Jean Valjean broke a window pane to steal a loaf of bread. He intended to take the bread. It was not his. He committed a crime. What caused him to act? (1) A desire for money? (2) Did he need to feed his family? (3) Did he hate the store owner and want to deprive him of the profit from the bread? (4) Did he steal the bread because the store owner’s gay? It seems to me that all of those, including the last, are motives, and to argue that ONLY the last has no moral weight is to make an argument of equivocation that all the first three are somehow “intent,” while only the last is “motive.”

Here’s another, closer example. It’s legal to discriminate. It’s illegal to discriminate because someone’s a woman. How is that not punishing motive? Is there not a moral difference between the two?

And before you say it’s a silly example, let me again cite Wisconsin v. Mitchell: “Mitchell argues that the Wisconsin penalty-enhancement statute is invalid because it punishes the defendant’s discriminatory motive, or reason, for acting. But motive plays the same role under the Wisconsin statute as it does under federal and state antidiscrimination laws, which we have previously upheld against constitutional challenge. Title VII, of the Civil Rights Act of 1964, for example, makes it unlawful for an employer to discriminate against an employee ‘because of such individual’s race, color, religion, sex, or national origin.’”

Also, in Wisconsin, the court also reminds one of the Haupt prosecution from 1947, where the treason charge required that Haupt’s actions aiding Germany were motivated by a love of Germany and not by a love of his SON! You can find that case here:

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=330&invol=631

I don’t think my definitions are “squishy” at all. By “intent” I just mean what the person intended to accomplish. By “motivation” or “motive” I just mean, as you put it, what causes the person to act. (Though “motive” can actually have connotations much closer to those of “intent”; I suspect this is part of the confusion, but it’s not on my end.) And I agree that intent is morally relevant, but deny that motivation is.

Moreover, note that the defense you just cited from Wisconsin v. Mitchell based entirely on appeals to real or foreseeable consequences, which I’ve granted can be reasonably considered in deciding on a penalty for a crime. But such factors fall entirely on the side of intent, and don’t have anything to do with motivation per se.

In the law, intent and motive have two distinct definitions. Intent means “did I mean to commit the act.” Motive is caused me to the crime. For example, if I purposefully take a bike that is not mine, knowing it is not mine, I have committed a crime, whether I sought to gain financially from the crime, send a message to silly bike owners who leave their bikes unlocked, or because I needed a bike to ride. Doesn’t impact that a crime was committed, may impact the way the law views the moral content of the crime.

In the case of hate crimes, you can think about it in terms of your definition of intent, too. What is sought in a hate crime, as opposed to another crime, is to commit a crime against someone BECAUSE of their belonging in a group. It’s no different than the sentencing enhancement for assaulting someone BECAUSE they’re a federal prosecutor or BECAUSE they’re going to testify in your trial.

As to the no greater moral content. Well, I think you’re wrong there too. Think about what it means to commit a crime against someone BECAUSE he’s gay, or because he’s black. Not because he’s got money, or because you want drugs, or because you want to commit a senseless act. BECAUSE OF that person’s status. Of course that has a different moral content than a crime to steal money. It sends a message to the community (regardless of whether that message was thought out by the perpetrator) – you are at risk simply by being in this community. You are at risk simply because you’re straight, or white. (Or because you’re a federal prosecutor or because you’re going to testify in a trial.)

Wisconsin v. Mitchell lists several ways in which hate crimes are potentially more damaging than a non-hate crime. “For example, according to the State and its amici, bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest…The State’s desire to redress these perceived harms provides an adequate explanation for its penalty-enhancement provision over and above mere disagreement with offenders’ beliefs or biases. As Blackstone said long ago, ‘it is but reasonable that, among crimes of different natures, those should be most severely punished which are the most destructive of the public safety and happiness.’”

Check out the facts of Wisconsin v. Mitchell, which you can find on wikipedia. It seems obvious that a non-racially-motivated crime would have had a totally different moral content than the crime described there.

It says you cannot commit a crime BECAUSE OF another person’s race, religion, sexual orientation or, now, homelessness.

And you … can commit that crime, otherwise?

Sorry but I really do find this foolish. The motivation (or “act of targeting”), in contrast to what is sought or intended, doesn’t affect in any morally relevant way the content of the criminal act itself, and as such doesn’t warrant a harsher penalty.

It says you cannot commit a crime BECAUSE OF another person’s race, religion, sexual orientation or, now, homelessness.

In other words, if I attack a gay man because I want his money it’s not a hate crime EVEN IF I hate him. If I target him because he’s gay, it’s a crime even if I DON’T hate him!

Hatred isn’t criminalized. The choice of victim is a crime.

I also have to disagree, however, that motivation is irrelevant to the law. If I intend to kill someone, it is murder, regardless of my motive (except if my motive is to prevent him from killing me). Also, many, perhaps most, criminal statutes look at the motive in determining sentencing or the degree of the crime. New York, for example, makes it First Degree Murder if you kill someone intentionally with the motive of preventing the victim’s testimony or revenge for prior testimony.

In Wisconsin v. Mitchell, (the hate crime case) the Supreme Court said pretty clearly that motive is an important factor that judges look at in determining sentencing. As an example, the Federal Sentencing Guidelines enhance the punishment if the crime was committed for financial gain and reduce the punishment if a normally financially motivated crime (copyright infringement) is committed for a non-financial motive.

For a much more complete discussion of the use of motive in the criminal law, see Carissa Byrne Hessick’s article, “Motive’s Role in Criminal Punishment,” which you can find on SSRN.

And if greater harm (an implied threat to the other members of the targeted group) is a foreseeable consequence of the action regardless of the specific intent, I see that as germane.

Maybe it is. But once again, the question of hateful motivation – which is the thing that hate crime laws single out – is entirely irrelevant here.

… you wouldn’t want the penalty for stealing an apple to be different depending on whether the grocer happened to be gay, unbeknownst to the criminal.

Well, I wouldn’t. But then again I wouldn’t want the penalty to be different depending on whether the criminal happened to hate the grocer because he was gay, either. My point was just that Will’s desideratum seemed better met by this alternative approach.

Not in my way of thinking. Because in both cases, as long as you’re not breaking the law, you’re not doing anything criminal.

(I’m not saying that laws stiffening the penalties for guns used in the commission of a crime justify hate crime laws… just that these are two examples of things that add to the severity of a sentence but are not illegal in and of themselves and therefore I don’t believe are “criminalized”.)

And if greater harm (an implied threat to the other members of the targeted group) is a foreseeable consequence of the action regardless of the specific intent, I see that as germane.

As I said in my comment on TLOG, I’m not actually sold on the practicality or necessity of hate crime laws at present. I do see some potential danger by going that route which makes me cautious about doing so. But I do think that, in theory, there are times and places where such laws could be necessary. And I’m not sold that this inherently falls under the rubric of criminalizing thought.

I don’t think it would make sense to ignore the motivation — you wouldn’t want the penalty for stealing an apple to be different depending on whether the grocer happened to be gay, unbeknownst to the criminal.

… “hate crime” generally refers to criminal acts which are seen to have been motivated by hatred of one or more of the listed conditions. (http://en.wikipedia.org/wiki/Hate_crime)

My point, which I’ve been repeating again and again, is that hateful motivation neither entails nor is entailed by the intent to do a greater (or lesser) harm than that intrinsic to the criminal behavior itself, and that as such the motivation (again, as opposed to the intent) can’t reasonably be punished. Hate crime laws simply do criminalize hate, in the sense that they make hatred itself – and not just the actions that it motivates, which once again are equivalent whether or not hatred is present – worthy of punishment when it gives rise to certain behaviors. And I think that’s a very dangerous move.