Ari Ezra Waldman | Dharun Ravi | Law - Gay, LGBT | News | Tyler Clementi

Dharun Ravi and the Debate Over the (In)Justice of Hate Crime Laws

BY ARI EZRA WALDMAN

Dharun Ravi, the former Rutgers student who spied on Tyler Clementi and contributed to Tyler's death, received a sentence of 30 days in jail and 3 years of probation. He is to perform 300 hours of community service, undergo counseling, and pay a $10,000 fine that will go to an organization providing assistance to victims of bias crimes. This sentence is significantly more lenient than the decade in jail Mr. Ravi could have received.

Dharun_Ravi_AP120521111613_480x360I agree with Nathaniel Frank over at the Huffington Post, who said that Mr. Ravi's behavior was "inexcusable." His actions surely contributed to Clementi's death" and "were malicious, irresponsible, dehumanizing, and criminal." And yet, like Mr. Frank, I was almost "relieved" to hear that Mr. Ravi would not face the maximum sentence. I would have been somewhat more satisfied with a few-month sentence rather than a one-month sentence, but that is not the point. In a previous, somewhat controversial prior column on the Tyler tragedy, I argued what Mr. Frank would argue later: That we have to be careful not to focus our search for justice solely on one individual where greater social forces are to blame and then prematurely congratulate ourselves and wash our hands of the responsibility to address those social problems once Mr. Ravi's trial is over.

Here's part of Mr. Frank's take, worded much more artfully than mine:

While Ravi must take responsibility for his actions, we are all accountable, not just him. Anti-gay sentiment lies deep within many, perhaps most, of us, as does an atavistic urge to denigrate and exclude out-group members. The fact that this may be our hardwiring -- evolved from a time when we lived in tribes of 50 to 100 closely related individuals -- in no way justifies indulging those impulses, but it does remind us that we have to fight against them rather than pretending they don't exist and acting like those who exhibit our darker side are outliers. And punishing one dumb kid for failing to rein in his dark side primarily serves to make us feel better when it shouldn't, to shift the burden of responsibility to anyone but ourselves. How did the 20-year-old Ravi grow up in a world where he thought any of this was OK and might even win him praise?

While Mr. Frank's column touches on the sociological forces that created the circumstances for Mr. Ravi to think that his disgusting behavior was permissible or normal, he mostly focuses on what it means to seek "justice" for Tyler, his family, and yes, even Mr. Ravi and his family. I would like to touch on that topic today.

The Tyler Clementi case, Mr. Ravi's trial, and the hate crime enhancements that could have sent Mr. Ravi to prison for a long time epitomize the tension between an emotional desire for retributive punishment -- the idea that bad acts deserve punishment for no other reason than the categorical view that bad acts deserve social condemnation -- and a smarter, case-by-case appreciation for the palliative or deterrent effect of the law. I argue that hate crime enhancements are almost exclusively retributive and their across the board application risks turning the criminal law into a tool of vengeance.

CONTINUED, AFTER THE JUMP...

The retributive theory of punishment posits that punishment is justified on the grounds that wrongdoing merits punishment; that is, the criminal gets punished because a criminal deserves to get punished. There is no utilitarian or forward-looking benefit to punishment in this model because punishment is valued without reference to the contingent benefits that the public might (or might not) enjoy. Punishment, then, is Kantian -- it is justified in and of itself, independent of any benefit that may accrue to a society.

A necessary corollary to any retributive penal model is that if a criminal should be punished because he deserves it then he deserves to be punished in accordance with his desert, no more and no less. This is the theory of proportionality. Proportionalists argue that the severity of punishment should be commensurate with the seriousness of the wrong because, as Professor Andrew von Hirsch has argued, the purpose of punishment is to express a society’s distaste for certain conduct and the amount of punishment reflects the magnitude of that distaste. Any disparity between the punishment and society's view of how "bad" the criminal act was would be illogical.

The retributive doctrine of proportionality, then, animates the public's zeal for criminal penalties in severe bullying cases and hate crime cases. Tyler died and we want justice! But, we should really think more about what "justice" means in this case. Does justice mean 10 years in jail for a stupid kid who never apologized? Does justice mean deportation? Will any form of justice fill the void left by Tyler's tragic death?

In some ways, an emotional connection to justice is quite logical. As Professor Samuel Pillsbury has noted, both critics and admirers of the retributivist model agree that much of the moral weight behind the criminal law comes from our emotional reactions to wrongdoing. Such emotion is a fundamental trait of humanity and can explain why we want criminal laws in the first place. Our reactive emotions -- the emotions inspired by wrongful acts -- are what inspired us to create criminal laws to deal with wrongful acts in the first place. Therefore, the emotional or intuitive desire to hold Mr. Ravi responsible for Tyler's death arguably reflects a foundational feature of the criminal law.

A problem arises when this emotional desire for retribution is the only justification for a law. Consider the debates surrounding tough anti-bullying laws in New Jersey and Massachusetts and part of the discussion in Congress over the Matthew Shepard Act, the federal LGBT-inclusive hate crime law. Legislators read stories of victims and argued that perpetrators "deserved" punishment. They said that the acts were "heinous" and "merited social stigma." They wanted to "send a message" that beating up a gay kid and leaving him for dead is just as bad as lynching a black man. This goal is admirable: all laws have an expressive side and society needs the reminder that violence against gays is morally reprehensible.

However, there are three problems with the emotionalizing of law. First, it risks the exclusion of other, more meritorious reasons for passing criminal laws, such as deterrence. During the hate crime law debates in Congress, there was precious little discussion about when precisely to apply hate crime enhancements. Nor was there any evidence entered into the record that these laws actually reduce the number and severity of hate crimes. (Just to be clear, hate crime laws may indeed deter hate crimes. My point is simply that the animating factors behind legislatures passing tough anti-bullying punishments and hate crime laws have been retributive, not deterrence-related.).

Second, these laws are purposely written broadly. They have to be; otherwise, they could not have the expressive effect of enforcing the social norm that all homophobic violence is bad. They can apply to Mr. Ravi and to the villainous bigots who killed Matthew Shepard. But, few rational thinkers could confuse the perpetrators' level of culpability.

Third, a solely retributive law is no better than a purely vengeful one. The retributive concept of punishment is meant to be distinguished from revenge or retaliation based on its point of view -- namely, retribution focuses on society's assessment of the defendant's wrong, whereas vengeance depends upon the impulse of the victim, or his kin, supporters, or friends, to strike back.

In the bullying and hate crime context, a retributive impulse is the state's response with tough criminal laws, whereas revenge occurs when the bullied victim or the hate crime victim and his affinity group fight back and bully or assault their harassers. Offering his defense of retributivism, Professor Douglas Husak admits that retributivists commit a logical jump from a criminal's desert to state-imposed punishment. According to Professor Husak, retributivists can argue that culpable wrongdoers deserve suffering, which can -- but need not -- be imposed by the state. It is punishment's attendant suffering that satisfies our intuitive and emotional responses to criminal conduct, not the fact that such suffering is imposed by the state.

After all, devices other than state punishment can satisfy the demands of retributive justice. A victim's kin can exact their own retribution, just like a bullying victim can respond to harassment by physically assaulting his tormentor. Although retributivists like Professor Husak believe in state monopolies on punishment and universal denial of a personal right to revenge, those beliefs cannot stem from retributive theory alone. There is, then, no principle internal to retributive theory that distinguishes between vengeance and state-imposed punishment.

Therefore, if proposals to criminalize egregious bullying and to enhance punishments for hate crimes are justified solely by their retributive value, such proposals are no more justified than a law that allows bullying victims to attack their tormentors with abandon or for gay persons to exact group revenge against gay bashers. Justice cannot be purely emotional. If it were, we'd be a clan culture based on so-called honor, or vengeance, killings.

The tragedy that befell Tyler requires us to hold the most culpable person responsible, and that is Mr. Ravi. But, as I have argued, the legal regime that would have justified a long and harsh sentence lacks internal consistency, reason, and all the indicia of good policy. Mr. Ravi should be punished, but how he is punished -- and our response to his sentence and his disappointing behavior -- will say more about the maturation of our society and our ability to distinguish emotion from reason as a legitimate basis for criminal laws.

Postscript: This column is based on an article of mine published in the latest issue of the Temple Law Review. For those interested, it is available for download here.

***

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

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Comments

  1. The way I look at it two crimes have been committed here. The first is invasion of privacy for the filming of the personal sex act and broadcasting it to others via the internet. There should be a sentence for that crime. The second is the act of doing it for the purposes of terrorizing an entire community, which should have it's own separate punishment. I don't know how long the punishments should be for each but maybe the hate crime should ad on a percentage of time related to the first sentence rather than a set amount of time.

    Posted by: SFHarry | May 23, 2012 12:07:42 PM


  2. by your thinking NOBODY should ever be charged for anything.

    KKK members should be charged if they commit a race related crime after all society is to blame for them thinking they are superior to blacks.

    a misogynistic man should not be charged for a gender related crime because society is to blame for the way women are treated.

    Ravi committed a crime and should had been sentenced to more time, 30 days is a slap on the face.

    Posted by: johnosahon | May 23, 2012 12:13:48 PM


  3. I think the verdict is too light. Four months would have been more appropriate. And while I do not think that Ravi has learned anything at all from this experience --except perhaps how to beat an indictment in the future-- I'm sure that were he to serve 10 years behind bars he would be no closer to understanding why it was wrong to do what he did... and what kind of assumptions he had when he did it.
    Ravi seems to be completely unconcerned about Tyler. I'm sure that that arrogance within him has not been tempered at all, and that mocking and vilifying a gay person still counts as a socially desireable act in his way of thinking. I do think some of this is cultural. Brahmin Indians are remarkable inpenetrable --sympathy and empathy for others is unknown in their culture. Let's face it, they constructed a culture for themselves where all others are "lesser than", and they act that way every day. I think we're hoping against hope that Ravi will learn the lesson but I don't think that's likely to happen.

    Posted by: Dan Cobb | May 23, 2012 12:18:23 PM


  4. You are dead wrong, I'm sorry. The jude gave him a slap on the hand for bulling, essentially saying bullying is ok, It's just a prank and keep on doing it. It is the WRONG message.

    When the similar incident happened to a famous report her guy got 2.5 year. Here a better assessment of the situation: http://markatlarge.com/would-the-rutgers-spy-case-have-been-different-if-the-victim-was-a-woman-yes/

    Posted by: markatlarge | May 23, 2012 12:22:26 PM


  5. You are dead wrong, I'm sorry. The jude gave him a slap on the hand for bulling, essentially saying bullying is ok, It's just a prank and keep on doing it. It is the WRONG message.

    When the similar incident happened to a famous report her guy got 2.5 year. Here a better assessment of the situation: http://markatlarge.com/would-the-rutgers-spy-case-have-been-different-if-the-victim-was-a-woman-yes/

    Posted by: markatlarge | May 23, 2012 12:22:28 PM


  6. I think the sentence is too light. 10 years would have been too much, but this is way too little. It's unlikely this sentence will change though. As a result I feel obligated to advocate for Mr. Ravi's deportation, which I do believe is appropriate considering his now-criminal status. I would not have supported his deportation if the sentence had been more appropriate for the crime.

    Posted by: antb | May 23, 2012 12:24:48 PM


  7. There is no Justice unless you can buy it. Justice is a joke when in the hands of anti-gay Christians who are insane. Believing in things that do not exist is crazy. yet these people are in positions of power. Hitler was in power and he was a Catholic who believed in some crazy stuff like killing gays and killing people in a minority religion etc.. No Justice No peace!

    Posted by: Dave | May 23, 2012 12:26:18 PM


  8. Here's a reality - cyber-element aside, Ravi is being punished for the very thing that wins an american conservative acclaim, power and votes. Ravi should not be punished by embodying what the majority of political
    Leaders in this country still promote anti gay sentiment. He was guilty of specific charges and offences, but as long as the US rewards
    Those who promote anti-gay bigotry with money power and seats in office nobody should punish Ravi for following their example. Nothing Ravi did is as Harmful as what the santorums the Bryan fischers and the pat robertsons of this country do and say on a daily basis. An anti-gay bulky has no power in a culture where their beliefs are the minority.

    Posted by: littlekiwi | May 23, 2012 12:40:06 PM


  9. No, the distinction between retributivism and revenge is not a matter of "point of view." It has to do with authority: the state has legitimate authority over its subjects (when exercised via the proper procedures), while private individuals don't have legitimate authority over other people. If you go back and read the classic retributivists like Kant and Hegel, they take this idea of authority (and the associated ideas of the rule of law and no one being a judge in their own case) very seriously, unlike many contemporary philosophers.

    This is also what distinguishes the force behind retributivism from the emotional instinct for seeing bad people suffer that you associate it with: retributivism is about punishing law-breakers as part of guaranteeing the rule of law, not about punishing whoever we might have legitimate grudges against, or whoever we might have little sympathy for (whether these judgments are individual or collective.)

    And that is why Ravi's punishment--or, as you say, at least a punishment a few months longer--is perfectly just: while his apparent lack of remorse makes him look like a pretty awful person, he should be punished for his crime, not for his moral character, and his crime, as you have rightly stressed, had the tragic consequences it did only because of a social context of homophobia and anti-gay marginalization that Ravi is not (for the most part) responsible for.

    Posted by: Fodolodo | May 23, 2012 12:42:51 PM


  10. For
    Those that don't understand my post - here it is in a nutshell: focusing on Ravi is like focusing on the westboro baptist
    Church; it's a distraction from the real enemy. Political
    Leaders, religious leaders, televangelists, and public
    Figures make a Living promoting anti-gay sentiment. They're the enemy

    Posted by: littlekiwi | May 23, 2012 12:42:59 PM


  11. I had actually been in the "give him a light sentence" camp until I saw Ravi's post-verdict interview and saw what a smug, arrogant and entitled thug this kid really is. He has no sense whatsoever that he did anything wrong. He has no compassion or sympathy whatsoever that someone he personally attacked then took his life. And then his mother sobbing and wailing about how horrible this was for her son and that his life is ruined. That she expressed not one iota of sympathy for Tyler or his intensely grieving family shows me that both Ravi and his family continue to think he did absolutely nothing wrong. So I'd like to see a considerably longer prison sentence, and I'm not too stupid to realize that my emotions play into that. However, the reasonable side of me recognizes that prison sentences are intended to be rehabilatative. With a 30 day sentence, Ravi will likely serve no more than a couple days, if even a few hours. He'll be processed in and immediately processed out due to overcrowding. His wealthy family will pay his fine and Ravi won't have earned one cent of the responsibility that monetary punishment entails. And he'll probably joke his way through any of the community service - if he even ends up doing much or any of it.

    And Tyler Clementi will still be dead and his family will still have a hole in their lives until they are also all dead. I say bring on the civil lawsuit and sue that SOB and his equally smug family.

    Posted by: MrRoboto | May 23, 2012 12:49:21 PM


  12. Ari, your article is also missing a few things like the multiple guilty counts of witness tampering and destruction of evidence. These are both felonies. The hates crimes enhancement was just that - an add-on.
    The felonies alone deserve more than a 30 day slap on the wrist. 4-5 years would be more appropriate. The community service with LGBT's who have been harmed is an effective way to make clear to Ravi how bias intimidation harms others. Given his lack of remorse, empathy, and emotion, 300 hours is far too lenient. 3,000 hours might be more appropriate.
    As to the emotion in the courtroom, yes it's an emotional situation - a young man is dead when he should not be - but a court of law must deal with facts rather than emotion.

    Posted by: Jeff | May 23, 2012 12:59:26 PM


  13. Dear Ravi,

    Can't wait until you enter the job market and those background checks start happening. Your future would have been easier being deported.

    Posted by: Guest | May 23, 2012 1:26:39 PM


  14. This argument of blaming society for Mr. Ravi's crime sounds so reasonable until you realize that it would then mean no one should really be punished for any crime, since most if not all crimes can have some roots in social conditions and societal forces. IMHO, that is the flaw in their argument.

    These "goldilocks" apologists,["The possible sentence might be too harsh."... "The actual sentence is too light."] seem to be trying to assuage their consciences. Some laws are not there to rehabilitate. Some of these people will never change their minds about gays. Some laws ARE to punish. Plain and simple, no matter how "emotional" that might sound. Or how unenlightened they might want us to feel about those laws.

    Ravi destroyed evidence. Showed no remorse. No apology to the Clementi family. No indication of wrongdoing. And members of our community are supporting him.

    I do hope that all of those who were screaming for a lesser sentence can rest happily now. They got their wish. Let's hope they can also live with their conscience when the next bullied teen kills himself.

    Posted by: Reggie777 | May 23, 2012 1:32:34 PM


  15. Putting people in priso is not the solution for society's ills.

    Posted by: Not one of the crowd | May 23, 2012 1:39:01 PM


  16. There are problmes with NOT "emotionalizing the law."

    A great harm has been done to us and we're asked to stifle our reaction to it.

    NO SALE!!!

    Posted by: David Ehrenstein | May 23, 2012 1:40:54 PM


  17. Littlekiwi is trying to turn this into something all about him and his crusade against the Republican party. This is about hate crime legislation, not the Republican party. Ignore him. He is a conservative troll here to make liberal gays look like traitors to the community. Have you noticed that Kiwi isn't happy unless he's bashing a gay person? That is how you know he is a troll being over-the-top on purpose. Really there are some liberals here who are actually gay and actually liberals; just not him.
    The above article was written by someone who has no memory of Mathew Shephard or is an enemy of the gay community. Hate crime enhancements are of critical importance to protect our community. Anyone who doesn't see this doesn't remember how many more hate crimes there were before the enhancements. If this article is written by a gay person, they are acting as a traitor to the gay community.

    Posted by: NullNaught | May 23, 2012 1:43:33 PM


  18. Ezara I'm really surprised at you. ALL the Gay KAPOS have gone on and on and on about Ten Years. But as we all know ten years was the maximum and there was no way in the world he was goign to be sentenced to ten years.

    But what really disgusts me is that he's been sentenced to TEN MINUTES and there's been no end of blather abotu how this was "the right sentence."

    DO YOU HAVE NOT SO MUCH AS AN OUNCE OF SELF-RESPECT???!!!!

    Posted by: David Ehrenstein | May 23, 2012 1:46:18 PM


  19. Jeff gets it.

    Posted by: David Ehrenstein | May 23, 2012 1:47:35 PM


  20. I've been surprised by the level of sane, measured comments on this issue.

    I don't think Ravi has 'got it' and I don't think he will ever 'get it'. It was an amusement for him, without regard to any personal moral sense or an awareness of current views on the insupportability of homophobia.

    He'll never understand. He, and his family, will merely see it in terms of unfairness and abuse against him.

    It would be wonderful if the whole family were consigned to perform the duties he will have to perform...

    Even then, they still wouldn't 'get it'.

    What, eventually, can you possibly do to enlighten such ignorant trash?

    I don't care how this should be viewed in relation to other issues. There's a law and it's been broken and that dimwit needs to understand that.

    Maybe I'm not so sane or measured as others here...

    Posted by: robert | May 23, 2012 1:48:44 PM


  21. Mr. Ehrenstein: First, my name is Ari. Second, if you had read the piece, you would see that I would have preferred a longer sentence and that I never said that his 30 day sentence was the right sentence. i appreciate your desire to comment and your interest in the materials, but lets not put false words in anyone elses mouth.

    Posted by: Ari Ezra Waldman | May 23, 2012 1:54:40 PM


  22. ---A great harm has been done to us and we're asked to stifle our reaction to it.---

    But Ravi did nothing to YOU . And he should not be punished as a symbol for all that is wrong in society

    Posted by: aki | May 23, 2012 2:15:27 PM


  23. I didn't want Ravi to get the maximum either but agree that what he did get was too lenient. I hope the prosecutors appeal though I doubt they will since they offered him a deal with NO jail time before this went to court.

    However, I disagree with your assessment of the purpose of Hate Crime laws. Ideally hate crimes are those where a person was singled out due to a certain characteristic and, and this is the important part, are intended to intimidate or strike fear into a community. It's the difference between burning down an empty building and setting fire to a black church or synagogue. Both are arson but one is intended to have a larger message.

    I don't know if what Dharun Ravi did fits that definition or not, but it certainly had a chilling effect on gay students at Rutgers and other college campuses that they could be harassed in a similar manner.

    Posted by: Caliban | May 23, 2012 2:17:32 PM


  24. The use of the term "emotional" is perjorative and inexact. It conveys the notion of being universally irrational whenever applied in the context of retribution. But that is exactly why we have courts of law and legislatures, rather than vigilante justice. Courts and lawmakers are intended (admittedly without 100% success) to create and apply laws rationally, regardless of whether those laws were motivated by retribution or deterrence. Additionally, why the presumption that a deterence motivation is inherently more rational? A better word than emotional might be subjective. Is it emotional to say that murder, rape and assault are abhorrant to society and deserve to be punished? Perhaps so, but that doesn't mean that it's irrational or that it's bad for society to act on that collective emotion.

    Posted by: Not A Vigilante | May 23, 2012 2:35:03 PM


  25. Regardless of whether we agree with him or not, this is another spectacularly written article from Mr. Waldman. I'd hope most people here would agree that editorials are a pretty fundamental aspect of journalism, and his articles, for me, are a welcome respite from the Channing Tatum updates or latest "University Swim Team Does Katy Perry Lip Synch" video.

    Ari, you're a credit to this site. Keep it up.

    Posted by: Jeremy | May 23, 2012 3:04:13 PM


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