From the Mises blog. Archived comments below.
On an email discussion list, some of us libertarians were talking about a recent incident in Ohio where a large group of black teens attacked a white family on the 4th, for apparently racially-motivated reasons. The question arose as to whether this is a “hate crime.” My response was:
The thing is there is a difference between the intentionality of an action or crime, and its motivations. The race-crimers conflate these. It is rational to classify a crime or tort by its intentionality: thus if it’s accidental, it’s mere negligence; if it’s fully intentional (you intended to murder the guy) then it IS murder. It does not matter WHY the criminal killed you for purposes of classifying what the action IS: he might have murdered you b/c he is racist, b/c he is a sadist, b/c he’s a socialist, or b/c he’s taking orders from General Washington.
That said, an understanding of the motivation of a given crime can be helpful in understanding, tracking, combatting it; and it might even factor in to the punishment phase. So if you steal b/c you are just a professional thief, or you steal a loaf of bread out of desperation to feed your children, then both are intentional crimes, both are theft. But maybe you have mercy on the latter guy and don’t punish him as much. Etc.
The problem as I see it is that a racist motivation to assault someone is not really any worse for the victim than other (evil) motivations for assault. If I assault you b/c I hate your skin color and am a racist, why is that worse for the victim than if I assault you b/c I want to make my bones or whatever? In the case of the starving bread thief vs. bank robber, the former is more pitiable and has more of an excuse. In the case of a racially-motivated crime such as murder, rape, assault, it’s not really any worse than a non-racially-motivated act of murder, rape, etc. It’s different in that the motivation is different, but I dont see that it’s worse (or better) as a crime.
And here is an older Mises.org post of mine on this issue:
Hate Crime–Intentional Action and Motivations
July 25, 2005 10:18 AM by Stephan Kinsella | Other posts by Stephan Kinsella | Comments (5)
On a private list I posted the following:
I’m looking for a couple of good libertarian articles that oppose hate-crime legislation on grounds that the motive behind a particular intentional crime do not make the particular act of crime better or worse from the victim’s point of view, or similar criticism.
I received a few private replies to my post. Let me clarify and answer them generally here.
First, my post was not an attempt to argue any point; I was just asking for an article that makes this argument, so I can use it in a footnote.
But let me mention my views briefly here on this. I am not implying that intention does not matter when assessing criminal action. Far from it. However, I do distinguish between the intentionality of the crime, and its motivation or purpose. A human action (such as a crime) is necessarily intentional, or purposeful. But it is intentional regardless of what the specific purpose is. I would view a racist attack on someone as an intentional act, with a racist purpose. A non-racist attack on someone is still intentional, and thus still a crime; it still has a purpose, but the purpose is something other than a racist one, e.g. it might be to further a robbery or sheer sadism. (For further discussion of these issues, see my article Causation and Aggression, distinguishing between mere behavior, and action, which is intentional, for purposes of identifying criminal human action; and Causation and Aggression, concerning the relevance of the intentional nature of action, and its purposes, including criminal action.)
For example, if I am playing basketball with you and my fist accidentally hits you in the face, as we are jostling; or if I have an epileptic fit and my arm strikes you; or if I am joking with you, trying to tease you, and swing at you, intending to miss, but you move unpredictably and I strike you–all these are cases of a non-intentional, at worst negligent, action. I believe mens rea, or intent, is indeed an important element of a crime. The crime has to be intentional.
To me, the motive is the reason why you (do intentionally) commit a crime. If I intend to univitedly punch you in the face, this is a crime–battery. I might intend to do so because I want to frighten you; or I get a weird pleasure out of it; or I can’t control my temper; or as part of a robbery; or because you are gay or black, say.
A rape of a woman is an intentional crime. The motive may be to punish her (say, she broke up with you) or her husband; to have sex; to commit violence; or because she is the wrong race.
I can see motive being taken into account when determining punishment, once it is established that it is an intentional crime and thus that some punishment or response is justified. For example, if I break into your house (intentional–crime) for the purpose if robbing you (motive), that might receive a harsher punishment than if I break into your house (intentional–crime) for the purpose of surviving from a freak blizzard (motive). Likewise, if I steal a loaf of bread b/c I am desperate and need to save my baby who is starving, it is still an intentional crime but the purpose or motive is to save my baby’s life. If I steal your money to buy drugs or buy a Gamestation, the motive is different.
In my view, an out and out intentional criminal act, such as battery, rape, or murder, is not made worse if it is done for racist motivations than some other vile motivations. The more PC jurors might feel otherwise, I realize.
One of my correspondents replied,
agreeing that the motive may be relevant, the issue is just whether this motive is worse than others. I think we’re on the same page here. One difference is that many motives you’ve mentioned (e.g., robbery) are for the gain of the criminal, whereas this motive is solely to harm the victim. I’m not sure that warrants a harsher sentence (but I’m also not sure it doesn’t).
I would say that in the examples I would use to warrant harsher punishment, it is because the motive or goal is to harm the victim. In other cases, the harm to the victim is more like collateral damage. But in MY view, a guy who rapes a woman because he wants to get laid; and the guy who rapes a woman because he dislikes her race, are equally bad. They are both commiting intentional crime; and both are intending to harm the victim. I do not see that the race-motived rape is any worse in any way than the non-race motivated one.
My point is you have to not only show that the motives are different, but that they are relevantly different. Stealing money to keep from starving seems more innocuous than stealing money to guy a gun to rob a bank. But murdering someone intentionally, because they are in the way of a crime; or because they are black; do not seem morally distinguishable to me. I would execute either one.
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Side-point: this is one reason, in my view, outright intentional crimes ought to be punished more severely than “negligent” acts. I think of it this way. Libertarianism has a certain symmetry about it; we believe that punishment or responsive force may only be used in response to initiated force. So it is force, versus force. But we also believe in proportionality in response. A disproportionate response that “overpunishes” is itself, to an extent, aggressive. Now an intentional crime, such as murder (e.g., first-degree murder) is punished by, say, capital punishment. This is just because the punishment is an intentional administration of the penalty of death; this corresponds to “what the aggressor did,” namely he also intentionally caused someone’s death.
Now in the case of negligent causing of death, i.e. manslaughter, where you accidentally kill someone, the reason that this is not punishable by death is that the this would be disproportionate. Punishment is always fully (100%) intentional. Yet the action being punished may be thought of as only partially intentional–say, 5% instead of 100% (that is why it is manslaughter–negligence–instead of first-degree–intentionally–murder). Since the punishment must be fully intentional, the punishment given must be reduced to balance it out. Instead of executing the tortfeasor, you give him, say, 5% of capital punishment–maybe 5 years in jail, say, or a corresponding obligation to pay damages. For more on proportionality in punishment, see my article Punishment and Proportionality.
July 25, 2005 at 11:21 am
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Punishing a criminal has nothing to do with compensating the victim. In case of a murder the victim is already dead and no amount of punishment meted out to the murderer will give any benefit to the victim.
What the rest of the society is interested in is to avoid further occurences of such cases. It is only for this reason that we use criminal prosecution.
Therefore, it makes sense to punish criminals based not only on their intentions but also on their purposes!
July 25, 2005 at 2:54 pm
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I accept that punishment deters some crime, but it tends to be of limited effect. Even with the ultrabureaucratic and tyrannical state (or sometimes because of it) there are a lot of things which are not “crimes”, but do involve force or fraud.
(I will restate this below, but if by “hate crime”, you mean any crime whose victim is on a list of “politically correct” groups (women are not a minority), it is corruption or nonsense so doesn’t merit discussion)
And many crimes are committed without thought of punishment. If one lacks the virtue of prudence to not commit a crime on principle, one usually doesn’t have a few dregs of it left to prevent committing crime because of the practical problem – you might get caught, tried, convicted, and punished.
In the case of negligence – what about someone who acts carefully or negligently based on the race of the person who may get hurt or one of the other bases whereby things become hate crimes?
There is also a proper function of quarantine. If someone hears voices (without headphones, sort of an iPod-person) and ends up doing well intended harm, we normally want to prevent his action. If someone does harm out of hate (which may be no more willed than the person with the audio hallucinations), ought they not be isolated too?
In this case the reason for the incarceration is not punishment but quarantine. The person is a threat (as opposed to willing threats). Something is broken, and until it is fixed there is a reasonable expectation of harm.
The usual problem with “hate crime” legislation is that it doesn’t try to identify hate, but tends toward saying a crime against a PC class is by definition a “hate crime” even without any evidence. Periodically, someone brings up a gang of minority members who go to attack a member of a majority specifically because they are a member of a majority – yet that is not called a “hate crime” though the motivation is specifically hatred.
Such PC laws are nonsense, but it is hard to talk about the subject as if the laws were really to be used against people who acted irrationally on hatred.
Then there’s people who have been wronged – someone’s relative is killed, and they seek revenge, which is a form of hate. If they act, is that a “hate crime”?
July 25, 2005 at 4:05 pm
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Let us not forget that from a libertarian point of view, a legal system exists to impart retribution to the afflicted and not to benefit some third party (“society”). Therefore, it doesn’t matter to me if someone steals my car because that person is greedy, needy, depressed, hated my Latino mustache, or wanted to rub his cheeks against my cheap car seat fabric. The retribution should be aimed at trying to return me to my prior condition. And beyond this, the punishment should also go according to the actual crime done, not the causes (for example, Rothbard/Block would argue for two teeth for a tooth).
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“Then there’s people who have been wronged – someone’s relative is killed, and they seek revenge, which is a form of hate. If they act, is that a “hate crime”?”
I don’t think that would be a hate crime at all. Revenge is totally justified as part of punishment. If I am killed, my estate (brother, for example, or son) would be entitled to at the very least kill my killer, and even demand extra compensation, perhaps determined on a case-by-case basis or via pre-determined insurance company policies, for the legal fees and other costs.
July 26, 2005 at 4:28 pm
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I suppose one could argue that enforcing a stiffer sentence for crimes that are committed with racist motivations would marginally decrease the incidence of such crimes, thus hate-crime laws would be justified for that reason. Of course, one could then argue that if stiffer sentences really did reduce crimes committed with racist motivations, then why not simply increase the sentences for all crimes with similar outcomes (murder and assault, for example), in which case there would now be no differences in the severity of the punishments. So I think I would have to come down on the side of those that think there should be no difference in the punishments for crime based on whether the crime was committed with racist motivations or simply evil intent.
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