* Crimes of prejudice are not ordinary assaults
Topics: Civil Liberties
23 Jun 2005
From: Ervan Darnell
[ This is another piece for the local LP newsletter. Keith Lyon and I changed format a bit this month. Instead of doing point counter-pointer each month, we are doing point one month and counter-point the next. Thus, this is a bit longer than the previous pieces and Keith's reply will come later. We chose this topic just to have something to disagree about, so this represents a somewhat nonrepresentative slice of my opinions. ---Ervan ]
Libertarianism is a theory about freely consenting adults. Many laws could be so remodeled. But, those that cannot are problematic for libertarianism. The severity of criminal punishment is one such example.
The common libertarian answer of make restitution (i.e. "perp pays") is too simplistic for several reasons. It fails to establish the level of punitive damages, it fails to handle the case where the perpetrator has nothing but his freedom left to surrender, it fails to account for the differing efficacy of deterrence, it fails to account for the degree of culpability, and it fails to account for the broader implications of the crime.
We regard insanity as a limited defense because failing to punish the insane does not much encourage crime, whereas failing to punish the culpable surely would. We recognize distinctions between manslaughter and murder, even though the victim is dead in both cases. Intent matters as well. We treat shooting and missing with the intent to kill more seriously than shooting in the air for no reason. We punish rape more severely than battery, even though it might not involve any battery. The harm extends beyond the bruises, both emotionally to the victim and to hidden societal costs of more defensive behavior. In all of these cases, the immediate harm of a crime is not to be taken as its ultimate consequence. The degree of punishment should recognize this.
Consider racially-biased lynchings in this light. A lynching was not merely an assault upon one person. It was part of a larger message that African-Americans should not expect to be treated like equal citizens, or able to exercise their guaranteed rights. Indeed, it is like imprisonment for real crimes: a mechanism of deterrence, not merely individual assault. To say that a lynching is just a murder is to be blind to how it was used as a tool of oppression with broader consequences. In this case, the penalty for murder was indirectly increased by raising the probability of being caught (via federal investigations). That intervention was justified even though it meant applying more investigative resources to one kind of murder than another. In contrast, "perp pays" has the wrong effect. If lynchings were to become more effective at oppression, they could become less common, and therefore less punished under "perp pays".
The modern version of this is "hate crimes". While many are ham-handed efforts at political correctness, they should not all be instantly rejected. First, as just argued, they are an indirect way of punishing total harm rather than just immediate harm. Second, juries are charged with determining the state of mind of the accused. Was it premeditated or heat-of-the-moment? Was it truly a rape or did she consent? Did he intend to shoot someone or not? The motivation of the culprit is an essential part of proper punishment. Asking if someone intended broad oppression or personal assault is not creating "thought crimes." It is asking juries to make decisions about motive that they inevitably must in many trials.
Rather than instantly reject "hate crime" laws, I think there are three questions that need to be answered before we know if crimes of prejudice deserve more severe punishment:
1) Is the intended harm or reasonably foreseeable consequence greater than the harm to the immediate victim (and the usual collateral damage)? That is, even if an individual assault is animated by prejudice, that does not necessarily have broader implications.
2) Does a separate penalty actually have an enhanced deterrent effect on hate crimes or is it an empty political gesture?
3) What is the hidden cost of having them? Will prosecutors misapply them for unfair leverage or unjustly frame such charges on defendants?
These are empirical questions, which cannot be answered a priori from libertarian philosophy. They deserve answers and a sensible trade-off for deciding policy.
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Ervan Darnell
ervan@kelvinist.com http://www.kelvinist.com
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