Introduction

On the night of October 6, 1998, Matthew Shepard was found severely injured after an attack near Laramie, Wyoming. During the ensuing trial, the prosecutors argued that the attack was motivated by anti-gay sentiments (Brooke, 1998). Though the defendant was not convicted of hate crime, this case brought ‘hate crimes’ to the center of attention, with intense debates over whether they deserve separate legislation with harsher punishments.

In order to discuss whether hate crimes should be punished more severely with more efficiency, it is essential to first clarify the definition of hate crimes and the relating legislations. The United States Department of Justice defines hate crimes as ‘using violence towards people or groups with specific characteristics out of discrimination and hatred ’. Meanwhile, the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, passed in 2009 as an expansion of previous provisions in America, regulated that the statutory offense of hate crimes includes crimes motivated by a victim’s ‘actual or perceived race, color, religion, national origin, gender, sexual orientation, and disability’ (Marie, 2009).

In an attempt to reduce the impact suffered by the victims, there has been an increasing trend for countries to pass separate hate crime acts, meting out more severe punishments to those committing them than the same crime with different motives. However, such legislation can be considered unnecessary, in that it is ineffective in accomplishing its goal of protection, and the provisions might have contrary effects. In order to understand hate crimes and its legislations more clearly, in the following discussion this essay will: (1) put forward the key argument proffered by people who support severer punishments for hate crimes; (2) explain how this argument doesn’t stand and that the separate legislation can’t reach its goal; and (3) discuss how hate crime legislations could have contrary effects.

In defense of stricter hate crime legislation

A critical argument provided by people who support stiffer penalties for hate crimes is that they have a further-reaching impact on victims than most other types of crimes, given that they cause psychological trauma to the victims, such as a sense of vulnerability and despair (Charles, 1987). Also, the scope of hate crime victims includes the entire community, rather than the crime’s immediate target, under which circumstances more severe punishment of hate crimes is in urgent need.

Whilst there is a necessity of hate crime codification in sending a strong message of tolerance and equality (Eisenburg, 2014), when brought into enforcement, the hate crime literature may not accomplish its goal of sustaining social tranquility and may even lead to creating turmoil. Therefore, punishing hate crimes with more severity would be an unwise choice.

The arguments for why hate crimes should not be punished more harshly are as follows:

1. The current hate crime legislation is not effective in reducing psychological harm suffered by victims who feel stigmatized by the crimes;

2. Though the hate crime legislation exists, misjudgment frequently occurs, leading to negative social consequences;

3. Only certain categories of individuals are protected under hate crime legislations, leading the legislations to be prejudicial.

Hate crimes and psychological suffering

Let’s first clarify argument (1). Some contend that victims of hate crimes suffer greater psychological trauma, in which case the criminals deserve harsher penalties because they have committed greater wrong (Charles, 1987). However, this statement isn’t always true as ‘all crimes of violence tend to produce psychological trauma in their victims’ (Hurd & Michael, 2004). Moreover, it is pointed out that existing studies that consider hate crime victims enduring greater psychological harm are inaccurate,  since they fail to compare the suffering experienced by the victims with the trauma    experienced by victims of similar crimes (Barnes & Paul, 1994). Therefore, we can infer that the plausible premise justifying that hate crime criminals are more blameworthy because of the greater psychological suffering brought to the victims does not hold in most cases. Besides, even if hate crimes do indeed bring greater mental harm to people under particular circumstances, the sentencing enhancement provisions fail to significantly reduce the psychological impact suffered by victims, and sometimes this impact is even worsened by misjudging, which leads to argument (2).

The misjudgment of hate crimes

In premise (2), it can be argued that there are a great number of misjudgments when it comes to hate crimes, because the court has difficulty in distinguishing between them and crimes with other motives. This can lead to worse consequences than without hate crime legislations, since ‘social tensions increase when hate crime legislation exists but a crime is not charged as a hate crime’ (Alongi, 2017). To begin with, there are barriers in obtaining convictions under hate crime legislations due to: 1) the difficulty in recognizing the crime motives, 2) the inconsistency among the related statutes, and 3) lack of law enforcement training.

Firstly, it is difficult to pin down the motivation of hate crime with certainty, which is a crucial part of identifying a crime as specifically a hate crime. Unless the perpetrators confess directly that the crime was motivated by bias, one of the few ways to recognize the crime as a hate crime is to infer from the criminal’s previous speech, personal property, etc. (Shively, 2005). However, the problems that lie here are that it is doubtful to build a direct connection between offenders’earlier words, even discriminatory, and their actions on the actual day of the crime. Since an individual’s motive lies peculiarly within their own knowledge, the ability of prosecutors to prove the motive in hate crime cases is greatly undermined (Morsch, 1973). Hence, it can be deduced from the previous argument that these identification barriers make it difficult to distinguish between a hate crime and other-motive-based crimes, weakening the effects of the statutory.

Secondly, the inconsistency of hate crime statutes, particularly in the United States between the federal and state level, makes it hard to convict the crimes under current legislation. According to the hate crime legislation map, not every state in the United States enacts the same crimes codes in accordance with the provisions at the federal level. Eleven states in America exclude gender orientation in the legislation while seven states interpret the statutory to include bias toward political affiliation (Anti Defamation League, 2022). This inconsistency defies the values of the rule of law, providing the ground for criminals to take advantage of legislation loopholes (Dotan, 2005), again weakening the coherent implementation of hate crime legislation.

Thirdly, currently, there is a lack of law enforcement training regarding hate crimes, increasing the possibility of judging bias. Among the fifty-one states in America, 31 of them fail to provide hate crime training for law enforcement. Since an essential part of convicting these crimes is the proof that the offense is ‘by reason of’ victim’s race, gender, nationality, etc., without proper training regarding how to identify hate crimes, it may even become harder to correctly find out the motivation of the crime. Besides bringing injustice to criminals and victims, the misjudging may cause a greater impact on society, as Justice Brandeis previously mentioned. ‘If government becomes lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself, it invites anarchy’ (Brandeis, 1928).

Misjudging has an enormous negative ramification, because people may feel betrayed when they find that the hate crime legislation they support only achieves a symbolic success. When hate crime laws exist but a crime is not prosecuted as such, social tensions rise, and the legislation causes contrary effect, contrasting to its primary goal of maintaining social stability.

Arbitrary inclusion of special groups

Now onto argument (3), that hate crime legislation caters to special groups by arbitrarily adding them into protection under official legal framework. For instance, in the UK, the legislation recognizes five types of hate crime motivated by race, religion, disability, sexual orientation, and transgender identity (CPS, 2020), whilst Armenia enhances penalty only for crimes with ethnic, racial, or religious motives (Council of Europe, 2020). This difference in hate crime definition between countries raises a question on how the government decides which groups of individuals are under protection. Basing punishment on the traits of specified groups of victims can be divisive, pitting them against one another as legitimate victim. For instance, those who are targeted because of their gender in Armenia do not deserve the same legal status or degree of protection as victims of crimes motivated by race or other prejudices, resulting in social injustice. Worse still, this negative and alarmist image of a divided, conflict-ridden community may serve as a self-fulfilling prophecy, exacerbating societal tensions. Moreover, by adding certain groups into protection arbitrarily, no matter how wide the scope of hate crime legislation is, the government is also excluding others from the legal protection (Shively, 2005). This is also a form of discrimination and injustice by marginalizing other groups’ opportunities, counter to the original purpose of the hate crime legislation to eliminate discrimination across society.

Recommendations

However, denying stiffer punishments for hate crimes does not mean ignoring the crimes altogether. It is still an undeniable fact that hate crimes are wide-spread across the globe, particularly in this current post-pandemic era. In order to thoroughly solve the problem of hate crimes, finding out the root cause of the problem is essential. In Fukuyama’s book Identity:The Demandfor Dignity and the Politics of Resentment, he states that the reason why nationalism won’t disappear in society in the near future is that our world hasn’t solved the problem of thymos, a part of the soul that looks for acknowledgment of dignity. The thymos consists of two parts: isothymia- the desire to be respected on the basis of equality; and megalothymia- the desire to be seen as superior (Fukuyama, 2019).

Similar to nationalism, hate crime also has roots in ‘megalothymia’ . The perpetrators engage in hate crimes out of a fallacy that they are superior to other groups. Additionally, the driving factors of the prejudices include the misconception that they are protecting their organizations and the incitation of far-right political figures and movements. Aside from the ideological and political accounts, economic hardship also contributes to the rise of hate crimes. Research has shown that people are more inclined to direct their frustrations at vulnerable racial targets as a result of economic downturns (Green & Donald, 2001). In the case of the post-pandemic era, researchers have discovered that the economic hardship brought by COVID-19 might encourage members of the majority group to engage in perceptual processes that disfavor minority group members and raise the possibility of discrimination (Johnson & James, 2021).

Therefore, it can be inferred that the orientation of hate crimes is more intricate than it seems. It is a societal issue affected by various contextual factors, rather than an individual affair. For this reason, what needs to be done in the status quo is to utilize a milder method to solve the problems of hate crimes, by stimulating economic growth and trying to change public opinions to respect and appreciate the diversity via education, or other positive methods. Only punishing hate crime criminals more severely is insufficient, infeasible, and unacceptable.

Conclusion

Though the starting point of hate crime legislation is to eliminate crimes motivated by prejudice and to relieve the psychological suffering of the victimizers, closer analysis reveals the ineffectiveness of the legislation in approaching its goal. Furthermore, such codes lead to misjudgments, caused by barriers in judging the crime’s motivation, inconsistency among existing legislations and a lack of professional training. Besides, the legislation creates discrimination by catering to special groups into protection, running counter to its initial intention. Overall, this essay considers that to thoroughly solve the problem of hate crimes, it is crucial to find out the root of hate crimes in a societal context and resolve the problem at its origin.

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