Hate crimes?

Discussion at Agoraphilia.

Quoting from the Chicago Tribune:

The simplest answer to this is that when hatred for a particular group or class or race is the obvious motive for an attack, that attack becomes, in effect, two crimes. The first is the offense itself. The second is the implicit threat that offense makes to other members of that group, class or race.

Intimidation is already a crime, with or without hate crime law. Threatening someone is already an offense. So if hate crime law represents an improvement, it must be because it addresses a form of intimidation that is otherwise ignored in law. Presumably that is intimidation of a "group, class, or race". That is, it is diffuse intimidation directed against a group of people rather than a single person, against which there is presumably no law prior to hate crime law.

This makes hate crime law look like an attempt to address a public goods problem.

However, hate crimes are not in any way unique here. A criminal is a menace not only to his immediate victim but to everyone in the neighborhood, and when he is caught everyone breathes a sigh of relief. A mugger not only harms his immediate victim, but harms everyone else by making them afraid to go out at night.

It is nevertheless usually deemed "enough" to nab the criminal for the particular crime. The mugger, once caught, is tried for a particular crime, and then, if he is convicted, he is put away, making the whole neighborhood that much safer for everyone. There's a positive externality in defending yourself against a criminal, which might lead to an undersupply of defense against criminals.

In any case the public goods problem of defending against crime seems to be a general problem with crime and not a problem specific to hate crime.

Hate crimes, it is worth remembering, are first of all crimes, even if we ignore the element of hate. So there is already some defense against hate crimes: they can be prosecuted as regular crimes. If there is a problem, it is not that there is no defense against hate crimes, but only that there is an undersupply of defense against hate crimes. But as I mentioned before, much the same thing could be said of ordinary crime, because ordinary crime victimizes - via a diffuse intimidation - a lot more people than just the immediate victim.

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More deterrence for more harm?

You make a good point that criminal law is already generally about deterrence and the implicit public good (rather than say retribution or rehabilitation). And, I'm not a fan of "hate crime" laws because of their other problems. But I think the Tribune article makes a theoretical point you are glossing over too quickly: the amount of deterrence could track the amount of harm.

For example, if an arsonist targets businesses who fail to pay protection money to the local mob, we would see that as two crimes, arson and extortion. The impact of the extortion, depending on how many businesses capitulate, could be far greater than that of the arson. Indeed, were the mob extremely credible in their threats, they would never need to actually burn a business to extort the whole of them. The law already sees these as two crimes and that's a rough approximation to the idea that not all arsons have the same amount of harm (some just cost a building, and some cost a building plus threaten a large group of people).

"Hate crimes" are a weak analogy to this. The instrument of the crime (e.g. a baseball bat to a leg) is not proportional to the net harm of the crime. For a simple assault, this is a broken leg + making people generally more afraid. For a hate crime, this is a broken leg + making people generally more afraid + deterring a class of people from visting certain parts of the city (or country), being seen together as a couple and the possibly substantial nuisance cost of perpetual self censorship, etc. More punishment for more harm may be appropriate.

So, I disagree with your claim that intimidation is already a crime in this sense. Against one individual, "yes", against a group "no". If the punishment is adjusted only for the harm done against one person, it's too little. What law to pass, if any, is difficult to say, but that shouldn't prevent us from recognizing a distinction.

Not my claim

No, that wasn't my argument. I actually am arguing based on the assumption that the criminal law is not (as it is actually structured) about the public good except incidentally, and in fact under-supplies deterrence against harms (like racial intimidation) that have dispersed victims. Thus the whole point of my article is to acknowledge and discuss the point you raise, that the amount of deterrence could [and does not currently] track the amount of harm. That is exactly what I am addressing. The amount of deterrence to prevent that harm is currently under-supplied.

My point is that this problem of under-supply is a general phenomenon and is not specific to hate crime in the absence of hate crime law. (I write: In any case the public goods problem of defending against crime seems to be a general problem with crime and not a problem specific to hate crime.) My further point is that despite deterrence being under-supplied, nevertheless it is not entirely un-supplied, because hate crimes are still deterred as ordinary crimes. (I write: Hate crimes, it is worth remembering, are first of all crimes, even if we ignore the element of hate. So there is already some defense against hate crimes: they can be prosecuted as regular crimes.)

You write: So, I disagree with your claim that intimidation is already a crime in this sense. Against one individual, "yes", against a group "no".

But that is my very topic. I write: Intimidation is already a crime, with or without hate crime law. Threatening someone is already an offense. So if hate crime law represents an improvement, it must be because it addresses a form of intimidation that is otherwise ignored in law.Presumably that is intimidation of a "group, class, or race". I nowhere deny that claim. Rather, I only place it within context.

There was one critical point however that I failed to address, which is the distinction between the unintended harm of the mugger and the intentional harm of the racial intimidator. The mugger deters people from venturing outside, but that is not his purpose. He would actually prefer it if they ventured outside, so he could mug them. In contrast, the purpose of the racial intimidator is to bring about the intimidation that he in fact brings about.

So there is that important dis-analogy between mugging (my example) and hate crime. I acknowledge that point. However, I think it is in part a product of the example I chose. A criminal may intend to intimidate a whole population to avoid doing some particular thing - for example, he may be a mobster who is trying to establish some monopoly or other. His immediate victim is whichever particular would-be competitor he commits violence against. But he also victimizes all other potential competitors who learn about and are deterred by this particular act.

The Mugging Disanalogy

"The mugger deters people from venturing outside, but that is not his purpose. He would actually prefer it if they ventured outside, so he could mug them. In contrast, the purpose of the racial intimidator is to bring about the intimidation that he in fact brings about."

Glad you recognized this point, because it seems crucial to the argument for hate crime laws. Not only does the mugger not intend to deter people from venturing out, but that effect is actually counter to his purpose. He can only get the benefit of mugging if there are people there to be mugged, so his mugging actually reduces his future mugging opportunities. The racial intimidator, on the other hand, benefits from intimidating members of certain groups into staying home. He thus gets continuing benefits from his initial act of intimidation.

"However, I think it is in part a product of the example I chose. A criminal may intend to intimidate a whole population to avoid doing some particular thing - for example, he may be a mobster who is trying to establish some monopoly or other. His immediate victim is whichever particular would-be competitor he commits violence against. But he also victimizes all other potential competitors who learn about and are deterred by this particular act."

Agreed, but this is a much narrower analogy. Initially, you seemed to be saying the intimidation effect is there for pretty much all crimes. Now, however, we see that the relevant form of intimidation -- the kind that is the purpose of the initial crime rather than its unintended and possibly undesirable (to the criminal) side effect -- is only present in a relatively narrow set of cases. So maybe we need racketeering laws to deal with the mobsters, and hate crime laws to deal with the bigots.

Yes and no

I have acknowledged an even closer analogy, where the shared element is intentional intimidation, but that does not negate the relevance to my points of the looser analogy, where the shared element is intimidation whether intentional or not. Hate crimes share more features with racketeering than with crimes in general, but they still share certain key features with crimes in general.

In particular, my two points stand even in the larger context. Under-supply really is a widely shared phenomenon, and is not specific to hate crime, nor to hate-crime-and-racketeering, but to a large range of crimes. And, undersupply is not non-supply. This point also is unaffected. So both the narrower and the wider form of intimidation are relevant to the points I was making.

I did not address every aspect of your point. Your point hinges on the intentionality of the intimidation, because this increases the criminal's motivation, which suggests that an increased punishment may be advisable to compensate for the increased motivation. However, I do not believe that the article you were quoting was making that point that you were making. Its argument was different from and weaker than yours. My argument really does address his argument "face to face", so to speak. He did not make the point about the added incentive to the criminal. The only point he made was about the fact that more people are victimized than the immediate victim. I acknowledged that point but I pointed out that this phenomenon is widespread.

However I think that your point only increases the degree to which the deterrence is under-supplied. It is not the first appearance of under-supply, but rather an exacerbation of the general under-supply. That a crime has third party victims does not increase the rate of crime but does increase the harm of crime; that the criminal benefits by having third party victims increases the rate of crime, but we care about this ultimately only because it further increases the total harm done.

So the problem of under-supply of deterrence already exists and already is general, and we are already failing to address it. So the two key questions already exist even before hate crimes are brought in: These questions are:

Why is deterrence under-supplied? And should this be corrected?

I would answer that the under-supply of deterrence is a public goods problem. Public goods get under-supplied. Suppose every member of an intimidated race were joined into a single entity. Then the target of the intimidation would be a single person, and there would be no free riders if that individual defended himself - at least as far as intimidation went. And to the second question I would answer that I favor a non-compulsory approach to addressing public goods problems. In particular, if a race - or many members of a race - joined together into an organization, then that organization could defend its members against intimidation the old fashioned way. If someone wrote graffiti on a redhead-owned wall that said, "redheads not welcome - it's already lunchtime and I haven't cream-pied my first reddie today" (with redheads a frequently intimidated minority), then the redheads could get him for the graffiti and also for the implied threat.

The only problem with someone who intimidates a whole race is that each individual member of the race is insufficiently intimidated to bother to bring legal action against him. Any member of the intimidated community could sue for some slight damages, surely, since the harm is real. And an organization of them could sue collectively for sizable damages. All without hate crime law. No?

Under-supply and Optimal Allocation

I'm not sure I agree that all deterrence is under-supplied, because there are powerful interest groups -- most notably cops, prosecutors, and prison guards -- who regularly lobby for greater expenditure on criminal justice. In addition, fighting crime is one of the few things that voters will actually say they're willing to pay higher taxes for.

But supposing the problem of under-supply is real, that means we (unfortunately) have especially scarce crime-fighting resources. And in that case, we want to spend them where they have the highest return. If hate crime laws direct our resources to where the under-supply is greatest, then that would seem to be an improvement.

"In particular, if a race - or many members of a race - joined together into an organization, then that organization could defend its members against intimidation the old fashioned way."

I'm not sure I know what you mean by the old-fashioned way. Do you mean extracting some street justice? Or do you mean going to court? If you mean going to court, well, the hate crime laws allow them to be able to punish the criminal more effectively in court with a lower expenditure of resources.

"Any member of the intimidated community could sue for some slight damages, surely, since the harm is real. And an organization of them could sue collectively for sizable damages. All without hate crime law. No?"

Ideally, perhaps, but collective action problems are quite real. And our main device in civil law for dealing with this problem is the class action lawsuit -- hardly an exemplar of efficient law. Hate crime laws allow us to attach greater punishment to crimes that we would be prosecuting anyway, thereby minimizing the collective action problems and additional resource expenditures.

Also, while the harm is "real," it's the kind of harm that's easy to show in civil court. It's not the kind of harm you can show with medical bills, because the harm is really that of (say) living somewhere less desirable.

These are valid points but not enough IMO

I'm not sure I agree that all deterrence is under-supplied, because there are powerful interest groups -- most notably cops, prosecutors, and prison guards -- who regularly lobby for greater expenditure on criminal justice.

Then by the same token you ought to be not sure you agree that criminal justice in the case of hate crime is under-supplied. In light of the consideration you raise here, then for all either of us know, government might already over-prosecute and over-punish crimes that involve group intimidation.

If hate crime laws direct our resources to where the under-supply is greatest, then that would seem to be an improvement.

That's if. Hate crime laws are suspect because their purported victims are dispersed. Who is doing the actual cost-benefit calculation? If I buy toothpaste for myself, I am weighing the cost to me against the benefit to me, but if government buys toothpaste for me with tax money, then some bureaucrat or worse, some politician, is trying to weigh, on my behalf, the costs and benefits of various options. That'll work about as well as North Korea works.

Hate crime laws are the sort of law that we should automatically be distrustful of. They are close kin to victimless crime laws, because while their victims (entire communities - recall that we're treating hate crimes as crimes against entire communities, not merely against individuals) technically exist, they don't actually take part in the case any more than happens for victimless crimes. This kind of law exists because someone somewhere has convinced themselves that the total benefit to society outweighs the total cost. Drug laws, gun laws, immigration laws. I have a deep distrust of the kind of law is on the books because a politician or bureaucrat or the voting public believes it will on the whole make society better off, and much less distrust of the kind of law that a judge is able to reasonably explain and defend when convincing the winner, the loser, and the onlookers that his decision was not horribly unfair.

the hate crime laws allow them to be able to punish the criminal more effectively in court with a lower expenditure of resources.

And if we reduced the victim's burden of proof then it would be even less expensive to punish criminals effectively. Too many bad things could be defended on the grounds of reducing cost of prosecution. Seems to me a very weak reason in favor.

It's not the kind of harm you can show with medical bills

If it's not the kind of harm that can easily be shown, then greasing the wheels for it not only despite this, but because of it, is a bit like reversing the victim's burden of proof: if the victim can't prove harm, then let's double the sentence!

Yes and No redux

This is a good discussion with both sides making valid points. I think this argument in favor of hate crime legislation has some meat to it, and it is not simply akin to victimless crimes like drug laws. Smoking a joint is truly victimless, but making a threat, even a dispersed threat, is not.

The main problem with the argument is that it makes "hate crime" a complete misnomer, because what makes it a so-called hate crime is not the hate, but the threat/intimidation aspect of it. In other words, it is really a form of terrorism in attacking one member of a group as way of influencing or intimidating the group as a whole. The legal basis for additional punishment (over and above the original crime) should, thus, arise from considering whether there was such a terroristic threat involved. If there wasn't, then the standard criticism of hate crime laws -- that the government is punishing thought -- applies.

We can consider, for example, an argument in a bar that gets out of control, racial epithets fly about, and a black person gets beat up. This might now be considered a hate crime, but under our new reasoning for hate crimes, it no longer is. It is really just simple assault and battery, hateful motivations notwithstanding. By contrast, burning crosses on a black family's lawn conveys a terroristic threat, and could be considered a hate crime.

But we should do away with the hate crime terminology altogether, since it places focus in the wrong place. If people focus on the hate aspect, and not on any actual threats, it becomes more acceptable for government to legislate thought and undermine equality before the law, giving some people more legal protection than others based on the hazy perception of the victim is part of a hated group.

I'm convinced

Hate crime is terrorism, but "hate crimes" which are not terrorism should be dropped from the definition. We should in fact drop the concept of "hate crime" entirely and replace it with the concept of terrorism. Did I misunderstand? Can someone convince me otherwise?

Meanwhile, doubts about hate crime law should translate into doubts about laws that specifically target terrorism (as opposed to mere mass murder). And vice versa.

This sheds some new light onto the trouble I've had envisioning a truly libertarian response to terrorism. Small wonder so many libertarians have been hard at work trying to minimize the threat of terrorism. A mere body count is not enough to really measure the harm done by terrorism. Now I see that I've been inconsistent. I believe that this was my comment. I will quote (hopefully) myself:

Since terrorist murders are coercive, there is more going on than just murder. Suppose that terrorists convincingly vow to murder everyone who draws a picture of Mohamed. The result may be no murders at all, and everyone intimidated into not drawing pictures of Mohamed. The intimidation of an entire nation and their submission to the demands of the terrorists does not get counted in a mere body-count comparison. In contrast to terrorists who target their victims, avalanches do not target their victims and so do not result in the intimidation of an entire nation.