We punish certain crimes based on degree of intention. For example, killing someone accidentally is manslaughter, but killing them with premeditation is murder in the first degree. Killing without premeditation is not first degree murder. The more deliberate (intentional) the crime, the more serious the crime. Presumably, the less control you have over your actions, the less culpable you are.
What about discriminating between crimes based on motivation? What if you commit first degree murder because of the victim's religion, sexual orientation, or skin color, rather than more ordinary motives such as to steal property, or to punish unfaithfulness in love, or to cover up another crime?
Should genocide be singled-out as a more heinous act than a grand massacre which has nothing to do with race? If so, why?
asked May 31 '12 at 17:07
John Paquette ♦
I'm not aware of any discussion of "hate crime" in Ayn Rand's writings, probably because it hadn't been "invented" yet (as far as I know) during her lifetime. But Leonard Peikoff has blasted the concept as recently as the 4/2/12 edition of his weekly podcast (#210, fourth question). The question was:
Should a racist comment made in the heat of battle about a sports pitch be treated any differently than that of any other derogative comment, any other verbal execration or swearing, that is directed at an individual player?
Dr. Peikoff explained that there should be no such thing as a crime or special crime or hate crime due to racially charged remarks. Hate crimes only give prosecutors a means to try to read the minds of someone they don't like. It should not cost a person's career or national reputation just for an isolated remark given casually. There is a reign of terror today against the majority, who can be called anything and everything if they say one word that even remotely suggests racism or other such bias. Hate crimes (as a principle) also lead to expansion of government, and feed the nihilist liberals who want to destroy America. Today the trend is not socialist any more; it is nihilist, seeking to prevent anyone from being rich. The use of racism to terrify everyone is one example of the nihilism that is destroying our country.
Dr. Peikoff didn't discuss the issue of intent as a factor in determinining the relative seriousness of a crime, but there is clearly a great difference between harm done deliberately and harm done entirely accidentally (unintentionally). There is also a difference in harm done in immediate emotional anger or distress, with no great premeditation. But differentiating degrees of criminality according to degree of intent does not involve government adopting principles that go beyond physical force in defining crimes, whereas "hate crimes" do involve government injecting itself into purely moral issues not directly involving an initiation of physical force against others. What government exists to stop, according to Objectivism, is initiation of physical force. It is not part of the proper functions of government to legislate against actions that may be immoral by Objectivist and/or general "community" standards. If the immorality is accompanied by crime, it's the crime itself that is the proper focus of government retaliation, not the accompanying immorality (other than the moral evil of initiating physical force of any kind, for whatever reason). The only proper issue for government intervention is initiation of physical force itself, including the degree of intent involved in the initiation.
The Wikipedia topic of "Hate crime" describes hate crime as follows:
In crime and law, hate crimes (also known as bias-motivated crimes) occur when a perpetrator targets a victim because of his or her perceived membership in a certain social group, usually defined by racial group, religion, sexual orientation, disability, class, ethnicity, nationality, age, sex, or gender identity.
A proper government, in the Objectivist view, should not attempt to inject itself into purely moral issues, not even indirectly by means of the "hate crime" diversion. Crime is crime, i.e., initiation of physical force against others, regardless of why a person might be doing it. And "initiation" generally means deliberate in some way. Purely accidental infliction of harm upon another usually does not become criminal (by Objectivist standards as I understand them) unless there was gross, wanton, reckless negligence involved and/or refusal to compensate the victim for the damages.
Update: Retaliatory Physical Force
I must take strong exception to the interpretation offered in Eric's Answer:
I believe there are two senses of term "hate crime" that are employed, and that need to be distinguished. The one John is using treats a "hate crime" as an aggravating factor in sentencing for an independently illegal act (e.g., battery). The one Ideas for Life and Dr. Peikoff in the quote in Ideas' answer appear to be using treats a "hate crime" as an independent crime involving any hate-motivated behavior.... This is an unfortunate package deal, as one sense ["aggravating factor"] embodies a valid legal principle, and the other a terrible one.
This amounts to a claim that a greater degree of retaliatory physical force is morally justified against one who initiates the use of physical force against others, if the initiation is seen as motivated in any way "by bias against one or more of the types" of designated social groups "usually defined by racial group, religion, sexual orientation, disability, class, ethnicity, nationality, age, sex, or gender identity." [Quoted from the Wikipedia article on "Hate crime" already noted in my original answer.] But does it really matter to the victim if the person who robs, kills or otherwise deprives him of his individual rights, is motivated by a defined category of bias rather than some other motive, such as the desire to steal or "get even" or to remove a perceived competitor or whatever? Is a personal or economic motive any less "anti-social" than an explicitly anti-collectivist motive? The harm to the victim is in the initiation of physical force against him -- the paralyzing of his mind, his means of survival -- not in what the initiator may think or feel toward the victim and other similar victims who may happen to fall into some designated social category.
Remember the basic Objectivist principle concerning the retaliatory use of physical force (see "Retaliatory Force" in The Ayn Rand Lexicon):
It is only in retaliation that force may be used and only against the man who starts its use.
As Eric's answer seems to recognize, using physical force against one who merely expresses hatred in a speech or social setting, but does not initiate physical force against others, does not meet the criterion of using retaliatory physical force only in retaliation against one who initiates its use. It is likewise beyond the Objectivist principle of retaliatory physical force to use physical force against a hater of a specially designated social group to a greater degree than would be used against anyone else who initiates the the same use of physical force against others for some other reason. At most, a showing of hatred may strengthen the evidence that the initiation of physical force was intentional and not accidental.
There is no question that Objectivism classifies racism and other forms of irrationalism as immoral. Regarding racism, in particular, Objectivism holds:
Racism is the lowest, most crudely primitive form of collectivism.
(See "Racism" in The Ayn Rand Lexicon.)
It is not a proper function of government, however, to attempt to enforce morality. The best antidote for immorality of all kinds, including racism and hatred of certain social groups, is the freedom of everyone not to deal with immoral individuals, especially freedom of production and trade in a system of laissez-faire capitalism. The morality or immorality of individuals is entirely for individuals to judge; it is not the business of "society," i.e., a society's government, a society's institution of retaliatory physical force. Individuals do not "belong" to society, like a form of "social property" or a "social resource." Government exists only to serve as man's agent of retaliatory physical force when needed for protection from those who initiate its use, not to advance any specific morality beyond upholding individual rights. "A right cannot be violated except by physical force." [See "Individual Rights" in The Ayn Rand Lexicon.]
Moreover, imposing stiffer penalties for "hate crimes" than for "ordinary" crimes amounts to a "foot in the door" in terms of the principle involved. It is a way of smuggling a very damaging princple into a nation's political system -- the principle that individuals may be punished for their beliefs. This is a key point that I found in Leonard Peikoff's brief discussion of "hate crimes" noted in my original Answer.
Update: Collective Victimization
From a comment by Anthony:
...we are all victims when an innocent person is robbed, killed, or otherwise deprived of his individual rights.
This sounds like a claim that a crime against one is a crime against all. But we don't need to be victims ourselves in order to want to see justice done (retributive justice) by means of retaliatory physical force, and to want to see the actual victim compensated or otherwise "made whole" again to whatever extent is possible -- and to see the retaliatory use of physical force placed under objective control rather than being left solely to the discretion of individuals.
I do not see "crime against one is crime against all" as an accurate description of the Objectivist view of moral justice and of retaliatory physical force. In Objectivism, the reason the members of a society place the retaliatory use of physical force under objective control is to know that they will be protected if attacked, without having to become counter-attackers themselves, and to minimize the possible additional damage that might be done by misdirected and/or excessive use of physical force by individual vigilantes seeking to retaliate against an aggressor who has harmed them or their loved ones or property.
I believe there are two senses of term "hate crime" that are employed, and that need to be distinguished. The one John is using treats a "hate crime" as an aggravating factor in sentencing for an independently illegal act (e.g., battery). The one Ideas for Life and Dr. Peikoff in the quote in Ideas' answer appear to be using treats a "hate crime" as an independent crime involving any hate-motivated behavior (e.g., saying racist things to someone; see Canada's hate crime laws that make it illegal to "incite hatred against an identifiable group" or "communicate hatred in a public place by telephone, broadcast or through other audio or visual means"). Both senses are legitimate uses of the term (although not necessarily legitimate legal principles), since "hate crimes" laws have been passed in numerous jurisdictions that cover one or the other (or both) senses. This is an unfortunate package deal, as one sense embodies a valid legal principle, and the other a terrible one.
Using the fact that a crime was committed purely or predominantly because of irrational prejudice as an aggravating factor at sentencing for an independently illegal act is completely proper, and in line with objectivist principles of law and justice. It is only the initiation of physical force by the criminal that allows the government to take action against him---that is clearly the bedrock objectivist principle. But once the criminal has been found guilty, what should his punishment be? Not an easy question to answer. But we do have some principles to guide the decision making process. Justice requires that the more heinous the crime, the more serious the punishment. This not only applies across categories of crimes (e.g., murder is more seriously punished than theft), but also applies within a category of crime. Thus, one murder might well deserve harsher punishment than another murder, based on how heinous the particular acts involved were.
Obviously any murder is extremely bad stuff---but there shouldn't be much disagreement about the proposition that some are worse than others. We are all familiar with the differentiation between premeditated and not premeditated murder. But lets set that easy case aside for now. Are there other factors that could be considered? Of course: how was the murder committed (torture vs. quick kill), who was the victim (little child; old lady; pregnant woman, etc. vs. rival street thug), what were the circumstances of the murder (a fair fight between rivals vs. a wanton ambush of a stranger), was the defendant's judgement impaired at the time (e.g., drugs or emotional distress--obviously not an excuse, but certainly mitigating). The list could go on and on. It seems eminently rational to include on the list whether the defendant acted primarily out of irrational prejudice. Why? Because that makes the crime objectively worse---it makes the criminal an objectively greater threat. The irrationality of the defendant makes them even more dangerous than a similarly situated defendant who committed the same act, but for a more understandable (if still misguided) reason such as pecuniary gain. Judges take all sorts of factors like these into account anyway when sentencing. What a hate crimes statute would do is either (1) explicitly give the judge power to consider prejudice motivate action as a factor, if such power was previously in doubt, or (2) compel the judge to consider the factor by raising the minimum sentence. The wisdom of such statutes is debatable---do you like flexible judge-driven sentencing or rigid statutory sentencing schemes---but the propriety of such laws seems clear to me.
The arguments about the difficulty of peering into a person's head to divine their motivation are legitimate. It is a difficulty. But such factors are weighed all the time in the law. Intent is a great example, which Ideas dismisses too easily. Clearly the evidence adduced at trial would have to be sufficient to support a finding of the motivation of the assailant---the mere race of the victim and perpetrator should not be sufficient to support such a finding, and cases that so find are clearly wrong. However, there are numerous cases where good evidence is available (e.g., statements by the defendant prior to or while committing the crime; admissions after the crime; circumstantial evidence, such as the defendant carving a swastika into the forehead of the Rabi he just murdered; etc.).
Lastly, just to make my position clear, the other sense of "hate crime" (any expression of hate toward a favored class) is completely wrong as a legal principle. Such laws criminalize beliefs and/or speech, and do not protect against the initiation of physical force. Thus, they are clearly not compatible with objectivist legal principles.
I wish I had more time to respond to the excellent discussion on this topic, but I find myself absolutely swamped recently. However, I wanted to at least note a few things quickly.
Point #1: Punishing Mental States
Mental States are an integral part of criminal punishment. While there may be valid objections to taking prejudice into account when sentencing, the mere fact that prejudice is a mental state is not one of them. Both John and Ideas readily acknowledge the propriety of taking intent into account in sentencing, but they dismiss this as if it were an entirely separate issue. Distinguishing between intentional action, reckless action, negligent action, and innocent action is routine in the law, and it is nothing more than assigning different levels of culpability based purely on the mental state of the actor. Suppose for a moment I run you over with my car. Each of the aforementioned mental states could apply to that action; however, the exact same physical action occurs in each case (my car hits you). Further, the exact same harm to the victim occurs in each case (you die). Why then are we okay (properly, in my view) with punishing the intentional murder more severely than the reckless murder more severely than the negligent vehicular-homicide, and not punishing the innocent (i.e., purely accidental) killing at all? Because we recognize that what is going on in the actor's head makes the crime more or less serious, even if the physical act is the same.
This is true not just in distinguishing between intentional/non-intentional culpable mental states, but also within such categories. For example, first degree murder and second degree murder are, in most states, both intentional murder. Whats the difference then? First degree is deliberate and premeditated murder. Again, another mental state is being used to increase punishment. The act is the same, but what the actor thinks makes a difference.
Or consider voluntary manslaughter. An otherwise intentional killing is downgraded to voluntary manslaughter if done under "adequate provocation." Ideas alluded to this as a valid distinction, but also dismissed it as being obviously different. But how is it different? The motivation of the actor is being used as a primary factor in sentencing. The physical act and the harm to the victim are the same regardless of whether the murderer is provoked or not. But we judge the reason why he acted as being less culpable than other reasons to take the same action, and thus we cut him some slack. His action is still wrong--he is still going to jail for a long time--but not as long as if he had decided to kill for a different reason.
Point #2: Why we Punish
It is simply too large of a topic to tackle here in the time I have, but I want to note that the answer to whether we should consider mental states when punishing will depend largely on why we punish in the first place. We should not punish to restore some cosmic balance or satisfy some deontological necessity as most Retributivist theories hold. Neither should we punish simply so that the victim can be revenged upon the aggressor. The principle of Justice is a principle with consequential justifications. In other words, while it is true that justice demands visiting harm upon a criminal in recompense for the harm the criminal has done, it demands as much in order to accomplish some result. The result that justice seeks to achieve is the promotion of good and the destruction of evil, and this is accomplished through objective judgements of men's character and treatment in accordance therewith. Those who commit crimes give us objective evidence of their depravity. They give us objective evidence that they are unwilling to respect individual rights. They give us objective evidence that they are dangerous to each of us. The more heinous their crime, the stronger the evidence of their character, and the stronger the inference of their dangerousness. Thus, we are justified in punishing the serious crime more harshly than the slight crime. Accordingly, if a criminal (i.e., rights violating) act that is accompanied by a factor can be objectively determined to reflect a more depraved and dangerous character than the criminal act alone reflects, then justice demands a greater punishment when the factor is present. This is what happens with 1st degree vs. 2nd degree murder--the factor is deliberation and premeditation. This is what I am arguing might be appropriate for prejudice based initiations of force.