The apparent random racial beating over the weekend of Matthew Yglesias, perhaps the most influential political blogger of his generation, raises questions about what ought to be considered a hate crime.
There's a vast amount of confusion in our society because the megaphone is routinely seized by hate-filled pundits who denounce everybody they hate as being driven by hate. So, the concept of a "hate crime" is murky, to say the least.
But, society does have an interest in deterring through harsher penalties crimes not of passion but of premeditated malice, cold-blooded crimes that occur only because of animus toward groups. Quite possibly, "hate crimes" is the wrong term completely for these types of actions, but that seems to be what we are stuck with.
My view is that motivation for a crime should matter some in punishing the crime.
For example, by way of analogy, I particularly loathe witness-murdering.
Consider two homicides:
I think that in an era of long sentences, the death penalty can play a useful role in stigmatizing and deterring cold-blooded witness-murdering, but it wouldn't be right in the first case, a classic crime of passion.
Similarly, consider two crimes that might be subject to additional hate crime penalties:
Now, it's not uncommon for prosecutors to attempt to pile on hate crime penalties in cases where a member of a less legally privileged group uses, during a fit of rage, an epithet for a member of a more legally privileged group. But, clearly, the cuckolded man didn't sock his cheating wife because she was a woman, but because she was cheating. Punishing him extra for saying the epithet "bitch" is severely confusing cause and effect for no good purpose in deterring future violence.
In contrast, the second case is one that the law might well use additional penalties to deter because, like witness-murdering, it's rational and malign. There's no other motive for attacking a random white man other than the satisfactions of attacking a random white man.
Or consider, these two cases:
The first case seems to me like a pretty average screwed-up crime among the screwed-up classes, which should be punished in a pretty average fashion — fairly harshly, according to my views, but there's no obvious reason for incremental penalties. It wouldn't be the kind of crime that strikes other as worth imitating.
The second case, however, seems like a classic racist hate crime. There was no motivation whatsoever for this violence to occur other than boredom and racial animus. Society has an interest in punishing more heavily in the name of deterrence otherwise pointless crimes carried out not in the heat of passion but with malice aforethought.
At minimum, society has an interest in keeping stuff like this from becoming fashionable. Say, or example, a third person videoed the attack on Yglesias, and the whole point of the attack was to have something cool to post on YouTube.
Granted, proving in court the lack of any other motive is often difficult, and so be it. Better ten guilty men go free and all that. But, it is reasonable to have the threat of additional penalties for violence carried out for rational but malign reasons, such as witness-murdering or polar bear hunting.
Of course, all this logic chopping isn't very relevant to how most people think about hate crimes, which is in Who-Whom terms. Matthew Yglesias is extremely well-plugged into the world of Washington punditry, but it doesn't occur to his peers that this attack on him could possibly be a hate crime ... because he's white.