The term “hate crime” entered the mainstream in the United States during the 1980s, when advocates began to track incidents of bias-motivated violence. Since then, hate crimes have continued to garner significant attention. Advocates and legislators have traditionally justified hate crime law under the “expressive theory,” the idea that the purpose of such laws is to condemn prejudice and express messages of tolerance and equality. In this Comment, I offer a distinct justification for hate crime legislation. Specifically, I argue that, when a perpetrator targets a victim because of perceived immutable characteristics, the hate crime offender denies the victim’s agency and, ultimately, the victim’s personhood. This additional wrong—absent in crimes not motivated by bias—necessitates the heightened criminal penalties that current hate crime laws provide. First, this Comment provides a background on the development of hate crime legislation and the difficulties involved in reporting hate crimes. In Part I, I explain the importance of proportionality in assessing criminal culpability and determining appropriate punishments. In Part II, I explain how existing hate crime laws operate. In Part III, I articulate how a hate crime offender denies the agency, and ultimately the personhood, of the victim. In Part IV, I explain why proportionality in punishment requires heightened penalties for hate crime offenders because of their denial of the victim’s agency, and ultimately the denial of the victim’s personhood. Finally, in Part V, I explain why this distinct justification for hate crime legislation is relevant; in short, it recognizes bias-motivated offenses that a purely expressive approach often overlooks.
