Hate Crime Enhancements -- Two Sides of the Argument This project represents the evolution of opinion as a function of the process of a strictly academic exercise. At the outset of the project, the writer maintained a specific belief: namely, that hate crime enhancement policies are fundamentally unjustified. It was the process of formulating a counterargument to the writer's position that ultimately resulted in a change of opinion. The writer is now of the opinion that hate crime enhancement is a policy that is justified in principle and not substantially different from various other types of distinctions made in American civil and criminal law with respect to the consideration of motivation as an element of moral responsibility and criminal culpability.

The Argument against Hate Crime Enhancement Legislation

One of the main purposes of law is to encourage behaviors that are beneficial to the many members of society and to discourage behaviors that are detrimental to the many members of society (Taylor, 1982). Another main purpose of law is to provide just compensation for individuals wronged by others through civil awards and to punish wrongdoers while simultaneously protecting the general public from those inclined to conduct themselves in ways that are harmful to others and to society (Taylor, 1982). Generally, civil laws address wrongful conduct and the breach of duties that do not also involve criminality while criminal laws address wrongful conduct that does involve violations of criminal statutes. In both cases, the purpose of laws is to affect human behavior and to provide an appropriate response on the part of societal authorities to behaviors that violate the norms, values, and reasonable expectations of others in ways that give rise to reasonably justified enforcement by societal authorities.

One of the hallmarks of the American democratic republic is freedom of thought and freedom of conscience, and this proposition is impliedly embodied in the U.S. Constitution, primarily by virtue of the First Amendment and the due process clause of the Fifth Amendment (Friedman, 2005). While freedom of thought and conscience are not explicitly mentioned in the Constitution, they were the subject of argument in the Federalist Papers through which the eventual signatories to the U.S. Constitution debated the purposes and the finer points of distinction and merit of various approaches to national government during the period between the transition from governance by the Articles of Confederation and the U.S. Constitution (Menand, 2001). The view that ultimately prevailed from those historic debates was the conclusion that the ideal of religious freedom that the Forefathers sought could only be possible if freedom of belief, and conviction, conscience, and opinion were protected from infringement by the government authorities (Menand, 2001).

The related concepts debated in the pre-constitutional era became the bases of the free exercise clause and the religious infringement clause of the First Amendment, as well as of the so-called First Amendment rights of "free speech" (Laycock, 2011; Sullivan & Gunther, 2007). In principle, all of those rights emanate from the fundamental distinction between physical actions and internal states of mind and thought (Laycock, 2011; Sullivan & Gunther, 2007). Those who helped establish the new nation in North America had no intention of duplicating the government practices that persisted in Britain well into the 19th century, whereby allegiance to the wrong religion and critical utterances of the royal family were punishable by death. The experience of living under British rule motivated the Founders to explicitly protect the right to autonomous thought and belief and the right to express those beliefs and opinions without fear of punishment or persecution (Laycock, 2011, Menand, 2001).

The concept of enhanced criminal penalties for hate crimes violates that fundamental distinction between external thought and outward-directed action. The logical measure of civil damages is the actual harm suffered by an aggrieved party, not on the internal workings of the mind. Likewise,...

By definition, if the Constitution protects the right to express any belief or opinion, it also protects the right to hold those same beliefs and opinions. Allowing criminal penalties to reflect characterizations of the internal thoughts of criminal defendants violates the spirit of freedom of thought, belief, conscience, and conviction that are embodied in the U.S. Constitution.
The Argument in Support of Hate Crime Enhancement Legislation

It is absolutely true that the U.S. Constitution was designed, in part and among many other things, to protect the right of every individual to hold beliefs and opinions about anything without fear of government reprisal for expressing them, much less for merely holding them sincerely (Friedman, 2005). It is equally true that there is no such thing as any personal thought that justifies punishment, no matter how heinous or immoral that thought.

Civil law protects all members of society from having to bear the consequences of another's inappropriate conduct and criminal law protects all members of society from those who intentionally violate laws that expressly prohibit certain behaviors because they are detrimental to others. It is also true that prosecuting thoughts is never morally permissible, whether in the civil or the criminal realm. However, there is a fundamental flaw in the logic of equating hate crime enhancement policies with the prosecution of purely internal thought. More importantly, it is not the case, either in the civil or the criminal realm, that the law considers elements of internal thoughts in weighing the appropriate assignment of responsibility and criminal culpability. In fact, the character of pure thought is a feature of many types of civil claims and criminal penalties. In those situations, civil damages and penal terms of incarceration often reflect the mindset of the individual at the time of the problematic behavior.

For example, just consider the difference between first-degree murder and second-degree murder. Generally, where the defendant acted purposefully to harm another but without any prior intent to kill him, he is guilty of second-degree murder (Schmalleger, 2009). Generally, where the defendant acted purposefully with the intent to kill him, the defendant is guilty of first-degree murder, a crime that carries a harsher penalty (Schmalleger, 2009). In both cases, the events from the perspective of the victim and the end-result to the victim can be identical, such as a deliberate and unprovoked punch in the face outside a bar that knocks the victim off his feet and causes him to break his skull on the curb and die. A perpetrator who admits that he "wanted to hit him hard enough to kill him, only I thought it would be from my punch, not from the sidewalk" is guilty of first-degree murder. A perpetrator who admits that he "was still mad that he got away with punching me in the club and I wanted to return the favor" is guilty of second-degree murder. The victim is equally dead in both cases and from the same punch from the same fist to the face. The only difference is the mindset and the intention of the perpetrator.

The same is true in civil law. A person who slanderously defames another person or who makes impermissible commercial use of another person's intellectual property is liable for damages for slander or for infringement of intellectual property, respectively. However, the wrongdoer who slanders another deliberately, knowing of the falsity of the statement, and deliberately, for the express purpose of injuring the other person is liable for additional punitive damages for malice. Malice is strictly a state of mind. From the perspective of the individual defamed, the words of the defamatory statement are identical, as are any damages; but the liability of the slanderer is greater if he acted with malice (Sullivan & Gunther, 2007). There is a similar distinction between the damages triggered by wrongful usurpation of intellectual property by accident or erroneous…