Punishing Bias: An Examination of the Theoretical Foundations of Bias Crime Statutes
Northwestern University Law Review, Vol. 91, p. 1015, 1997
Posted: 1 Oct 1997 Last revised: 3 Dec 2019
Date Written: 1997
Bias crime statutes establish increased penalties for crimes committed because of race, color or religion. The Article examines various possible justifications for bias crime statutes to elucidate ways that thought in general, and bias in particular, may be relevant to punishment. The Article takes a generally retributivist perspective on punishment. Under retributivism, increased penalties are justified only for greater wrongfulness or greater culpability. Bias crimes might be considered intrinsically more wrongful than other crimes because they violate a person's interest in not being discriminatorily harmed. But such an interest implies an interest in another's thoughts inconsistent with established notions of autonomy. Alternatively, bias crimes might be considered contingently more wrongful because of their secondary effects on the victim's community and society. Uncertainties concerning under- and overinclusiveness, however, weigh against employing bias as a proxy for such effects. Mental states, such as intent, are traditionally relevant to culpability. Culpability, however, is a matter of an actor's attitude toward morally relevant features of an act or person. Bias is an attitude toward features, such as race and religion, that are morally irrelevant. Bias thus cannot increase culpability. Based on these analyses, the Article concludes that bias crime statutes are more problematic than generally recognized.
Keywords: Bias crimes, hate crimes, culpability,
JEL Classification: K14
Suggested Citation: Suggested Citation