Hate Speech should be forbidden.

[jberryhill]

59. I'm not wearing a uniform

But in criminal law mens rea isn't a matter of making one victim any more special than another - it's about the state of mind of the actor and the social threat posed by that actor.

If I had to guess, I would suppose that most assaults and murders occur between people who know each other. People kill other people for all sorts of "reasons".

So let me give you two scenarios...

1. Aaron is married to Barbara. Barbara divorces Aaron and runs off with his longtime friend Charlie. Out of jealousy, Aaron plots to kill Charlie and one day he shoots Charlie to death.

2. Alfred is a Nazi. He hates Jews. He goes out looking for a Jew, finds one and shoots him to death.

In terms of maintaining social order, to whom is Aaron a threat? Is his murder of Charlie part of some generalized animus toward a class of people historically threatened with violence?

Aaron is a threat to those with whom he is socially involved. Aaron is no threat to a class of people who encounter Aaron-minded individuals on a regular basis. He wanted to kill a specific person - Charlie. He did it, and it's done with. After killing Charlie he might drive down to the diner, take up the seat next to mine at the counter, order a cup of coffee and is no actual threat to me whatsoever.

Alfred is a bigger social problem. His motivation does not arise from some kind of particularized animus against his victim, but he's out to get any number of unspecified others who have no way of avoiding him or knowing that he's out to get them until it is too late. Additionally, Alfred's mindset is exemplary of a type of generalized social threat which persons of his target class encounter on a regular basis, and who live in fear of such persons.

It's not about the "status of the particular victim", it's about the mindset of the criminal in question, and the wider effect of that mindset on society generally.

Now you could say something like, "But what if the killer hates doctors and is out to get doctors? Doesn't that constitute a wider class of victims than a particularized assault or killing?" While superficially true, it is also the case that there is not a reinforcing organization of "we hate doctors" types who contribute to crimes against doctors, and against which there is a social priority of deterring with particularity. Nor is there any oppressive daily concern in the medical community about such organizations.

In the case of police, the theory seems to be that someone who is willing to go after persons known to be armed for the purpose of maintaining order and safety, is exceptionally dangerous and is going after those who are ostensibly charged with protecting others against dangerous persons in general.

So I think the idea is an attempt to calibrate criminal sentences in accordance with a perceived level of danger posed by the criminal - not some prize based on the status of the victim.

Think about Aaron again. Now, sure, we don't want people with poor impulse control to the point of murderous action running around at large, but he wanted to kill Charlie and he's already done that. So that horse has left the barn. I'm not really any safer with Aaron off the street than I was before. In the case of Alfred, though, there are a lot of people who are safer with him off the street, because his intent is a continuing threat to a class of people who already have the social handicap of having to put up with people like him to varying degrees of expression.

Whether those theories are empirically fruitful is debatable, but it's not as if there isn't some sort of rationale behind them, and it is kind of surprising that it would be some sort of mystery as to why there might be this kind of "socially undesirable aggravating factor" as a consideration in sentencing.