Taking the 'Hate' Out of Hate Crimes: Applying Unfair Advantage Theory to Justify the Enhanced Punishment of Opportunistic Bias Crimes
53 Pages Posted: 5 May 2008 Last revised: 7 Oct 2015
Date Written: June 21, 2008
Should bias crime perpetrators who, for personal gain, intentionally select victims from social groups that they perceive to be more vulnerable be punished similarly to typical bias crime perpetrators who are motivated by group hatred? In this Comment, I apply unfair advantage theory to argue that enhancing the punishment of opportunistic bias crimes is proper because of the perpetrators' motivations and the crimes' harmful effects. In its most basic form, unfair advantage theory justifies punishment based on the unfair advantage that criminals obtain over law-abiding members of society by violating the law. I contend that the enhanced punishment of opportunistic bias crimes is justified because the advantages that perpetrators obtain by committing them are greater than the advantages obtained from parallel crimes. In terms of motivation, I argue that opportunistic bias crimes warrant additional punishment because perpetrators unfairly and deliberately capitalize upon perceived disadvantages stemming from their victims' group membership. In terms of harmful effects, I argue that opportunistic bias crimes warrant additional punishment because such crimes perpetrate the belief that certain victims are easier crime targets because of disadvantages stemming from victims' group membership. Perpetuating this belief enables potential offenders to continue to profit unfairly from exploiting the perceived disadvantages tied to group membership by committing opportunistic bias crimes in the future. I also posit that the application of unfair advantage theory to defend the enhanced punishment of opportunistic bias crimes is supported by all three fundamental theories of punishment: retribution, utilitarianism, and denunciation.
Keywords: hate crimes, bias crimes, criminal law
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