Capital Punishment (41): The “Healing” Argument and the “Danger” Argument

Capital punishment is usually defended on the basis of a theory of deterrence or retribution, but there are some other, less common arguments as well. There’s for example the argument that capital punishment is necessary for “closure” and “healing” of the victim’s surviving family and friends. Capital punishment is therefore viewed as a therapy. Apart from the doubts that capital punishment can serve this purpose – what does closure and healing mean and do they necessarily require an execution? – there’s a strong case that it shouldn’t be used for this purpose even if it can be: it would amount to crude instrumentalization of the criminal, even more than in the case of deterrence. Moreover, there’s a problem with cause and effect: if people are told that they need an execution in order to accomplish closure, then perhaps they’ll start to believe there’s no other way.

Another argument in favor of capital punishment is based on guesses about the harm that would result from failing to use this type of punishment. If we don’t satisfy the public’s blood lust – or call it “punitive emotions” if you want – the public will seek to satisfy it in ways that we wouldn’t like (e.g. lynching). However, there’s again a problem with cause and effect in this argument: the justice system does not merely reflect opinion about appropriate punishment, but also shapes it. Far from reducing blood lust, capital punishment may instead promote it. This is the so-called brutalization effect.

The basis of blood lust is moral outrage, and such outrage – contrary to blood lust – is often completely justified. And it should be recognized, but it can be in ways that don’t involve executions.

More on capital punishment is here.

Limiting Free Speech (29): Cross Burning

Cross burning is a typically, if not uniquely American type of “speech”. It’s the quintessential expression of hatred of African-Americans. The usual culprits are members of the Ku Klux Klan or KKK (and copycats). Historically, cross burning has been a signal of impending violence and terror. It was often a morbid prelude to lynchings or other acts of racist violence.

Nowadays, cross burnings are relatively rare, and intended to intimidate rather than signal the first step in actual violence. Nevertheless, given the history of cross burning, present-day occurrences understandably continue to instill a real sensation of fear and panic in the intended targets. Which is of course the intention.

The question is: should cross burning be considered as a form of speech that merits the protection of the freedom of speech (the First Amendment in the U.S.), or should it rather be an example of hate speech that can and should be made illegal?

If we focus on the U.S. for the moment, then the leading Supreme Court case is Virginia v Black. This case deals with 2 different criminal cases of people convicted for cross burning. In one case, an argument escalated and two defendants burned a cross in the front yard of their African-American neighbor. The other case involved a cross being burned in the garden of a member of the KKK during a private KKK “party”. The burning cross, however, could be seen by the general public.

Virgina v Black protects cross burning as a form of free speech, but also provides the possibility to make it illegal under certain circumstances (as we’ve seen many times before in this blog series on limiting freedom of speech, the circumstances are always important). And, according to Virgina v Black, the circumstances which would make it possible to restrict freedom of speech in the case of cross burning are not limited to those which can normally restrict freedom of speech in other cases. Speech acts that produce an imminent danger of physical violence, acts that result in reckless endangerment (in this case the risk that the act evolves into an arson attack), or speech acts that lead to trespassing are not protected by the First Amendment. Physical violence, arson and trespassing are illegal, and the fact that they are combined with a speech act doesn’t make them legal. If a speech act is combined with such illegal acts, or is likely to lead to such acts, then the speech acts are not protected by the right to free speech.

According to Virgina v Black, the circumstances which can make cross burning illegal go beyond this and include the intent of the speaker to intimidate and terrorize specific and identifiable persons, even if these persons are not in immediate physical danger. And cross burnings today usually doesn’t result in physical danger.

Now, you could say that cross burning is by definition intended to intimidate, but that’s not the case. Not all cross burnings are intended to intimidate – take the example of the KKK party cited above – and not all cross burnings are equally intimidating. It depends on the circumstances in which the cross burning takes place, and on the fact if it is clearly targeted against certain individuals. If the cross burning takes place close to the homes of African-Americans, and are part of a long chain of intimidation and racist incidents, then they are more intimidating than in other cases. And more intimidating means a higher risk that the rights of the targets will be violated. The African-Americans may feel forced to move, which violates their right to freely choose their residence. They may feel that it is necessary to keep their children away from school, which is a violation of their right to education, etc. In such cases, the right to free speech of the KKK members should obviously be restricted for the benefit of the rights of their targets. But in other cases, they may be allowed to wallow in their silly hobby.

I think Virginia v Black strikes the right balance. For another Supreme Court case on cross burning, see here.

Hate (3): Is Hate Crime Caused by Poverty and Lack of Education?

This paper claims that hate crime is independent of economic deprivation and lack of education. Hate crimes are typically acts of violence against persons or their property committed for no other reason than these persons’ membership of a certain religion, race or ethnic or other group. Those who commit hate crimes can act on an individual basis, but are often members of so-called hate groups and may act together with other members.

The paper cites a number of data that indicate that poverty and ignorance aren’t the main drivers of hate crime. Lynchings, for example, were not correlated to economic growth. They didn’t rise during the Great Depression. The existence of hate groups such as the Ku Klux Klan is unrelated to economic indicators such as unemployment. We even see that there is a higher probability that a hate group is located in an area with a relatively large share of the population with higher education. The wave of violence against foreigners in Germany in the 1990s also didn’t show a relationship between unemployment rates per county, and the number of incidents in a county. The same for levels of education and wages.

The Causes of Human Rights Violations (10): Prejudice According to Allport’s Scale

People who are aware of, and ashamed of, their prejudices are well on the road to eliminating them. Gordon Allport

Gordon Allport, a psychologist, created Allport’s Scale in 1954. It’s a measure of the manifestation of prejudice in a society. The scale contains 5 stages of prejudice, ranked by the increasing harm they produce.

Stage 1: antilocution

Antilocution (“speaking against”) means making jokes about another group,’a0but also’a0the expression of hateful opinions. In the former case it’s also called derogatory speech, and in the latter case it’s called hate speech. Both cases can be examples of prejudice, prejudice in the sense of an opinion reflecting negative stereotypes and negative images based on preconceived judgments rather than facts.

Antilocution is often believed to be harmless (“sticks and stones will break your bones but names will never hurt you”), but it can harm the self-esteem of the people of the targeted group, and it can clear the way for more harmful forms of prejudice. The line between violent words and violent acts is often very thin. The self-image of a group can be hurt, which can sometimes become a self-fulfilling prophecy.

Stage 2: avoidance

People in a group are actively avoided by members of another group. Harm is done through isolation and by preparing the way for more harmful acts. Xenophobia, or the fear of foreigners or strangers or of that which is foreign or strange, results in exclusion.

Stage 3: discrimination

A group is discriminated against by denying them equal access to opportunities, goods and services. Discrimination is intended to harm a group by preventing it from achieving goals, getting education or jobs, etc.

Stage 3b (added later): subtle aggression

This is an assumption of hierarchy, particularly hierarchy of power, an assumption that somebody has less knowledge because of their age, gender or race or other characteristics and that these people can be excluded in some way.

Stage 4: physical attack

This has become known as hate crime. Groups are the victim of vandalism, the burning of property or violent attacks on someone’s physical integrity such as lynchings, pogroms etc.

Stage 5: extermination

The extermination of a group through genocide, ethnic cleansing etc.