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 migth 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.
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–intentionall–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 proportionatly in punishment, see my article Punishment and Proportionatly.