On Hate and Equality
Yale Law Journal, 1999
Posted: 24 May 1999
Hate crime legislation has sparked substantial political controversy and scholarly discussion. Existing justifications for hate crime legislation proceed on the premise that the rationale supporting such legislation must be found either in the greater gravity of the wrongdoing involved or in the perpetrator's greater degree of culpability. This premise stems from a fundamental theory that dominates criminal law scholarship: the wrongfulness-culpability hypothesis. The wrongfulness-culpability hypothesis posits that the only two grounds that may justify disparate treatment of offenses are the greater wrongfulness of the act or the greater culpability of the perpetrator. Yet, all attempts to demonstrate that hate crimes are more wrongful or morally reprehensible than other crimes have failed to carry the day.
This Article challenges the dominance of the wrongfulness-culpability hypothesis and proffers an alternative paradigm that supports bias crime legislation: the fair protection paradigm. The fair protection paradigm conceptualizes protection against crime as a good produced by criminal law and thus requires that it be distributed in an equal manner. Specifically, it imparts a duty on the state to equalize individuals' vulnerability to crime.
An individual's vulnerability to crime can be defined as her expected harm from crime--that is, the probability of harm multiplied by its magnitude. A state may address the problem of vulnerable victims in one of two ways. First, it may impose harsher sanctions on those who commit crimes against vulnerable victims. Second, it may devote more resources to the identification and prosecution of individuals who attack such victims. When the latter tactic is unfeasible for some reason, equalizing protection against crime through the imposition of harsher sanctions may be the only way by which the state can provide vulnerable victims with greater protection and thus equalize their vulnerability to that of other potential victims.
The fair distribution of protection does not require absolute equality in expected costs of crime to the victim. Vulnerability to crime is a function of myriad factors such as wealth, age, and attitude towards risk, life experience, and physical and intellectual prowess. Moreover, disparities in vulnerability to crime often depend on the precautions taken by the victim herself. The state cannot be reasonably expected to annul all disparities in the vulnerability of different potential victims of crime. This Article argues, however, that at a minimum the state ought to annul disparities that stem from certain personal characteristics of victims, such as race, gender, religion, and sexual orientation.
This Article also shows that the explanatory power of the "fair protection paradigm" ranges far beyond the context of hate crimes. The fair protection paradigm can explain, for instance, why crimes directed against particularly vulnerable victims, such as the elderly and the disabled, are often punished more severely than crimes directed against less vulnerable ones. Properly understood, therefore, hate crime legislation is part of a larger scheme of providing fair protection against crime. Recognizing the right of victims to equal protection from crime makes it clear that hate crime legislation is consonant with the goals of criminal law. Hate crime legislation is merely one essential step towards a more egalitarian provision of protection against crime--a step which is congruous with the broader goals of the criminal law system.
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