Simons, Kenneth W., Hate (or Bias) Crime Laws (October 18, 2022). UC Irvine School of Law Research Paper No. 38, 2022, Palgrave Handbook on Applied Ethics and the Criminal Law, Larry Alexander, Kimberly Kessler Ferzan, editors, 2019., Available at SSRN: https://ssrn.com/abstract=4251871
“This chapter reaches the following conclusions about laws that enhance punishment for criminal conduct prompted by group hatred or bias:
- Hatred (as opposed to bias) should not be either a necessary or a sufficient condition for enhanced punishment.
- Enhanced punishment is justifiable when bias crimes display greater culpability, express disrespect for the victim’s group, or cause either greater psychic harm to the victim or group-specific outrage in the victim’s community.
- Properly designed bias crime laws do not improperly punish for thoughts or character.
- Such laws are more defensible if they require that the actor’s primary motive was animus toward the disfavored group.
- There is no principled reason to require that such laws merely enhance punishment for an already existing parallel crime.
- Increasing punishment significantly because of bias may violate principles of proportionality.”