A hate crime is a crime committed as an act of prejudice against the person or property of a victim as a result of that victim's real or perceived membership in a particular group. Many of the most notorious hate crimes have been murders, such as the racially motivated murder of James Byrd, Jr., in Texas in 1998 or the homophobicmotivated murder of Matthew Shepard in North Dakota later that same year. The vast majority of hate crimes, however, are cases of assault or vandalism.
The critical identifying element of hate crimes is the bias motivation of the perpetrator. The distinguishing factor can be obscured by the very term hate crime, which is the popular term used in connection with bias-motivated violence. In fact, bias crime is a more accurate label. Many if not most crimes are motivated by hatred of one kind or another. Not every crime that is motivated by hatred for the victim is a bias crime. Hate-based violence causes a bias crime only when this hatred is connected with antipathy for a group, such as a racial or ethnic group, or for an individual because of membership in that group. In some form, virtually every state in the United States expressly criminalizes bias crimes.
Elements of bias crimes
Bias crime statutes in the United States encompass crimes that are motivated by the race, color, ethnicity, national origin, or religion of the victim. Many reach sexual orientation or gender as well, and some include other categories such as age or disability. Bias crime laws may either create a specific crime of bias-motivated violence or raise the penalty of a crime when committed with bias motivation.
The key factor in identifying an actor as a bias criminal is the motivation for the conduct. Bias crimes are unusual but not unique in their focus on motivation rather than the traditional focus on intent. Some scholars have criticized bias crime laws on this basis, a critique that is addressed below.
There are two analytically distinct, albeit somewhat overlapping models of bias crimes. These models may be referred to as the discriminatory selection model and the group animus model. (In this terminology, group is used to represent all group characteristics that constitute bias crimes, such as ethnicity, race, or religion.)
The discriminatory selection model of bias crimes defines these crimes in terms of the perpetrator's selection of his victim. It is irrelevant why an offender selected his victim on the basis of race or other group; it is sufficient that the offender did so. The discriminatory selection model received much attention because it was a statute of this model that was upheld by the Supreme Court in Wisconsin v. Mitchell, 508 U.S. 476 (1993). The group animus model of bias crimes defines crimes on the basis of a perpetrator's animus for the group of the victim and the centrality of this animus in the perpetrator's motivation for committing the crime. Florida and Massachusetts, among other states, have adopted group animus bias crimes laws. Many and perhaps most cases of discriminatory selection are in fact also cases of group animus bias crimes, but not all. A purse snatcher, for example, who preys solely on women, finding it more efficient to grab purses than to pick wallets out of men's pockets, would have discriminatorily selected a victim on the basis of gender, but not with group animus.
Most states with bias crime laws have adopted statutes that draw on both models. These laws provide enhanced sentences for crimes committed "because of " or "by reason of " the victim's real or perceived membership in a particular group. Although these statutes lack explicit reference either to discriminatory selection or animus, they share attributes of both. "Because of " statutes look to the perpetrator's selection of the victim. In addition, particularly in those states that require a finding of maliciousness, "because of " statutes are akin to animus as well.
Under any of these models, bias crimes can arise out of mixed motivation where the perpetrator of a violent crime is motivated by a number of different factors in the commission of the crime, bias among them. To constitute a bias crime, the bias motivation must be a substantial motivation for the perpetrator's criminal conduct. Under the Supreme Court decision in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), all elements of a bias crime must be submitted to a jury (or judge as a trier of fact) and proven beyond a reasonable doubt; a sentence enhancement for a bias crime may not be imposed on a finding by preponderance of evidence by the sentencing judge.
How bias crimes differ from other crimes
The justification for bias crime laws turns primarily on the manner in which bias crimes differ from other crimes. Bias crimes cause greater harm than parallel crimes, that is, those crimes that lack a prejudicial motivation but are otherwise identical to the bias crime. This is true on three levels: harm to the individual victim, the victim's group or community, and the society at large.
Bias crimes generally have a more harmful emotional and psychological impact on the individual victim. The victim of a bias crime is not attacked for a random reason (e.g., the person injured during a drive-by shooting) nor for an impersonal reason (e.g., the victim of a violent robbery). Rather the victim of a bias crime is attacked for a specific, personal reason: for example, race, religion, ethnicity, or sexual orientation. Moreover, the bias crime victim cannot reasonably minimize the risks of future attacks because the victim is unable to change the characteristic that made him a victim in the first place. The heightened sense of vulnerability caused by bias crimes is beyond that normally found in crime victims. Studies have suggested that the victims of bias crimes tend to experience psychological symptoms such as depression or withdrawal, as well as anxiety, feelings of helplessness, and a profound sense of isolation.
The impact of bias crimes reaches beyond the harm done to the immediate victim or victims of the criminal behavior. There is a more widespread impact on the "target community"—that is, the community that shares the race, religion, ethnicity, or other group characteristic of the victim. The target community experiences bias crime in a manner that has no equivalent in the public response to parallel crimes. The reaction of the target community goes beyond mere sympathy with the immediate victim. Members of the target community of a bias crime perceive that crime as if it were an attack on themselves directly and individually.
Finally, the impact of bias crimes may spread beyond the immediate victims and the target community to the general society. This effect may be seen on a number of levels, and includes a spectrum of harms from the very concrete to the most abstract. On the most prosaic level—but by no means least damaging—the isolation effects discussed above have a cumulative effect throughout a community. Members of the community, even those who are sympathetic to the plight of the victim family, may be reluctant to place themselves or their children in harm's way, and will shy away from socializing with the victims, thus exacerbating the problems associated with social isolation.
Bias crimes cause an even broader injury to the general community. Such crimes violate not only society's general concern for the security of its members and their property but also the shared value of equality among its citizens and racial and religious harmony in a heterogeneous society. A bias crime is therefore a profound violation of the egalitarian ideal and the antidiscrimination principle that have become fundamental not only to the American legal system but to American culture as well. Indeed, when a legislature defines the groups that are to be included in a bias crime law, it unavoidably makes a normative statement as to the role of certain groups or characteristics. Bias crime laws are concerned with those characteristics that implicate social fissure lines, divisions that run deep into the social history of a culture. Thus every bias crime law in the United States includes race as a category; racial discrimination, with its earliest roots in slavery, is the clearest example of a social fissure line in American society. Strong cases can similarly be made for the other classic bias crime categories—color, ethnicity, religion, and national origin. When a state legislature debates the inclusion of other categories to its bias crime law, the debate is partly over the place of those groups in society. Drafting the scope of a bias crime law is necessarily a process that includes the locating of social fissure lines.
Scope of the problem
Although there is some reason to believe that the level of bias crimes increased over the last two decades of the twentieth century, it remains difficult to gauge whether the bias crime problem has actually worsened. During the 1980s, public concern over the level of bias-motivated violence in the United States rose dramatically. Such concern and the consequent enactment of bias crime statutes across the United States probably stemmed, at least in part, from an apparent worsening of the bias crime problem. Statistics from both independent and governmental data-gathering organizations support the conclusion that bias crime increased over the course of the 1980s and, to a large extent, leveled off during the 1990s. These statistics, however, remain inconsistent and incomplete. Moreover, the statistics gathered toward the end of the 1980s and throughout the early to mid-1990s reflected not only a growth in the bias crime problem, but also a growth in legislative and administrative awareness of the problem.
In general, experts and commentators on bias crime agree that these crimes had, throughout the mid and late 1980s and early 1990s, increased annually. The main organizations that collect data on the subject of bias-motivated violence—the Anti-Defamation League, the Southern Poverty Law Center, and the National Gay and Lesbian Task Force—all reported such persistent growth.
In 1990 Congress passed the Hate Crime Statistics Act (HCSA) in an effort to provide official statistics concerning the level of bias crimes. Under this act, the Department of Justice must collect statistics on the incidence of bias crimes in the United States as a part of its regular information-gathering system. The Attorney General delegated the development and implementation of the HCSA to the Federal Bureau of Investigation's Uniform Crime Reporting Program for incorporation among its sixteen thousand voluntary law enforcement agency participants. Beginning with the HCSA's implementation in 1991 and through the early 1990s, the F.B.I. documented a general rise in bias crimes. However, these figures, like those reported by other data-gathering organizations, remain vulnerable to charges of inaccuracy. Because the F.B.I.'s numbers simply mirror the numbers reported by state and local law enforcement agencies, and because agency participation under the HCSA is voluntary, the completed data more aptly reflect popular perception of the bias crime problem rather than the problem itself.
There is a mutual-feedback relationship between the bias crime problem and both the popular perception and official response to the problem. A perceived increase in bias crime as fostered by independent data-gathering and reporting leads to increased public concern regarding such crimes. Such concern leads, in succession, to legislative and administrative response, to increased official reporting, and, in effect, to an even greater perceived increase in bias crime. Thus, problem and perception conflate, and the apparent growth in bias crime becomes not simply a reflection of increased hatred and apathy (as the statistics alone would suggest) but also an indication of increased understanding and action (as the increased response to the problem suggests).
On the other hand, there is reason to believe that, despite increased bias crime reporting by police agencies, a majority of bias crime victims do not report incidents at all. Victims' distrust of the police, language barriers, and fear of either retaliation by the offender or public exposure generally may well lead to systemic underreporting of bias crimes.
In addition to all of the problems with measuring the current level of bias crimes, there is a significant problem with establishing a baseline for a meaningful comparison. Data collection on the levels of bias crimes prior to the mid-1980s was virtually nonexistent. For example, it was not until 1978 that the Boston City Police Department became the first law enforcement agency to track bias-motivated crimes; it was not until 1981 that Maryland became the first state to pass a reporting statute.
It is thus not possible to say with confidence the extent to which bias crimes are increasing and the extent to which the increase is one of perception. However, the obvious relationship between perception and problem in no way undercuts the severity of the problem. Whatever the difficulties of measuring bias crime levels with precision, the existence of a serious level of bias-motivated crime is confirmed. Moreover, the mutual-feedback relationship between the level of bias crime and the popular perception of this level does not necessarily undermine a determination of the severity of the problem. As the understanding of what constitutes a bias crime is broadened, that which may have been dismissed as a "prank" in an earlier time is now properly revealed as bias-motivated criminal conduct. This does not mean that bias crimes are being overcounted; rather it means that previously these crimes were undercounted.
Critique of bias crimes
The enhanced punishment of bias-motivated violence has been criticized on a number of grounds. One critique argues that bias crime laws punish thoughts and not criminal acts. This critique itself takes two forms: a constitutional argument that bias crime laws violate the First Amendment right to free expression of ideas, and a criminal law theory argument that bias crime laws improperly focus on motivation rather than mens rea. An additional critique, which applies only to federal bias crime laws, involves questions of federalism and the constitutional authority for such legislation.
The free expression challenges to bias crime laws were the subject of a great deal of scholarly attention as well as a number of judicial opinions. Judicial consideration of the issue culminated in two Supreme Court decisions, R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), which struck down a municipal cross-burning ordinance, and Wisconsin v. Mitchell, which upheld a state law that provided for increased penalties for bias crimes. Three general positions have emerged among observers concerning the challenge to bias crime laws based in principles of free expression. One position argues that bias crime laws unconstitutionally punish thought because the increased punishment is due solely to the defendant's expression of a conviction of which the community disapproves. A second position permits the enhanced punishment of bias crimes, arguing that bias motivations and hate speech are not protected by the First Amendment. Ironically, these two opposing positions share a common premise: that bias crime laws do involve the regulation of expression.
The third position distinguishes between hate speech and bias crimes, protecting the former but permitting the enhanced punishment of the latter. This has been understood in two related ways. One approach is based on the distinction between speech and conduct, protecting hate speech as the former and punishing bias crimes as the latter. This is the approach adopted by the Court in Wisconsin v. Mitchell. An alternative approach focuses on the perpetrator's state of mind, and distinguishes behavior that is intended to communicate from behavior that is intended to cause focused and individualized harm to a targeted victim.
The critique that bias crime laws punish bad thoughts rather than criminal acts also has been based on criminal law doctrine. This argument criticizes bias crime laws for impermissibly straying beyond the punishment of act and purposeful intent to reach the punishment of motivation. The argument rests on the assertion that motive can be distinguished from mens rea, based on the formal distinction between motive and intent: intent concerns the mental state provided in the definition of an offense in order to assess the actor's culpability with respect to the elements of the offense, whereas motive concerns the cause that drives the actor to commit the offense.
Several responses have been made to this critique. First, as a matter of positive law, concern with the punishment of motivation may be misplaced. Motive often determines punishment. In those states with capital punishment, the defendant's motivation for the homicide stands prominent among the recognized aggravating factors that may contribute to the imposition of the death sentence. For instance, the motivation of profit in murder cases is a significant aggravating factor adopted in most capital sentencing schemes. Bias motivation itself may serve as an aggravating circumstance. In Barclay v. Florida, 463 U.S. 939 (1983), the Supreme Court explicitly upheld the use of racial bias as an aggravating factor in the sentencing phase of a capital case. The Court reaffirmed Barclay in Dawson v. Delaware, 503 U.S. 159 (1992).
A second response to this critique of bias crime laws more broadly questions the usefulness of the formal distinction between intent and motive, arguing that the decision as to what constitutes motive and what constitutes intent largely turns on what is being criminalized. Criminal statutes define the elements of the crime and a mental state applies to each element. The mental state that applies to an element of the crime is "intent" whereas any mental states that are extrinsic to the elements are "motivation." The formal distinction, therefore, turns on the elements of the crime. What is a matter of intent in one context may be a matter of motive in another. There are two equally accurate descriptions of a bias-motivated assault: the perpetrator possessed a (i) mens rea of purpose with respect to the assault along with a motivation of bias; or (ii) a mens rea of purpose with respect to the parallel crime of assault and a mens rea of purpose with respect to assaulting this victim because of group identification. The defendant in description (i) "intends" to assault the victim and does so because the defendant is a bigot. The defendant in description (ii) "intends" to commit an assault and does so with both an intent to assault and a discriminatory or animus-driven intent as to the selection of the victim. Both descriptions are accurate. The formal distinction between intent and motive may thus bear less weight than some critics have placed upon it. Whether bias crime laws punish motivation or intent is not inherent in those prohibitions. Rather the distinction mirrors the way in which the law describes these crimes.
The federalism challenges to the constitutionality of a federal bias crime law arise from the fact that the vast majority of bias crimes are state law crimes that are motivated by bias. The question of constitutional authority for a federal bias crime law is especially pressing after the Supreme Court's decisions in United States v. Morrison, 120 S.Ct. 1740 (2000), striking down the civil remedy provisions of the Violence Against Women Act, and United States v. Lopez, 514 U.S. 549 (1995), striking down the Federal Gun-Free Zones Act. Each decision held that the legislation in question exceeded Congress' authority under the commerce clause. It is partially for this reason that, at the time of writing, there is no pure federal bias crimes statute. Bias motivation is an element of certain federal civil rights crimes such as 18 U.S.C. § 245. Moreover, in 1994, Congress directed the U.S. Sentencing Commission to promulgate guidelines enhancing the penalties for any federal crimes that are motivated by bias. These statutes, however, cover only a small range of cases involving bias motivation.
After Morrison and Lopez, the commerce clause, the constitutional authority for civil rights legislation during the 1960s barring discrimination in public accommodations, housing, and employment, is a more doubtful source for constitutional authority for a federal bias crime law. A more promising source for such authority may lie in the post–Civil War constitutional amendments, at least for bias crimes involving racial, ethnic, and possibly religious motivation. In enacting section 245, Congress expressly relied, in part, upon the Fourteenth and Fifteenth Amendments as authority for the federalization of biasmotivated deprivation of certain specified rights individuals hold under state law. Not all bias crimes deprive the victim of the ability to exercise some right under state law. It has been argued, however, that the Thirteenth Amendment as well provides constitutional authority for a federal bias crime law. The modern view of the Thirteenth Amendment, articulated in Jones v. Alfred H. Mayer, 392 U.S. 409 (1968), and Runyon v. Mc-Crary, 427 U.S. 160 (1976), understands the amendment as a constitutional proscription of all the "badges and incidents" of slavery, authorizing Congress to make any rational determination as to what constitutes a badge or incident of slavery and to ban such conduct, whether from public or private sources. The abolition of slavery in the Thirteenth Amendment, although immediately addressed to the enslavement of African-Americans, has been held to apply beyond the context of race to include ethnic groups and perhaps religions as well. The Thirteen Amendment would not, however, provide constitutional authority for elements of a federal bias crime law reaching sexual orientation, gender, or other categories.
frederick M. Lawrence
See also Crime: Definition; Gender and Crime; Mens Rea; Race and Crime; Sentencing: Disparity.
Altschiller, Donald. Hate Crimes: A Reference Handbook. Santa Barbara, Calif.: ABC-CLIO, Inc., 1999.
Anti-Defamation League of B'nai B'rith. Hate Crimes Laws: A Comprehensive Guide. New York: Anti-Defamation League, 1994.
Bowling, Benjamin. Violent Racism: Victimisation, Policing, and Social Context. Oxford, U.K.: Clarendon Press, 1998.
Bureau of Justice Assistance, U.S. Department of Justice. A Policymaker's Guide to Hate Crimes. Washington, D.C.: Department of Justice, 1997.
Dillof, Anthony. "Punishing Bias: An Examination of the Theoretical Foundations of Bias Crime Statues." Northwestern University Law Review 91 (1997): 1015.
Jacobs, James B., and Potter, Kimberly. Hate Crimes: Criminal Law and Identity Politics. New York: Oxford University Press, 1998.
Lawrence, Frederick M. "The Punishment of Hate: Toward a Normative Theory of Bias-Motivated Violence." Michigan Law Review 93 (1994): 320.
——. Punishing Hate: Bias Crimes Under American Law. Cambridge, Mass.: Harvard University press, 1999.
Levin, Jack, and Mcdevitt, Jack. Hate Crimes: The Rising Tide of Bigotry and Bloodshed. New York: Plenum Press, 1993.
Wang, Lu-in. Hate Crimes Law. St. Paul, Minn.: Clark, Boardman & Callaghan, 1997.
"Penalty Enhancement for Hate Crimes." Criminal Justice Ethics 11 (1992): 3–63.
"Papers of a Symposium on Hate Crime Legislation: Hate Crimes—Propriety, Practicality and Constitutionality." Annual Survey of American Law 93 (1992): 483–636.
Apprendi v. New Jersey, 120 S. Ct. 2348 (2000).
Barclay v. Florida, 463 U.S. 939 (1983).
Dawson v. Delaware, 503 U.S. 159 (1992).
Jones v. Alfred H. Mayer, 392 U.S. 409 (1968).
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).
Runyon v. McCrary, 427 U.S. 160 (1976).
Wisconsin v. Mitchell, 508 U.S. 476 (1993).
LAWRENCE, FREDERICK M.. "Hate Crimes." Encyclopedia of Crime and Justice. 2002. Encyclopedia.com. (July 24, 2016). http://www.encyclopedia.com/doc/1G2-3403000136.html
LAWRENCE, FREDERICK M.. "Hate Crimes." Encyclopedia of Crime and Justice. 2002. Retrieved July 24, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3403000136.html
A crime motivated by racial, religious, gender, sexual orientation, or other prejudice.
Hate crimes are based, at least in part, on the defendant's belief regarding a particular status of the victim. Hate-crime statutes were first passed by legislatures in the late 1980s and early 1990s in response to studies that indicated an increase in crimes motivated by prejudice. Approximately 30 states and the federal government have some form of hate-crime statute. Many localities have also enacted their own hate-crime ordinances.
The precise definition of hate crime varies from state to state. Some states define a hate crime as any crime based on a belief regarding the victim's race, religion, color, disability, sexual orientation, national origin, or ancestry. Some states exclude crimes based on a belief regarding the victim's sexual orientation. Others limit their definition to certain crimes such as harassment, assault, and damage to property. In all states, the victim's actual status is irrelevant. For example, if a victim is attacked by someone who believes that the victim is gay, the attack is a hate crime whether or not the victim is actually gay.
Generally, there are three types of hate-crime statutes. Two provide for punishment; the third type mandates only the collection of hate-crime data. One version defines a hate crime as a discrete offense and provides stiff punishment for the offense. Under Ohio's statute, for example, any person who commits menacing, aggravated menacing, criminal damage or criminal endangerment, criminal mischief, or telephone harassment "by reason of the race, color, religion, or national origin of another person or group of persons" is guilty of the hate crime termed ethnic intimidation (Ohio Rev. Code Ann. § 2927.12 [Baldwin 1996]). The gravity of ethnic intimidation is always one degree higher than a base offense. For example, menacing is a misdemeanor of the fourth degree, but menacing based on ethnicity is a more serious offense, classified in Ohio as a misdemeanor of the third degree.
Another type of hate-crime law enhances punishment for certain offenses that are motivated by hate. In Wisconsin, for example, defendants who intentionally select their victims based at least in part on the victims' race, religion, color, disability, sexual orientation, national origin, or ancestry are subject to more severe penalties than they would receive in the absence of such hate-based intent (Wis. Stat. § 939.645 ). Thus in Wisconsin, for a class A misdemeanor based on hate, the maximum fine is $10,000, and the maximum period of imprisonment is two years in jail or prison (Wis. Stat. Ann. § 939.645(2)(a)), whereas an ordinary class A misdemeanor is punishable by a maximum fine of $10,000 or up to nine months in jail, or both (§ 939.51(3)(a)). For a class B misdemeanor, a less serious crime, the maximum fine is $1,000, and the maximum imprisonment is 90 days in jail. If the class B misdemeanor is a hate crime, the maximum fine is $10,000, and the maximum sentence is one year in jail.
A third type of hate-crime statute simply requires the collection of statistics. At the federal level, the Hate Crime Statistics Act of 1990 (Pub. L. No. 101-275, 104 Stat. 140 [28 U.S.C.A. § 534 (1990)]) requires the justice department to collect statistics on crimes that manifest evidence of prejudice. Data must be acquired for crimes based on race, religion, disability, sexual orientation, or ethnicity. The purpose of the act is to provide the data necessary for Congress to develop effective policies against hate-motivated violence, to raise public awareness, and to track hate-crime trends.
Laws against hate crimes might conflict with rights under the first amendment to the U.S. Constitution. Generally, the First Amendment protects a citizen's right to the free expression of thoughts. However, the courts have ruled that First Amendment rights may give way to the greater public good. For example, there is no First Amendment protection for someone who falsely yells "Fire!" in a crowded theater, because such speech endangers the safety of others. Such expression might give rise to a disorderly conduct charge or similar charge. In determining the constitutionality of hate-crime legislation, one primary question is whether the prohibited speech deserves First Amendment protection.
In 1997, the federal government documented 9,861 hate crimes based on the victims' religion, ethnicity, gender, sexual orientation, and disability. More than half of these crimes were motivated by racial bias, and more than 1,000 were based on sexual orientation. These statistics were illustrated in a pair of hate crimes that drew national attention. The deaths of James Byrd, Jr. and Matthew Shepard appeared to be quintessential hate crimes.
Byrd was walking along a street in his Jasper, Texas, community late at night in June 1998 when he was given a ride by three white men in a pickup truck: The men beat him and chained him by
his ankles (with a towing chain) to the back of their truck and dragged him for nearly three miles. Byrd was decapitated and dismembered as he was dragged behind the truck. He had been alive and conscious when it all began. All three of the perpetrators were on parole at the time and had extensive criminal records. It was alleged that at least two of the men had affiliations with racist groups, such as the Aryan Nation and the ku klux klan, and displayed white-supremacist tattoos. All three were convicted of murder, and two were sentenced to death.
Mathew Shepard was a 21-year-old college student at the University of Wyoming in Laramie. On October 12, 1998, he died, in part, because he was a homosexual. On October 6, 1998, two men in their early twenties entered a local bar, where Shepard was already drinking. The men, pretending to be gay, approached Shepard who eventually left with them. The men then drove him to a deserted area, where they tied him to a fence and pistol-whipped him until his skull collapsed. They took his wallet and shoes and obtained his address so that they could rob his apartment. Shepard was discovered 18 hours later, still tied to the fence. He never regained consciousness. The pair were charged with first-degree murder, kidnapping, and aggravated robbery. Both men plead guilty to the charges and were sentenced to serve two consecutive life sentences, escaping a possible death sentence.
The U.S. Supreme Court has been called upon to examine the constitutionality of hate-crime laws. In 1992 the Court struck down a St. Paul, Minnesota, ordinance on the ground that it violated the First Amendment (R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S. Ct. 2538, 120 L. Ed. 2d 305 ). In R.A.V. several juvenile defendants were tried and convicted after they allegedly assembled a crude, wooden cross and set it on fire in the yard of an African-American family in St. Paul. The teenagers were arrested and charged under St. Paul's Bias-Motivated Crime Ordinance (Minn. Legis. Code § 292.02). Under the ordinance, a person who placed "on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika" and who had reason to know that the display would arouse anger or alarm in others based on "race, color, creed, religion or gender" was guilty of a misdemeanor.
Do Hate-Crime Laws Restrict First Amendment Rights?
The U.S. Supreme Court's upholding of the state "hate-crime" law in Wisconsin v. Mitchell, 508 U.S. 476, 113 S. Ct. 2194, 124 L. Ed. 2d 436 (1993), has not stopped some legal commentators from arguing that such laws violate the first amendment of the U.S. Constitution. Though these critics generally admit that hate crimes are on the rise, they believe that laws that increase the severity of punishment on the basis of the motives of the perpetrator create a dangerous precedent for government interference with freedom of expression and thought. Defenders of hate-crime laws reject these fears, claiming that the laws deal with criminal conduct and are meant to send a message that discrimination will not be tolerated.
Critics of the laws have articulated a number of reasons for their opposition, some constitutional, some practical. The foremost concern is that hate-crime laws violate a person's right to freedom of thought. These statutes enhance the penalties for conduct already punished under state law when the perpetrator is motivated by a type of bigotry the legislature finds offensive. Therefore, if a rich man assaults a homeless person because he hates the poor, the rich man can be charged only with assault, because the legislature has not specifically found bigotry against the poor to be offensive. However, if a man assaults an African American because he hates persons of that race, he can be charged with assault and intimidation, which carries a more severe penalty, or his sentence for assault can be increased, because the legislature has penalized a racially discriminatory motive. For the critics of hate-crime laws, this result reveals that the legislature is regulating the defendant's thoughts, in violation of the First Amendment.
Critics also charge that the focus on motive distorts the traditional rules of criminal law. In the past, criminal law was interested in a defendant's mental state only to the extent that it would reveal whether the defendant had engaged in deliberate conduct. As a general rule, the motive of a crime has never been considered an element that must be proved at trial. Whether a person robbed a bank to buy food for a family or to pay back a gambling debt is considered irrelevant. The key state-of-mind question is whether the person intended to rob the bank.
Some critics also ask what good the additional penalty will do for persons convicted of hate crimes. If a person is filled with prejudices, extra time spent in prison is not likely to help eradicate those beliefs; it may, in fact, reinforce them. These critics do not believe that hate-crime laws seek to deter criminal activity. They feel that instead such laws appear to seek retribution for acts of violence motivated by racism, sexism, anti-Semitism, and homophobia. The critics contend the retribution model is not compatible with the modern goals of the criminal and penal systems.
Another criticism is that hate-crime laws do not address deeper forces within society that create prejudice. Some social psychologists believe that prejudice and the behavior that may accompany it are caused by a combination of social, economic, and psychological conflicts. Adding more punishment for those who act on their prejudice may give the community the illusion it is dealing with the problem, but, in fact, hate-crime laws do little to help change thought and behavior.
Defenders of hate-crime laws reject the idea that they are taking away anyone's First Amendment rights. They note that in Mitchell the Supreme Court rejected as "too speculative a hypothesis" the "chilling effect" argument, which maintains that these laws chill, or inhibit, free thought and speech. The Court also cited precedent that permitted the "evidentiary use of speech to establish the elements of a crime or to prove motive or intent." This means that persons are free to express their ideas, no matter how repugnant, but when they engage in unlawful conduct based on these beliefs, they surrender their First Amendment rights.
Defenders also believe that hate-crime laws, like other criminal laws, are aimed at preventing harmful acts. The focus is not on stifling disagreeable and prejudicial beliefs or biases, but on preventing the particularly harmful effects of hate crimes. Even critics of the laws admit that hate-crime violence is often brutal and severe. Defenders argue that increasing the penalties for this type of behavior is therefore justified.
Supporters of hate-crime laws point out, as did the Supreme Court in Mitchell, that most of the statutes use the same language as title VII of the civil rights act of 1964 (42 U.S.C.A. § 2000e et seq.). Why, they ask, is it acceptable to penalize employment discrimination that is based on racism and bigotry, but not criminal acts based on similar biases? The courts have long upheld federal and state discrimination laws as acceptable methods of penalizing conduct and promoting nondiscriminatory practices. Intentional employment discrimination requires a person to communicate his or her bias. Supporters conclude that once a person verbalizes a prejudice and acts on it, the state is free to regulate that conduct.
The trial court dismissed the charge on the grounds that it was overbroad and unconstitutionally content-based. Specifically, the court ruled that the statute criminalized too much behavior and infringed on First Amendment rights of free speech. The city of St. Paul appealed to the Minnesota Supreme Court, which reversed the trial court's ruling. The teenagers then appealed to the U.S. Supreme Court.
The high court was unanimous in striking down the St. Paul ordinance. However, it was divided in its legal reasoning. According to the majority opinion, the ordinance violated the First Amendment. Justice antonin scalia, writing for the majority, declared the statute unconstitutional because it prohibited "other-wise permitted speech solely on the basis of the subjects the speech addresses." Scalia illustrated this point by noting that a government may proscribe libelous speech, but that it may not proscribe only libelous speech that is critical of the government. The St. Paul ordinance violated this constitutional rule by proscribing only hate speech delivered through symbols.
In a separate opinion, the concurring justices argued that the majority opinion weakened previous First Amendment jurisprudence. Specifically, the majority opinion protected fighting words, a form of speech that provokes hostile encounters and is not protected by the First Amendment. By holding that "lawmakers may not regulate some fighting words more strictly than others because of their content," the majority had forced legislatures to criminalize all fighting words in order to legally prohibit the most dangerous ones.
According to the concurring justices, the statute was merely overbroad—that is, it legitimately regulated unprotected speech, but it also impermissibly prohibited speech that can cause only hurt feelings or resentment. With more careful wording, the concurring justices argued, hate-crime laws could pass constitutional muster. However, under the Court's majority opinion, this did not seem possible.
In 1993, the Supreme Court revisited hate-crime legislation and unanimously adopted a coherent approach. In State v. Mitchell, 508 U.S. 476, 113 S. Ct. 2194, 124 L. Ed. 2d 436 (1993), Todd Mitchell, a young black man from Kenosha, Wisconsin, was convicted of aggravated battery and received an increased sentence under the Wisconsin hate-crime statute. The incident at issue began with Mitchell asking some friends, "Do you all feel hyped up to move on some white people?" Shortly thereafter, Mitchell spotted Gregory Reddick, a 14-year-old white male, walking on the other side of the street. Mitchell then said to the group, "You all want to fuck somebody up? There goes a white boy; go get him." The group attacked Reddick. Reddick suffered extensive injuries, including brain damage, and was comatose for four days.
Mitchell appealed his conviction to the Wisconsin Supreme Court, which held that the hate-crime statute violated the First Amendment. The state of Wisconsin appealed to the U.S. Supreme Court, which reversed the Wisconsin Supreme Court's ruling. The high court ruled that the Wisconsin statute was constitutional because it was directed at conduct, not expression. The Court distinguished the R.A.V. case by explaining that the St. Paul ordinance was impermissibly aimed at expression. The primary purpose of the St. Paul ordinance was to punish specifically the placement of certain symbols on property. This violated the rule against content-based speech legislation. The Wisconsin law, by contrast, merely allowed increased sentences based on motivation, which is always a legitimate consideration in determining a criminal sentence.
Some states have mandated that a jury decide whether a defendant was motivated by bias, while others have authorized the trial judge to decide bias motivation. In Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), the U.S. Supreme Court examined a New Jersey statute that gave judges the power to decide bias. The Court ruled this practice unconstitutional, requiring that a jury decide the issue based on the reasonable-doubt standard of proof.
Vineland, New Jersey, police arrested Charles C. Apprendi Jr. in December 1994 after he fired eight shots into the home of an African–American family in his otherwise all-white neighborhood. No one was injured in the shooting, and Apprendi admitted that he had fired the shots. In his confession, he told police that he had wanted to send a message to the black family that they did not belong in his neighborhood. Later, however, Apprendi claimed that police had pressured him into making that statement. He contended that he had had no racial motivation for the shooting but rather fired into the house when its purple front door attracted his attention.
Apprendi pleaded guilty to a firearms charge and to having processed a bomb in his house. Although the offenses carried a maximum sentence of ten years in prison, the prosecutor invoked the New Jersey hate-crime law and asked that the judge increase the sentence. The judge agreed and imposed a 12-year prison term, stating that prosecutors had shown, by a preponderance of the evidence, that Apprendi's act had been racially motivated. Apprendi appealed the sentence, arguing that he could be given such an enhanced sentence only if prosecutors presented evidence to a jury that proved, beyond a reasonable doubt, that he had fired the weapon out of racial bias. The prosecutor contended that the hate-crime law punished motive, which has been regarded as a sentencing issue for the judge to resolve.
The U.S. Supreme Court, on a 5–4 vote, reversed the New Jersey Supreme Court and found the hate-crime provision to be unconstitutional. Justice john paul stevens, writing for the majority, stated that any factor, except for a prior conviction, "that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." Justice Stevens based the Court's decision on the Fourteenth Amendment's due process clause and the Sixth Amendment's right to trial by a jury. Taken together, these two provisions entitle a criminal defendant to a jury determination that "he is guilty of every element of the crime, with which he is charged, beyond a reasonable doubt. Although judges do have the right to exercise discretion in sentencing, they must comply with sentencing provisions contained in state criminal statutes. Justice Stevens noted the "novelty of the scheme that removes the jury from the determination of a fact that exposes the defendant to a penalty exceeding the maximum he could receive if punished according to the facts reflected in the jury verdict alone."
The subject of cross burning returned to the U.S. Supreme Court again in Virginia v. Black, 538 U.S. 343, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003). The Court, in a ruling aimed primarily at the Ku Klux Klan, upheld a Virginia statute that made it a felony to burn a cross "on the property of another, a highway or other public place…with the intent of intimidating any person or group." The 6-3 decision meant that the state could prosecute and convict two white men who had burned a four-foot-high cross in the backyard of an African-American family. The family moved away after the incident. Justice sandra day o'connor, in her majority opinion, held that the context of the cross burning determined whether it could be protected as constitutionally protected political speech. The First Amendment would
protect a cross burning at a political rally, but it would not protect what had occurred in this case, which was criminal intimidation.
Hate-crime laws complicate the work of police officers by requiring them not only to capture criminals and to investigate their criminal acts, but also to conduct a broad investigation of their personal life to determine whether a crime was motivated by prejudice. This determination can be difficult to make, and most laws offer little assistance in defining motivation.
The extra investigative work required by hate-crime laws also touches on privacy issues and the boundaries of police investigations. Defendants who have been accused of a hate crime may have their home and workplace searched for information on group memberships, personal and public writings, and reading lists, and for other personal information that may have been inadmissible at trial before the advent of the hate-crime statute.
Advocates of hate-crime laws concede that those laws do not root out all hate crimes, but they note that no criminal law is completely effective. They also contend that the difficulty in determining prejudiced motivation is no different from the difficulty that judges and juries face every day in determining whether the evidence presented in a case supports the charge. Supporters dismiss free speech and privacy concerns by reminding detractors that protections for such categories of rights regularly give way when public safety requires their restriction. According to advocates of hate-crime laws, fighting hatred and prejudice is an important government function, especially when hatred and prejudice motivate victimization.
Bell, Jeannine. 2002. Policing Hatred: Law Enforcement, Civil Rights, and Hate Crime. New York: New York Univ. Press.
Fine, David R. 1994."Beware That False First Step." Kentucky Law Journal 82.
Gaumer, Craig P. 1994. "Punishment for Prejudice: A Commentary on the Constitutionality and Utility of State Statutory Responses to the Problem of Hate Crimes." South Dakota Law Review 39.
Grattet, Ryken, and Valerie Jenness. 2001. "Examining the Boundaries of Hate Crime Law: Disabilities and the 'Dilemma of Difference.'"Journal of Criminal Law and Criminology 91 (spring): 653.
Iganski, Paul, ed. 2002. The Hate Debate: Should Hate be Punished as a Crime? London: Profile Books in association with the Institute for Jewish Policy Research
Jacobs, James B. 1993. "Implementing Hate Crime Legislation Symbolism and Crime Control." In Annual Survey of American Law, 1992–1993.
Kahan, Dan M. 2001. "Two Liberal Fallacies in the Hate Crimes Debate." Law and Philosophy 20 (March): 175–93.
Zwerling, Martin S. 1995. "Legislating against Hate in New York: Bias Crimes and the Lesbian and Gay Community." Touro Law Review 11 (winter).
"Hate Crime." West's Encyclopedia of American Law. 2005. Encyclopedia.com. (July 24, 2016). http://www.encyclopedia.com/doc/1G2-3437702090.html
"Hate Crime." West's Encyclopedia of American Law. 2005. Retrieved July 24, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3437702090.html
Although crimes against individuals based on their race, religion, ethnicity, and sexual orientation have a long and ignoble history throughout the world, the term hate crime was first popularized in the United States. In 1985 three members of the U.S. House of Representatives introduced legislation requiring the U.S. government to collect and publish statistical information on the growing number of bias-motivated crimes committed throughout the country. Enacted in April 1990, the Hate Crimes Statistics Act requires the U.S. Department of Justice to acquire and publish data from local law enforcement agencies on crimes that “manifest prejudice based on race, religion, sexual orientation or ethnicity.” The coverage was expanded to include disability in 1997. According to the Federal Bureau of Investigation (FBI), “a hate crime, also known as a bias crime, is a criminal offense committed against a person, property, or society which is motivated, in whole or in part, by the offender’s bias against a race, religion, disability, sexual orientation, or ethnicity/national origin.”
The first FBI hate crimes report was published in 1993 and covered the calendar year 1991. Although this report, Hate Crime Statistics, is the official U.S. government tabulation of these crimes, some ethnic and other advocacy groups—including the National Asian Pacific American Legal Consortium and the National Coalition of Anti-Violence Programs, a gay rights organization—conduct their own annual audits of hate crimes. These groups claim that the FBI statistics underreport the number of hate crimes because victims are often afraid to contact law enforcement officials, fearing either stigmatization or the jeopardizing of their status as recent immigrants.
Prior to the passage of national hate crimes reporting legislation, the Anti-Defamation League (ADL)—the preeminent Jewish civil rights organization in the United States—drafted model hate crimes legislation in the early 1980s to punish criminal actions aimed at racial and other minority groups, including Jews. As of 2006, forty-six states and the District of Columbia have enacted legislation similar to the ADL model. These laws cover a wide variety of criminal activities, including vandalism directed at religious institutions and bias-motivated violence against individuals. Many states have enacted “penalty enhancement” statutes for hate crimes.
Some late twentieth-century bias-motivated crimes have received national attention. When a Hasidic Jewish driver accidentally ran over a seven-year-old African American boy in a Brooklyn, New York, neighborhood in 1991, an anti-Jewish riot ensued and local black youths murdered Yankel Rosenbaum, a visiting Australian scholar. On October 6, 1998, Matthew Shepard, a gay college student in Laramie, Wyoming, was savagely beaten because of his sexual orientation and later died. Earlier that year, James Byrd Jr., a forty-nine-year-old African American man was chained to a pickup truck in Jasper, Texas, and dragged to his death. His attackers were members of a white supremacist group.
Why should a hate crime be treated differently than any other criminal activity directed at individuals or property? What is the legal justification for enhancing the punishment for these crimes? These questions have persisted since the passage of the earliest hate crimes legislation and continue to provoke vigorous debate among legal scholars, legislators, and law enforcement officials. In his scholarly legal and philosophical defense of hate crime statutes, Punishing Hate, law professor Frederick M. Lawrence noted that:
Bias crimes spread fear and intimidation beyond the immediate victims to those who share only racial characteristics with the victims. Members of the target group suffer injuries similar to those felt by the direct victim of the actual crime.… Bias crimes, therefore, cause a greater harm to a society’s collective living standard than do parallel crimes … and thus warrant enhanced criminal punishment. (Lawrence 1999, p. 63)
Legal scholars James B. Jacobs and Kimberly Potter, however, suggest that hate crime laws are unnecessary and create new crime categories that “may exacerbate rather than ameliorate social schisms and conflict” (1998, p. 144). Despite the continuing intellectual debate about the merits of hate crime statutes, the constitutional basis for these laws has been affirmed in the 1993 Supreme Court decision Wisconsin v. Mitchell. In addition, some state courts have upheld the legality of these laws.
Outside the United States, some European countries have enacted laws to criminalize hate crimes. The Vienna Declaration and Programme of Action, adopted in 1993 by the United Nations World Conference on Human Rights, calls on governments around the world to adopt measures “to counter intolerance and related violence based on religion or belief” and other practices directed against different minority groups. In 2005 Human Rights First—formerly the Lawyers Committee for Human Rights—conducted a study of the fifty-five members of the OSCE (Organization for Security and Cooperation in Europe) and found that nineteen of the fifty-five OSCE member states had enacted legislation declaring that racist motivation in crimes is to be “considered an aggravating circumstance in sentencing” (McClintock 2005, p. vii). Only five surveyed OSCE countries had hate crime statutes for bias-motivated crimes based on sexual orientation. Most third world countries do not have hate crimes legislation comparable to the West; some Muslim countries, in fact, prosecute homosexual behavior and there is occasional government-sanctioned or citizen-sponsored violence directed at gay men and lesbians.
Altschiller, Donald. 2005. Hate Crimes: A Reference Handbook. 2nd ed. Santa Barbara, CA: ABC-CLIO.
Federal Bureau of Investigation. Hate Crime Statistics. 1995–2005. http://www.fbi.gov/hq/cid/civilrights/hate.htm.
Gerstenfeld, Phyllis B. 2004. Hate Crimes: Causes, Controls, and Controversies. Thousand Oaks, CA: Sage.
Jacobs, James B., and Kimberly Potter. 1998. Hate Crimes: Criminal Law and Identity Politics. New York: Oxford University Press.
Lawrence, Frederick M. 1999. Punishing Hate: Bias Crimes under American Law. Cambridge, MA: Harvard University Press.
McClintock, Michael. 2005. Everyday Fears: A Survey of Violent Hate Crimes in Europe and North America. Washington, DC: Human Rights First.
United National High Commissioner for Human Rights: World Conference on Human Rights in Vienna on 25 June 1993. Vienna Declaration and Programme of Action. http://www.ohchr.org/english/law/vienna.htm.
"Hate Crimes." International Encyclopedia of the Social Sciences. 2008. Encyclopedia.com. (July 24, 2016). http://www.encyclopedia.com/doc/1G2-3045300998.html
"Hate Crimes." International Encyclopedia of the Social Sciences. 2008. Retrieved July 24, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3045300998.html
HATE CRIMES. Hate crimes are crimes committed because of the victim's race, gender, national origin, religion, sexual orientation, or other protected status. The federal government, most states, and many localities have enacted laws or regulations to define such acts as separate crimes in themselves or to augment penalties for existing crimes when motivated by hatred or bias. Because definitions vary across jurisdictions, acts as disparate as lynching, assault while calling the victim derogatory names, cross burning, or making intimidating threats on the basis of the victim's race or other protected status might be considered hate crimes. Whatever the definition, statistics show that incidences of hate crime were on the rise in the late twentieth century.
On the federal level there is no hate crime law per se, though legislative efforts to enact such a law came close to succeeding in the late 1990s. Prior to 1994, federal prosecutors combating hate crimes depended primarily on civil rights statutes, including those protecting voting activities, fair housing, and the enjoyment of public accommodations. In 1994 Congress added to federal authority to prosecute hate crimes by providing sentence enhancements for any existing federal offense if the defendant selected the victim "because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation" of the victim. Also in 1994, Congress passed the Violence against Women Act, which provided a civil cause of action for gender-motivated violence. The Supreme Court, however, voted 5 to 4 in United States v. Morrison (2000) to strike down the relevant provisions as being outside Congress's legislative authority under the commerce clause and the Fourteenth Amendment.
During the last two decades of the twentieth century, nearly every state enacted a hate crime law of some kind. Most of these statutes took the form of sentence enhancements for existing crimes. Others defined new substantive criminal offenses or created new private causes of action.
Hate crime statutes raise a number of serious policy and legal questions. Some critics believe that hate crime statutes pose serious First Amendment difficulties by distinguishing among criminals based on their beliefs. Other critics charge that the statutes are unconstitutionally vague or send the inappropriate message that crimes committed for reasons other than bias are not as serious. Supporters of hate crime statutes assert that the constitutional concerns can be surmounted and that the statutes are necessary to make clear society's strong belief that bias-motivated crimes are particularly detrimental to the social fabric.
Some of the constitutional issues raised by hate crime statutes were the focus of two Supreme Court cases in the early 1990s. In R.A.V. v. City of St. Paul (1992), the Court struck down a local ordinance that outlawed placing on public or private property a symbol or object likely to arouse "anger, alarm, or resentment … on the basis of race, color, creed, religion, or gender." The defendant had been charged under the ordinance after burning a cross in the yard of an African American family. Even though the "speech" at issue fell into the analytical category of "fighting words," which the Court had previously maintained was of low constitutional value, the Court held that the ordinance was viewpoint based and thus facially unconstitutional.
In Wisconsin v. Mitchell (1993), the Court upheld, against a First Amendment challenge, a state statute that increased a defendant's punishment for battery because he selected his victim on the basis of the victim's race. In a unanimous opinion the Court rejected the defendant's argument, adopted by the lower court, that the penalty enhancement represented punishment for bigoted thought. The state could legitimately punish criminal conduct motivated by bias more than the same criminal conduct without such motivation because of the greater harm likely to flow from the former. After R.A.V. and Mitchell, hate crimes statutes in the form of penalty enhancements became the preferred form at both the federal and the state levels.
Jacobs, James B., and Kimberly Potter. Hate Crimes. New York: Oxford University Press, 1998.
"Symposium: Federal Bias Crime Law." Boston University Law Review 80 (2000): 1185–1449.
Wang, Lu-in. Hate Crimes Law. St. Paul: West, 1993. Comprehensive reference source on federal and state hate crime law.
"Hate Crimes." Dictionary of American History. 2003. Encyclopedia.com. (July 24, 2016). http://www.encyclopedia.com/doc/1G2-3401801859.html
"Hate Crimes." Dictionary of American History. 2003. Retrieved July 24, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3401801859.html
). During the 1980s legislation was developed around the idea of hate crimes.
GORDON MARSHALL. "hate crimes." A Dictionary of Sociology. 1998. Encyclopedia.com. (July 24, 2016). http://www.encyclopedia.com/doc/1O88-hatecrimes.html
GORDON MARSHALL. "hate crimes." A Dictionary of Sociology. 1998. Retrieved July 24, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1O88-hatecrimes.html
GORDON MARSHALL. "crime, hate." A Dictionary of Sociology. 1998. Encyclopedia.com. (July 24, 2016). http://www.encyclopedia.com/doc/1O88-crimehate.html
GORDON MARSHALL. "crime, hate." A Dictionary of Sociology. 1998. Retrieved July 24, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1O88-crimehate.html