Contextualizing Bias Crimes: A Social and Theoretical Perspective on Frederick M. Lawrence's Punishing Hate

41 Pages Posted: 8 May 2008 Last revised: 24 Jun 2009

See all articles by Alexander Tsesis

Alexander Tsesis

Florida State University College of Law

Date Written: 2003

Abstract

This essay surveys the underlying justification for bias crime laws from the perspectives of retributive and consequentialist theories.

Retributivist theory justifies punishment in terms of its relationship to past acts. Retributivists believe that punishment should be both deserved by an offender for his or her wrongdoing and proportionate to the offense which was committed; it should inflict pain against convicted wrongdoers in return for the suffering they caused. A primary implication of this theory is that it advocates punishing criminals irrespective of (or at least ambivalent to) whether that course of action is useful for achieving broader social goods.

Consequentialist theories of punishment, by contrast, justify punishment in terms of its potential to deter, incapacitate, and rehabilitate perpetrators-its potential to produce good consequences. Within the context of criminal justice, the good consequentialists seek is public safety, and laws must employ techniques which are most likely (or at least as likely as any other) to improve crime prevention. Policymakers and adjudicators can gauge the appropriate severity of punishment by determining its likelihood to reduce crime.

I think a mixture of these two theories best explains why enhanced punishments for bias crimes are legitimate. The differences between retributivist and consequentialist theories can be bridged by legislation which expresses social disapprobation with bias crimes Retributivism appeals to the sense that guilty individuals should be punished, while consequentialism reflects government's obligation to design a criminal justice system which assures citizens' security. A mixed theory integrates these theories to best express the greater social disapprobation with violence committed to instigate intergroup conflict.

Keywords: legal theory, hate crimes, civil rights, motive, retributivism, consequentialism, rule consequentialism, deontology v. consequentialism

Suggested Citation

Tsesis, Alexander, Contextualizing Bias Crimes: A Social and Theoretical Perspective on Frederick M. Lawrence's Punishing Hate (2003). Law of Social Inquiry, Vol. 28, No. 315, 2003, Available at SSRN: https://ssrn.com/abstract=1130344

Alexander Tsesis (Contact Author)

Florida State University College of Law ( email )

425 W Jefferson St
Tallahassee, FL 32301
United States

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