By In Ideas, NDPR Discussion Forum, Philosophy of Law Comments (14)

NDPR Forum: Kit Wellman’s “Rights Forfeiture and Punishment,” with new post by Kit Wellman

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.

14 Responses to NDPR Forum: Kit Wellman’s “Rights Forfeiture and Punishment,” with new post by Kit Wellman

  1. Hello Kit,

    Thanks for the excellent book, and the interesting post.

    Here is a quick suggestion on hate crimes.

    1) Suppose that there is some bad that needs to be distributed amongst a population. It would be wrong to distribute it to black people on racist grounds, and doing so would clearly violate the rights of those black people to whom the bad is distributed. Now compare:

    2) I make it the case that someone will be harmed and distribute it impartially

    3) I make it the case that someone will be harmed, and then distribute that harm to black people on racist grounds.

    2) violates the right of the person harmed. 3) is like the conjunction of the rights violations in 1) and 2).

    Those who commit hate crimes are relevantly similar to my act in 3). Thus, those who commit hate crimes commit a more serious rights violation than those who do not target anyone in particular, and they are liable to more punishment as a result.

    Some might deny that hate crimes are like my conduct in 3). They are different in this way: in 3) I first make it inevitable that someone will be harmed, and then distribute the harm on racist grounds, whereas in hate crimes the wrongdoer wouldn’t harm anyone were he not to harm the black person. But although there is this difference, it is hard to see why the rights violation in hate crimes is less stringent than that in 3) on this basis.

  2. Vincent Chiao says:

    Hi Kit,
    as Victor said, it’s a fantastic book and thanks for kicking off the discussion. Two thoughts about culpability vs. deplorability. First, the issue you raise would seem to be of quite general significance in sentencing, and not limited to the particular case of hate crimes. There are frequently many different ways in which a particular right can be violated, and those ways often differ along the spectrum of deplorability. Perhaps A smashes B’s window to express contempt, or out of a misguided sense of duty, or because she was understandably, if not justifiably, angry, or as part of a long deliberated and calculated plan. These factors would, I take it, weigh on how deplorable A’s conduct is, even though from the point of view of culpability, they are all attacks on one and the same right.

    Or consider a criminal record. If this is the first time A has acted in this way, or if A has a long track record of acting out in just this way, also seems to matter to a judgment as to how deplorable the conduct is, even though again does not seem to affect culpability.

    So the force of the suggestion that deplorability cannot weigh on punishment would seem to have some pretty significant implications, beyond just the case of hate crimes.

    Second, I’m curious what you think of the following thought:

    1) You forfeit your right not to be punished when you culpably violate another’s right, and the right you forfeit is proportionate (whatever that means) to the right you violate.

    2) However, proportionality underdetermines punishment in the sense that a punishment of x severity and a punishment of (x+y) severity would both be proportionate for a given rights violation (for some finite value of y; the size of y represents how granular one takes proportionality to be.)

    3) Hence, in relying on relative deplorability in deciding whether to punish to x or (x+y) extent, we act permissibly. For we punish proportionately in either case, i.e. we punish within the scope of the forfeited right.

    Would this line of thought be sufficient to motivate the claim that culpability is, as you put it, necessary to trigger forfeiture, but that once present, deplorability is relevant to magnitude of punishment?

  3. Massimo says:

    Thanks Kit! I’ve enjoyed the book and the post. Here’s another suggestion on how your view could accommodate the intuition that it is permissible to punish hate crimes more severely:

    Jane forfeits her right against punishment X in virtue of the fact that she violates her colleague’s property rights.

    Like Jane, Jennifer forfeits her right against punishment X in virtue of the fact that she violates Black’s property rights. But unlike Jane, she also forfeits her right against punishment Y because in addition to violating Black’s property rights, she also violates Black’s right not to be discriminated against on the basis of race. If there is a right against being discriminated against on this basis, then that right explains why Jennifer is more culpable than Jane. Jennifer violates two rights, whereas Jane only violates one.

    Several legal documents acknowledge the existence of this right, but they are pretty bad at defining it. The right is often understood as protecting vulnerable groups or groups that have been historically oppressed. If this understanding is plausible (on the face of it, it seems plausible to me), then this would explain why Jennifer is more culpable than Jane: the group of Blacks has been historically oppressed, the group of people who have been promoted hasn’t. So, this understanding of the right against discrimination explains why it is only when crimes are being motivated by a bias against specific groups that the extra culpability is triggered. Not every differential treatment that targets the members of a group involves rights violations.

    But if treating someone unfavourably on the basis of race is enough to violate that person’s right against discrimination, shouldn’t we conclude that the white supremacist who refuses to invite Black to her dinner party is not only deplorable but also culpable? Whether we should accept this implication depends on how we understand the right against discrimination. If the idea is that every differential treatment on the basis of race, gender etc. is wrong, then the implication follows. But there are other interpretations of the right available. We might think that the point of the right is not to rule out every differential treatment on the basis of race, gender etc. (For example, some form of inverse discrimination might well be morally right.) Rather the point is that when a right violation occurs, if that violation is motivated by a bias against the members of a relevant group, a further right is being violated. No one has a right to be invited to dinner parties, which is why the host does not violate Black’s right not to be discriminated against by not inviting him. However, people do have property rights and a right to physical integrity, which explains why Black’s right against being discriminated is violated when his car is being smashed or when he’s being assaulted. This interpretation of the right against being discriminated seems apt in the context of hate crimes, as the point of hate crimes seems to be to identify certain rights violations as particularly egregious, rather than to address every instance of differential treatment on the basis of race, gender etc.

  4. I like Kit’s distinction between deplorability and culpability for these matters, and it reflects a similar distinction in the moral responsibility literature (between attributability and accountability). Insofar as I understand you, though, Massimo, I’m wondering whether Kit can reply that he has in mind cases of hate crimes in which there’s allegedly a distinctly deplorable *motivation* on the part of the hate criminal, roughly, a hatred of, in this case, Black people while carrying out one particular crime. Your case of an additional right that’s violated, namely, the right against discrimination, does not necessarily require such a motivation, as one might discriminate with non-hateful mens rea.

    Here’s a way in which I’ve been taking Kit’s point (and this may be wildly off as an interpretation of Kit, in which case just call it the view I like): Culpability goes to agents who violate rights with appropriate mens rea, where that simply refers to intention (or foresight, or reasonably-should-have-knowns). That is, they knowingly, say, performed the relevant actus reus. But their *motivation* for forming or executing that intention is irrelevant, at least as far as culpability is concerned. (That is what Scanlon calls the “meaning” of their action.) Hate crimes, as Kit is thinking of them, are about motivation for that particular intention. And while motivation is absolutely relevant for deplorability, and questions of character generally, it’s irrelevant to rights violation.

    Jennifer may thus warrant additional rights forfeiture, but it’s in virtue of her having violated a different right, with a distinct actus reus, and it’s not in virtue of her having had a racist motive in performing *the original rights violation*, which is what I take Kit to be talking about in talking about hate crimes.

    But again, I may have him all wrong, in which case, please ignore me.

  5. Kit Wellman says:

    Thanks for your really interesting post, Victor. I’m honestly not sure whether I agree with your first premise: “Suppose that there is some bad that needs to be distributed amongst a population. It would be wrong to distribute it to black people on racist grounds, and doing so would clearly violate the rights of those black people to whom the bad is distributed.” (It might help me if you could offer some examples of a bad that needs to be distributed.) Here’s a potential example that might clarify whether you and I disagree:

    Suppose that Wendy, a white supremacist, is lounging beside a swimming pool when a black infant falls in the pool. I believe that this infant has a right to be saved, and Wendy would be culpable if she refused to perform this easy rescue. But now imagine a second case in which Wendy is confronted by two drowning infants (one white and the other black), and Wendy is capable of saving at most one of them. If Wendy deliberately chose to save the white infant because she considers white infants to be more valuable than black infants, then I would condemn Wendy as utterly deplorable, but not culpable. I know that many people believe that two drowning infants have a right to have their cases considered impartially, but I deny this. On my view, if only one of two drowning infants can be saved, the prospective rescuer has discretion as to which infant she saves. Thus, if Wendy exercises this discretion in a racist manner, she is deplorable, but she does not violate anyone’s rights, and thus is not culpable.

    In the end, then, I’m inclined to say that Wendy may permissibly be punished if she failed to save a solitary infant, but she may not permissibly be punished if she chooses among the drowning infants on racist grounds. So if you would consider Wendy’s decision of whom to save to be an example of distributing a bad on racist grounds, then I think I would be inclined to deny your first premise.

  6. Hi Kit

    Thanks for the reply

    I took the first premise to be obviously true, and I am still inclined to think that it is. In a racist society, a permission to determine whom to help on racist grounds will lead to black people being permissibly seriously disadvantaged over the course of their lives because of the deplorable attitudes that people have about them. I don’t see why we should permit people to act on these attitudes in a way that systematically disadvantages black people in this way; it is bad enough that they are permitted to have these attitudes (and, by the way, I don’t think they are, though this is more controversial). Perhaps there are some exceptions to the principle, in the case of close interpersonal relationships or dinner parties, though I am inclined to think not – I think that it is wrong to exclude people from dinner because of their race. But even if this is an exception, isn’t it best explained by the special reason we have to determine our close interpersonal relationships for ourselves, a consideration that doesn’t apply in the rescue case you describe?

    But suppose that you are right about your rescue case. Your view seems even less plausible when it comes to harming cases. Suppose that I am driving a school bus that goes out of control, and is about to go over a cliff. I can prevent this only by turning either left or right. Either way I will kill one pedestrian. I see that the pedestrian on my left is black, and I hate black people.

    Even if it is permissible to act on racist motives in determining whom to rescue, it does not seem at all plausible that I am permitted to determine whom to harm on the basis of racist motives. And that would be enough for my argument to go through. But perhaps you hold the view that I find implausible in this case too!

  7. Ben Bryan says:

    Here’s another way of looking at it: If discrimination affects the culpability of wrongdoer, it can do so in one of two ways: by adding new culpability or by multiplying existing culpability. On the rights forfeiture view, if discrimination is going to lead to a greater culpability, it seems like it will have to violate some distinct right, resulting in a rights forfeiture beyond the forfeiture from the crime with which the discrimination occurs. It’s not clear how a rights forfeiture theorist could account for discrimination exacerbating culpability for other wrongs.

    So it seems like that, on a rights forfeiture view, discrimination would add to our culpability rather than multiplying it. There are two problems with the idea that discrimination adds to culpability, though. The first problem has already been noted (and Massimo has suggested a solution): if discrimination always violates rights, then many small acts of discrimination that it seems worrisome to treat as hate crimes turn out to be hate crimes.

    There is, however, a further problem that persists even if we assume that discrimination is only a rights violation when it accompanies some other rights violation: it seems unlikely that all discriminatory rights violations add the same culpability. Imagine, for instance, the difference between a relatively minor assault and a murder. It seems odd to think that these being hate crimes would add the same amount to culpability in each case. (Should we add the some number of years to the sentence of someone who punches someone in the face in a bar because of their race that we would to someone who kills someone because of their race?) If there is a right against being discriminated against during the violation of other rights, then that right is violated just the same in both a murder and a fistfight.

    One might want to say that that discrimination doesn’t add some fixed amount to culpability, but exacerbates culpability of other wrongs. But can we account for that in terms of rights forfeiture? It seems like that if there is a right against discrimination being violated in each case, it’s got to be the same violation resulting in the same forfeiture. One could say instead that there is a right against being discriminated against in killing that’s different than the right to be discriminated against in punching in the face, but that starts to seem ad hoc.

  8. Kit Wellman says:

    Thanks so much for your questions and suggestions, Vincent. First I would like to clarify that in insisting that a punishment must not be disproportionate, I do not mean to claim that proportionality must be a function solely of what the right the wrongdoer violates; in my view, proportionality of punishment is determined by both the actus reus and the mens rea.

    Second, I must confess that I am genuinely stumped by your question regarding recidivism. It has always seemed to me permissible to punish the recidivist more severely than the first-time offender, but I now realize (thanks to your question) that it’s not obvious that the recidivist is necessarily more culpable than someone who commits the crime for the first time. (I do not allege that the recidivist is NOT more culpable—I am genuinely unsure about this.) I should also add that it strikes me as more counter-intuitive to deny that recidivists may be punished more severely than to deny that hate criminals may be given an enhanced punishment, so I want to think more about this question.

    Third and finally, I have no objection to your suggestion that deplorability be considered an aggravating factor which explains why we might want to punish deplorable wrongdoers at the upper end of what is proportionate, but notice that this position is compatible with my contention that deplorability does nothing to determine what right is forfeited. If the upper bounds of proportionality are determined solely by culpability (where culpability is distinguished sharply from deplorability), then deplorability still does nothing to change what right has been forfeited and thus does not make permissible a punishment that would otherwise have been impermissibly disproportionate. If so, then this suggestion would not show how deplorability (in the presence of culpability) can affect proportionality.

  9. Vincent Chiao says:

    Hi Kit, I agree that treating deplorability as an aggravator wouldn’t show how deplorability can affect proportionality; but wouldn’t it at least show why it could be permissible to enhance the punishment for people who act out of hateful motives relative to those who don’t?

  10. Kit Wellman says:

    Hi Massimo and Dave:

    I know precious little about the literature on moral responsibility, but Dave seems to have characterized my view better than I could have. I don’t know the literature on discrimination as well as I should either, but my untutored inclination is to say that discrimination may or may not be permissible, depending upon the context. Jennifer the white supremacist has no duty to include blacks in her dinner party, but it seems plausible to insist that if Jennifer owns a public restaurant in the United States, she has a legal and a moral duty not to exclude black customers. In other words, blacks have no right to be invited to dinner parties in Jennifer’s home, but they do have a right to be served in Jennifer’s restaurant. So Jennifer would be deplorable (but not culpable) if she refused to invite blacks into her home, whereas she would be culpable if she refused service to blacks in her restaurant. And finally, if one could define hate crimes in terms of discrimination, then Massimo may be right that a forfeiture theorist of my stripe might be able to explain why hate criminals forfeit their rights against a stiffer punishment. I don’t know whether this account of hate crimes would work, but I think Dave is correct that it would be a departure from my initial understanding of a hate crime, which focuses on the criminal’s being motivated by an animus toward members of the group she targets.

  11. In response to Vincent’s suggestion, you seem inclined to the view that the racist motives of wrongdoers do not affect the proportionality threshold, but that they may provide reasons to give stiffer sentences to wrongdoers below that threshold.

    But I guess the sharper question for you is whether it would be wrong for racist judges to give more lenient sentences to racists below the threshold on racist grounds. Suppose that there is a range of sentences that it is permissible to give to a person below the maximum set by rights-forfeiture. I take it that there is often indeterminacy of this kind. Now consider this. A racist judge confronted with a white supremicist defendant who committed an assault on a black person on racist grounds would be permitted to give the defendant some sentence between 5 and 6 years, let’s say. Suppose that the judge gives the defendant 5 years rather than 6 on the grounds that he hates black people, and so is inclined to be more sympathetic to the white supremicist. And he publicly declares that he has done this. This seems obviously wrong, but I’m not sure how to explain it on your view.

  12. Massimo Renzo says:

    Thank you Dave, Kit and Ben.

    Yes, my suggestion would involve abandoning the view according to which hate crimes are crimes motivated by an animus toward the members of the targeted group. If we don’t want to give up either of Kit’s premises –a) only culpability grounds liability to punishment and b) the notion of culpability is to be cashed out in terms of right violations– then we need to give up either the idea that hate crimes may be punished more severely or the idea that hate crimes are best understood as crimes motivated by an animus toward the targeted group. I haven’t thought enough about this, but my inclination would probably to give up the latter.

    Consider the following two cases:

    Adam assaults a black victim not because he is motivated by an animus toward blacks, but because he is seeking the approval of his racist friends.

    Ben rapes a gay victim not because he is motivated by an animus toward gay people, but because he knows the homophobe society they live in will not protect the rights of gay people.

    While I don’t have a settled view, I would probably want these to be treated as hate crimes.

    My understanding is that the law appeals both to the discrimination model and to the animus model.

    Quickly on Ben’s observation: I take it that Kit is not committed to the view that all violations of right X attract the same kind of punishment. For example, punching someone and cutting off someone’s legs are both violations of the right to bodily integrity, but I don’t think Kit will want to say that they ought to be punished in the same way. Presumably cutting off someone’s legs should be punished more severely. If so, whatever explains this (perhaps the seriousness of the harm associated with the right violation?) might also explain why not all violations of the rights not to be discriminated against should be punished in the same way.

  13. Ben Bryan says:

    Thanks for the reply, Massimo.

    It’s certainly true that there’s no reason to think that all violations of the same right produce the same culpability. And it does seem natural to say that something is different about the violation of the right against discrimination in the case of murder than in a rather minor crime, but I’m not sure what that difference is. Harm, for example, doesn’t seem to be the difference. Violating the right against discrimination may not, on its own, harm the victim at all. A victim of a racist murder who doesn’t know it’s got anything to do with race, for instance, doesn’t seem to be harmed worse by the discriminatory murder than they would by a murder that was identical except for the racism.

    It seems like the severity of the violation of the right of discrimination is connected in some way to the severity of the other rights violation that it is connected to. Perhaps one might say this: the right being violated is a right against discrimination in the violation of other rights, and the severity of a violation of this right against discrimination depends on the severity of the other rights violation with which the violation of the rights against discrimination is connected. But this view seems awfully ad hoc. Imagine someone asking these questions:
    “What does the hatefulness of a crime add to the crime itself that makes it more serious? And why does it adds more to more serious crimes?” If we give the answer I just suggested, it seems like we’re answering “Because it is hateful.” and “Because the crime it’s connected with is more serious.” Neither of those seems like an answer. So it seems we need some independent explanation of what makes a violation of the right to discrimination more serious in some cases than others. (Is there some other morally relevant element of the discrimination that would be correlated with the severity of the other wrong the discrimination is connected to?) I’m not sure yet what that would be.

  14. Kit Wellman says:

    Given how little I have read and thought about discrimination, I reluctant to take any firm positions here, but let me try to say a few things in response to the very interesting discussion that is unfolding. First (and to bring things back to punishment a bit), I don’t know precisely what rights there are against discrimination, but I presume that (as Victor has been pushing me to concede) there must be some types of rights against discrimination, and an enlightened forfeiture theorist should happily embrace the conclusion that anyone who violates those rights may permissibly be punished. And so, following Massimo, perhaps a forfeiture theorist who wants to defend stiffer penalties for hate criminals should focus on criminals who commit crimes AND wrongly discriminate.

    Second (and against my better judgment), let me say a bit about Victor’s example of a racist bus driver who must turn either right or left in order to avoid catastrophe, and chooses to turn left rather than right because there is a black person to the left and a white person on the right. I share Victor’s intuition that this should be an easy case for me, but I must confess that I’m torn because of three nearby cases. First, I’m not at all sure what to say about a driver who chooses to turn left because the colleague who got the promotion over her is on the left. Second, I’m not sure what to say about a bus driver who chooses to turn left because a hazel-eyed person is on the left. And third, I’m not sure what to say about a racist driver who turns left because there is a black person on the left if the driver and victim live in a society where blacks are no more victims of discrimination than hazel-eyed folks are in contemporary America.

    I think that these three nearby cases are more difficult for me, because what really bothers me about discrimination is the cumulative impact it has on its victims. As Victor put it in an earlier post, “In a racist society, a permission to determine whom to help on racist grounds will lead to black people being permissibly seriously disadvantaged over the course of their lives because of the deplorable attitudes that people have about them. I don’t see why we should permit people to act on these attitudes in a way that systematically disadvantages black people in this way.” (And this connects with Massimo’s observation that the laws often single out historically oppressed groups for special protection.) Here (at long last!) Victor and I might be in agreement. I start with a presumption in favor of allowing folks to determine their associates (including whom they want to help)—even when I think folks are choosing their associates on deplorable grounds. But that presumption is outweighed, it seems to me, when the cumulative effects of this discretion systematically disadvantage some of us. Thus, while I’m far from clear how the details of the story would go, I’m at least tempted to say that the anti-hazel-eyed bus driver who turns to the left in order kill a hazel-eyed victim acts deplorably but not culpably, whereas the white supremacist bus driver IN A RACIST SOCIETY who turns left in order to kill a black victim is culpable and may be punished.

    Finally, how about Victor’s white supremacist judge who issues lenient sentences to racist hate criminals? This does seem like an easy case to me. In addition to my concerns about blacks being systematically disadvantaged by pervasive racism, I take it that judges should not allow partialities of any kind to influence their sentencing. (Judges who like blue eyes should not give lighter sentences to blue-eyed convicts, for instance.)

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