Welcome to our NDPR Forum on Kit Wellman’s “Rights Forfeiture and Punishment,” which was recently reviewed by David Dolinko in NDPR. Kit has agreed to kick off this forum by contributing a new post on one of the issues raised in his book, namely, on whether there is or should be, on the rights forfeiture view, additional culpability for hate crimes. Please join in on the discussion. I herewith give you Kit:
I am extremely grateful to David Shoemaker and his compatriots at Pea Soup for hosting a forum on Rights Forfeiture and Punishment. I would display deplorable ingratitude if I did not begin by thanking David Dolinko for his very careful review in NDPR. As things were explained to me, this initial post is my opportunity to respond to Professor Dolinko’s review, but the truth is that I have no qualms with his exceptionally thoughtful summary and analysis of the book. So, rather than use this space to “set the record straight,” I will merely say a bit about the distinction I draw (on page 8) between being culpable versus being deplorable, and why this distinction now leads me to question my earlier views on the permissibility of stiffer penalties for hate crimes.
On my view, a wrongdoer forfeits her right against punishment when she culpably violates (or attempts to violate) another party’s moral right. And while there are a variety of ways to be morally lacking, I reserve “culpability” for rights violations. Thus, I would characterize a white supremacist who refuses to invite non-whites to her dinner parties as deplorable but not culpable. In other words, this white supremacist’s racism is unquestionably a vice, but (assuming, as I do, that no one has a right to be invited to any given dinner party) I deny that she has violated any rights. So while the white supremacist has acted deplorably, she has not, on my view, forfeited any rights.
Switching topics for a bit, as Dolinko acknowledges in his review, rather than insist that wrongdoers forfeit the same rights they violate, I allege only that culpable wrongdoers forfeit their rights against a proportionate punishment. Critics might regret that I am not more precise than this, since my inability to recommend specific punishments provides much less guidance than we might like. Merely knowing that a wrongdoer may not be punished disproportionately does not determine whether a murderer has forfeited her right to life, for instance, and so it tells us nothing about whether it is ever permissible to institute the death penalty. But even if we cannot specify precisely which punishment “fits” any given crime, the requirement of proportionality does open the door to comparative judgments about crimes, and thus makes it possible to determine whether so-called “hate” criminals are morally liable to more severe punishments than wrongdoers who commit the analogous generic crimes.
In an earlier essay, I offered two arguments in defense of the conclusion that it is permissible to enhance the punishments of hate criminals, where hate criminals are distinguished by being motivated at least in part by an animus toward members of the group to which the victim belongs. One consideration (which I have since come to question but will not review here) focuses on the actus reus: the idea is that hate crimes are worse because they create vicarious victims. The second argument features the mens rea: the idea is that the mental state of hate criminals is distinctive and distinctively bad, and thus merits additional punishment. The pivotal claim in this argument is that, for any given generic criminal there is a corresponding hate criminal whom we would judge to be worse. If Jane forfeits her right against punishment X when she smashes the car window of a colleague whom she dislikes because the colleague won a promotion for which the two were competing, then Jennifer forfeits her right against punishment X + Y when she smashes the car window of a colleague whom she dislikes because the latter is Black. I thus concluded that hate criminals forfeit their rights against stiffer punishments than their generic criminal counterparts, because their mental states are worse. In light of my distinction between culpability and deplorability, however, I now question this line of argument.
I still believe that hate criminals are distinctive and distinctively bad, but I am no longer sure that they are worse along the dimension relevant for rights forfeiture. In particular, if I insist both that (1) a white supremacist who refuses to invite anyone who is Black into her home is deplorable but not culpable and that (2) those who are not culpable forfeit no rights, then the mere fact that hate criminals are morally worse does not necessarily imply that they have forfeited their rights against a stiffer punishment. Because each culpably violated her colleague’s right when she smashed her colleague’s window, Jane and Jennifer have both forfeited their rights against a proportionate punishment. I remain convinced that Jennifer is morally worse than Jane because she was motivated at least in part by an animus against people who are Black, but Jennifer can be morally lacking in a way that Jane is not without being more culpable. Perhaps Jane and Jennifer are equally culpable (in so far as both intentionally violated the same right of a colleague), but Jennifer is also deplorable in a way that Jane is not. If this is the correct way to characterize the ways in which Jane and Jennifer are morally lacking, then it may be that (despite being morally worse) Jennifer is not morally vulnerable to a more severe punishment. After all, if even extreme deplorability in the absence of culpability does not render one morally liable to punishment, then it seems natural to conclude that adding deplorability to culpability would not increase one’s liability to punishment.
Given the apparent implications for hate criminals, rights forfeiture theorists may therefore be inclined to deny the distinction I draw between culpability and deplorability. There are other potential ways, however, for a forfeiture theorist to defend the claim that hate criminals cannot object to being punished more strenuously. The most obvious strategy would be to argue that, even if white supremacists who refuse to invite Blacks into their home are not culpable, wrongdoers who are motivated to violate the rights of their victims at least in part because of an animus against members of the group to whom their victim belongs are more culpable than typical wrongdoers. Or, one might contend that while deplorability in the absence of culpability is not sufficient for rights forfeiture, adding deplorability to culpability increases a wrongdoer’s moral liability to punishment. According to this second line of argument, culpability is necessary to trigger forfeiture, but once culpability is present, deplorability is relevant to the magnitude of the forfeiture. I cannot rule out the promise of these approaches, but I do not currently see how to plausibly advance either claim, so, for the time being at least, I am inclined to retract my earlier defense of stiffer penalties for hate criminals.2