Which should the law treat more severely: Killing a guy because he cut you off in traffic or killing a guy because you don’t like his race?
Elsewhere on the web (link omitted because the source is the invitation-only blog of a personal friend), I read the following:
In the former case, you’re a danger to the person who wronged you. In the latter, you’re a danger to tens of millions of people, and that’s just in the US.
Hate crimes are different because the perp’s target list is vastly larger, with the built-in implication of recidivism.
There’s so much wrong with this I’m not sure where to begin. First of all, when a guy kills another guy for cutting him off in traffic, I’m inclined to think the likelihood of recidivism is pretty high. It’s not like nobody’s ever going to piss him off again. Second of all, I’d think that severity of punishment should be tied primarily to its effectiveness as a deterrent to others, not as a deterrent to recidivism. We can deal with recidivism partly by keeping an eye on past offenders, but when it comes to deterring unknown others, punishment is all we’ve got.
But I mention those issues only in passing on my way to what I think is the really interesting question, namely: Which is more harmful? Targeting a specific individual for death or targeting a randomly chosen representative of some race?
And while we’re at it: Which is more harmful? Targeting someone for being black, or for being white?
1. Generally speaking, people will pay more than a million times as much to avoid certain death as they will to avoid a one-in-a-million chance of death. By that measure, targeting a specific individual is more harmful than targeting a randomly chosen Albanian. And indeed, we allow this fact to guide public policy all the time. We are willing to spend, typically, maybe 5 or 10 million dollars for a guard rail that we expect to save a single randomly chosen life, but we’re willing to spend far more than that to save a particular miner trapped underground. I’ve argued (for example, in Chapter 15 of More Sex is Safer Sex that we ought to rethink those policies, but most people (unlike me) seem to be entirely comfortable with them. If you’re one of those people, then you ought to be willing to spend more to deter the death of one specific person than one who’s randomly chosen from a large population. In other words, you should view the “hate crime” motive as a mitigating factor, not an aggravating one.
2. To put this another way: When you target a specific victim, you do a lot of damage to one person. When you target a randomly chosen Albanian, you do a small bit of damage to each of many Albanians. It’s not immediately obvious in which case you’ve done more total damage. But all of the micro evidence points to the first case, and almost all existing public policy is formulated as if this micro evidence is definitive.
3. Suppose, however, that you believe for some reason that in this case, those arguments don’t apply. For example, you might believe that hate crimes against Albanians tend to unsettle Albanians at higher levels than are commensurate with the actual risks they face. In that case, you might be able to rescue the conclusion that hate crimes cause more harm than non-hate crimes. But you’ll also almost surely be forced to the conclusion that hate crimes against Chinese are worse than hate crimes against Albanians, simply because there are more Chinese than Albanians, each of them feeling outsized distress when crimes are committed against their group. As another application of the same principle, you’ll be forced to conclude that hate crimes against whites should be treated more severely than hate crimes against blacks.
4. The question on the table is: How does the size of the potential victim pool affect the severity of the crime? To focus attention on this question, we can consider Crime A with a victim pool of one (the guy who cuts you off in traffic), Crime B with a much larger victim pool (a randomly chosen black) and Crime C with an even larger victim pool (a randomly chosen white). (Obviously I’m envisioning a locality where whites outnumber blacks; if you live in a locality where the opposite is true, you can reverse Crimes B and C.) If your argument (like that of the blogger I’m responding to) is that “larger victim pools make things worse”, then you’ve got to conclude that Crime C is the worst. If your argument (like the one I’ve sketched, but not endorsed, in point 1) above) is that “smaller victim pools make things worse”, then you’ve got to conclude that Crime A is the worst. But you’d have to go through a lot of contortions to conclude that Crime B is the worst. I am sure a sufficiently clever debater could manage those contortions, but I’m skeptical that he could manage them in a terribly compelling way.
5. Conclusion: My blogger friend, if his argument is both serious and honest, should endorse the conclusion that hate crimes against whites are worse than hate crimes against blacks. Either that, or he should rethink his argument.
6. We really ought to have formulated this question a lot more carefully in the first place. “Which crime should be treated more severely?” is not a well-defined question. Does it mean, for example “Which crime should be prosecuted most vigorously?”, or “Which crime should be punished most harshly?”. Those are not the same question, and I (like my blogger friend) have been careless about conflating them. But I suspect that no matter how careful we are, it’s going to be very hard to avoid some conclusion along the lines of point 5).
7. (This was in my original draft and somehow got inadvertently cut before I posted; I’m restoring it now): You could also argue that the death of an aggressively bad driver is marginally less tragic than the death of a randomly chosen black. If you expand on this argument in the obvious way, it’s an argument for treating hate crimes more severely, but a slight variant (namely, that individual targeting can also deter desirable behaviors) goes the other way. In any event, I take this to be off topic, since the post I’m responding to is specifically about the size of potential victim pools as an argument for or against hate crime legislation.
Addendum: If I ever kill you in a rage, it’s not going to be for cutting me off in traffic; it’s going to be for ignoring the logical consequences of your own arguments. Just sayin’.