Violent crimes and racist incidents against Asian Americans have become much more prevalent in the last year, which some have attributed to racist public rhetoric about the COVID-19 pandemic. Many activists feel that more of these incidents should be charged as hate crimes, which would invoke laws that make penalties more severe when a criminal is motivated by hatred of a person’s identity. These laws have long been in effect in America for several reasons.

One factor used to justify stiffer penalties for crimes motivated by hate is that these crimes often impact not only the victim, but also local and national communities. When a criminal targets people of certain identities, those who share those identities often experience heightened fear and distress. Jane Coaston, who hosts the podcast The Argument at the New York Times, discussed this issue in a recent episode of the show. She recalled the murder of Matthew Shepard, a gay college student at the University of Wyoming; there was evidence that the killers were motivated by homophobia, and a national hate crime law was named for Shepard. Coaston, who identifies as queer, recalled that the crime had a deep effect on her when she was in school, even though she lived in Ohio. “I remember feeling that as an incident aimed at me,” Coaston said. “It wasn’t aimed at me. It was aimed at a very specific person in Laramie, Wyoming. But I felt the impact of that hate.” Thus, hate crimes often do more harm than other crimes, warranting a harsher punishment. 

Another well-known justification for hate crime laws is that they embody a society’s values and send the message that hate is unacceptable. As a guest on The Argument, Steve Freeman, vice president of civil rights and director of legal affairs for the Anti-Defamation League , emphasized that this message is meaningful. He acknowledged that the justice system is not perfect and will not charge every hate-motivated crime as such, but he compared hate crime laws to anti-discrimination regulations. They are valuable because they express important American values. “To the extent that hate crimes are a criminal analog to discrimination laws, the fact that they exist and the fact that people are tuned into them and aware of them is a positive step,” Freeman said.

The laws are valuable because they align a crime’s punishment more closely with the harm done, as well as sending a message to society, but some critics argue that they overstep the boundaries the government should adhere to in criminal law. In a 2001 article for Law and Philosophy, Heidi M. Hurd contends that bias, prejudice, and hatred are part of a person’s character, and that character is distinct from “occurrent mental states (such as intentions, purposes, choices, etc.)” because it is not always under a person’s control. She says that hate crime laws hold people accountable for a mental state that they may not be capable of intentionally changing at the moment of the crime, even if it is possible to indirectly improve one’s own character by seeking experiences that challenge biases. Hurd writes that “to criminalize hatred and bias is to move from an act-centered theory of criminal punishment to a character-centered theory” (216). 

However, in a 2006 article for the Nebraska Law Review, Janine Young Kim responds to Hurd by arguing that hate crime laws are actually similar to other aspects of criminal law. Kim writes that criminals are often found guilty for crimes involving knowledge or beliefs that they could not have consciously changed at the moment of a crime. She points out that a person can be prosecuted for accepting property they knew was stolen, even though they could not have forgotten what they knew about the property, and people can also be punished for speeding, even if they cannot change their lack of knowledge of the laws or dangers surrounding it. A criminal justice system is justified in punishing a person’s choice to commit a crime based on their prejudices, even though they may not be able to remove bias from their mind at will.

Outside of the discussion of the laws’ legitimacy, analysts have argued that various factors make hate crime laws less effective in practice than they seem. David Rittgers believes that because perpetrators of hate crimes sometimes believe society and the government actively oppose them, making them all the more fanatical, the laws are counterproductive. In a 2009 article for The Christian Science Monitor, he stated that if people who share the perpetrator’s hateful views hear about the stricter punishments, then “the imposition of federal jurisdiction based solely on the motive of the criminal engenders resentment and encourages others to mimic his behavior.” Rittgers believes a reduction in the use of hate crime laws would reduce criminals’ power to rile up sympathizers. However, affirming that a government and society actively oppose hatred may also provide some closure for the victim or their family. In the long term, this may also help establish that hatred is never acceptable.

As a guest on The Argument, Kevin Nadal, a professor of psychology at John Jay College of Criminal Justice and the City University of New York, argued in a similar way that hate crime charges can sometimes exacerbate tensions between communities, referring in particular to the tensions between Black and Asian communities that have risen at times over the course of the COVID-19 pandemic. Nadal said, “If there are hate crimes in either direction that happen, and there are these charges, added designations, added sentences...that might lead to more hostility between those communities.” These conflicts likely trace back to a history of racism and economic inequality in America that has often pitted one group against another, as well as anti-Asian rhetoric about COVID-19 that white politicians have used. Nadal expressed a reluctance to punish individuals who may be acting on internalized racism and white supremacy, while historically marginalized and oppressed communities often need opportunities to heal.

Nadal also pointed out that it can be painful when officials introduce the possibility of charging an incident as a hate crime and do not, or cannot, actually prosecute it that way. More effective remedies for hate crimes may lie outside the criminal justice system. Coaston made a similar suggestion when she stated that people who express hate are sometimes, themselves, in need of help. As a queer Black woman, she has experienced hateful comments from strangers, yet she notes that “When I have been the recipient of hate, it is coming generally from someone who probably has already had a lot of interactions with law enforcement. They are likely homeless, or struggling with mental health crises.” Using more public funds for mental health care may be a more effective way to reduce crime, including hate crimes.

Sarah Lustbader analyzes the costs and benefits of using additional prison time as a tool against hate in a 2020 article for The Appeal. She argues that people who commit hate crimes are often suffering from delusions and are not likely to be deterred by the threat of additional years in prison. She writes, “Funding mental health research and treatment, and combating hate and radicalization, might actually have helped.” It’s relevant that keeping people in prison is expensive; moving away from a system of longer sentences could open up funds for education about bias and prejudice. On The Argument, Freeman mentioned that the Anti-Defamation League supports a bill currently under discussion in Congress, the Khalid Jabara and Heather Heyer NO HATE Act, that would fund education and training to help reduce hate crimes, as well as better data collection on these incidents. 

Lustbader notes that in comparison to longer sentencing, a resource-based approach does not let politicians appear as responsive to individual incidents. Achieving justice through channels besides criminal punishment rarely appears neat or simple. As activists in the Black Lives Matter movement and the movement to abolish America’s prison industrial complex have argued, it requires a long-term commitment to understanding complex, nuanced issues and creating systems that support communities. This strategy’s impact is likely to be more genuine, as well as more sustainable.

References

Hurd, Heidi. “Why Liberals Should Hate ‘Hate Crime Legislation,’” Law and Philosophy 20, no. 2 (March 2001), https://doi.org/10.2307/3505240. 

Lustbader, Sarah. “More Hate Crime Laws Would Not Have Stopped the Monsey Hanukkah Attack,” The Appeal, 6 January 2020, https://theappeal.org/more-hate-crime-laws-would-not-have-prevented-the-monsey-hanukkah-attack/. 

Rittgers, David. “Hate Crime Legislation Would Backfire,” The Christian Science Monitor, 10 July, 2009, https://www.cato.org/commentary/hate-crime-legislation-would-backfire. 

“What’s Wrong With Our Hate Crime Laws?”  The Argument from The New York Times, 31 March 2021, https://www.nytimes.com/2021/03/31/opinion/hate-crime-laws.html.