prior to the New Police, even with the Runners, that probability was low, ergo the threat of punishment was not a major deterrent. Hence the application of the Hedonistic Calculus.

Yes, but another point, which I am unsure if you saw, was that hedonistic calculus is not used for all crimes. My implication was that murder would not normally be included in hedonistic calculus, unless the motive was profit. If somebody is an insane racist, or catches their wife in bed with their brother, hedonistic calculus goes out the window, as does deterrence theory.

To hate crime legislation. The likelihood of being caught for a hate crime as opposed to a non-hate crime is probably about the same (unless the hate crime attracts extra police resources).

For the sake of the argument let's say there are two assaults in which the victim can identify the offender, assault A and assault B, then the chances of the offender being caught and convicted are the same. Let's say it's an 80% chance of being caught because apart from the classification of the crime all others things are equal. So, fear of apprehension is equal. The differential is zero. This assumes Bentham's rational man (an abstract notion if there ever was one).

Now let's say assault A was on a straight white male. And assault B was on a gay black male. (sorry to have to resort to ethnic and sexual inclination differences but they work because they're not subtle).

And now let's say that the perpetrators in both A and B forms of assault are homophobic white males who belong to a group that originally got together on Stormfront. Note - I'm exaggerating to make a point.

Which of the victims - the male in A or the male in B - is likely to be assaulted by these potential offenders?

I know it's abstract but that's the point. Hate crime laws are predicated on the basis that an identifiable group (and yes that could be heterosexual white males) is more likely to be victimised by potential offenders who have a greater predisposition to commit crimes against members of that identifiable group. Therefore there should be a greater deterrent in terms of sentence availability to the courts to discourage such crimes.

I know the objection on deterrence grounds, but it's not new, it goes back to the criticisms of Bentham's idea of the rational man. However allowing the courts a greater sentence option is, as you've pointed out, about more than just simple deterrence. It's also about societal condemnation. That carries a powerful message about a society's values and as such is a political as much as a jurisprudential reason for having hate crimes.

I suppose I just went for the short explanation in my post.

Quantitative studies, including but not limited to the ones alluded to when I quoted my essay, would suggest that severity of punishment is not nearly as significant for deterrence as certainty. Celerity was formerly thought to be necessary, but quantitatively it is now a non-factor. Of course I should emphasize the point that deterrence probably does not apply to hate crimes, because it is not a crime based upon gain.

 

[Diuretic]

Yes.

The point about "hate crimes" is that like anything that's criminalised, it has a political aspect to it. Because of the comments about hate crimes which come up anytime the topic is mentioned I had to resort to the obvious justification. That's what I do, almost reflexively, when I see the screams about white males/straight males/Dittoheads not being "protected" from such crimes which is then usually followed by a swift descent into the intellectual gutter.

Not you, LU, but if anyone thinks that cirme hasn't got a political aspect to it then I'd invite them to read the Carrier's Case and also have a glance at Durkheim.

For the objectors -

Sometimes it just comes down to this:

Minorities are easily identifiable in society
Members of minority groups are more likely to be victimised by members of the majority group
Therefore minorities need to be protected from victimisation by members of the majority group

Now, if, like me, you're a member of a majority don't piss and moan, you're well protected by the general criminal law, just be thankful you don't look different from the majority and stop whining about not being protected, it makes you all look like sooks

 

[editec]

Live Uninhibited asks why so called hate crimes motivated by race are different than crimes merely motivated by hate of one individual to another?

Um, why? Are we trying to say it's more acceptable to kill or harass somebody based upon a personal grudge than a ridiculous ideology? Are racist killers a higher risk to society than people who kill for personal reasons?

I'll tell you why...because a race hate crime is one that threatens not only its specific target, but the race of that victim, too.

And since the purpose of law is to maintain a functional civil society, the crime against order of a hte crime is more threatening to that society than a crime of hate directed at only one person.

It's sort of the difference between a crime motivated by mere greed, versus a crime with the purpose of creating terror.

Now I totally understand why some of us (myself included) are fearful of hate crime legislation.

It gives our government additional power to decide how people must think, as it punishes people, not only for what they actually do, but WHY they do it, too.

And the potential for a government to ABUSE that authority is pretty obvious.

But the nature AND MOTIVE of a racist hate crime V a mere crime of hatred should be fairly obvious, even if you totally disagree with the hate crime legislation.