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.
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).
The expanding definition of hate crimes often changes to include violations against specific groups based on race, sexuality, creed, and national origin and now protects persons with physical and mental disabilities in addition to the elderly. The history of antibias crime law begins with post-Civil War restrictions against groups such as the Ku Klux Klan (KKK). Although not termed hate-crime laws, these federal codes attempted to prevent and punish crimes motivated by racial hatred. An overview of hate-crime legislation, culminating in the civil rights era and garnering governmental support in the 1980s, provides a history of state and federal involvement in cataloging, preventing, and prosecuting hate crimes in America. Some of the more visible hate crimes, such as lynching and antigay violence, are examined more thoroughly in this entry. In addition, specific hate crimes, with names, dates, and descriptions, serve to catalog the range of crimes perpetrated against people based on group association. Finally, a summary of the debate between lawmakers and legal scholars outlines the opposition to hate-crime legislation on the grounds that it invalidates the First and Fourteenth Amendments.
To begin, the Anti-Defamation League (ADL), an organization created to fight anti-Semitism and racism, was the first to create hate-crime legislation in 1981. This legislation, while directed to anti-Jewish crimes, also covers hate crimes committed against any minority group. Every state except Indiana, Georgia, South Carolina, and Wyoming has enacted hate-crime laws that address crimes based on race, gender, or sexual orientation. Typically, the punishment for hate crimes is an enhanced sentence or increase in jail time. Hate crime laws also hold parents responsible for hate crimes their children perpetrate and allow for punitive damages for vandalism of churches, cemeteries, schools, religious centers, and community centers.
Congress passed the Hate Crimes Statistic Act on April 23, 1990, requiring the attorney general of the United States to compile statistics about hate crimes, or crimes committed because of bias or prejudice against a person because of race, ethnicity, sexual orientation, or religion. In conjunction with local and state law agencies, the Federal Bureau of Investigation (FBI) provided data to the Uniform Crime Reporting Program (UCR), which in turn created a database for recording and analyzing hate-crime statistics. The UCR's first publication of their findings, Hate Crime Statistics, 1990: A Sourcebook, contained data from eleven states but did not succeed in offering uniform data. By 1992 the UCR, in conjunction with law enforcement officials, developed their own means of collecting data, generating a comprehensive collection of hate-crime statistics. In 2004 more than 17,000 law enforcement agencies in all fifty states offered the UCR information and statistics on hate crimes. The collaborative efforts of the FBI, law enforcement agencies, and the UCR provides valuable information on the types and numbers of hate crimes being perpetrated in each state. The statistics not only help law officials track hate crimes but also provide valuable information to activist and advocacy groups who in turn educate communities, mobilize support, and lobby for hate-crime legislation.
HISTORY OF HATE-CRIME LEGISLATION
Early legislation that seeks to punish hate crimes can be traced to the close of the Civil War (1861–1865) and was created to combat renegade groups such as the KKK and their mob law. The first United States Federal Code made it unlawful to conspire against citizens with the aim of depriving them of their constitutional rights, but issues of race, religion, sexual orientation, or national origin are never mentioned:
If two or more persons conspire to injure, oppress, threaten, or intimidate an inhabitant of an State, Territory, or District in the free exercise of enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or If two or more persons go in disguise on the highway, or on the premises of another, with the intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured; They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for an term of years or for life, or both, or may be sentenced to death.
(18 U.S.C Section 241)
|Hate Crime Statistics|
|Year||Total Hate Crimes||Driven by Victim's Sexual Orientation|
|source: Federal Bureau of Investigation. Available online at http://www.fbi.gov/hq/cid/civilrights/hate.htm.|
Not until decades later, when the Civil Rights Act of 1968 was enacted, would race become a factor in hate-crime legislation. Because the federal government was under constant pressure during the civil rights era to ensure and defend the rights of black Americans, the Civil Rights Act was created not only to ensure voting rights and access to juries, but also to protect students who attended public universities, safeguard travelers using public transportation or interstate highways, and desegregate restaurants, theaters, motels, and other public facilities where countless hate crimes occurred.
The Hate Crime Statistics Act outlines the specific responsibilities of law enforcement agencies in regards to hate-crime statistics. Agencies must compile statistics from crimes that manifest prejudice based on race, religion, sexual orientation, or ethnicity. This information must be summarized and published by the FBI in January of every year. The benefits of the act, according to the ADL, is that law enforcement agencies can trace certain patterns of hate crimes, anticipating new ones and bolstering authority in cities where hate crimes are most prevalent. The ADL also believes that publishing a report of hate crimes will make victims more apt to report crimes that happen to them.
In 1994 the Violence against Women Act confirmed that persons within the United States shall have the right to be free from crimes of violence motivated by gender. As part of this act rape crisis centers and domestic violence shelters received support and sentencing for crimes against women that included punitive and compensatory settlements.
Although rape is not considered a hate crime, some prosecutors and women's rights organizations, such as Hadassah, are lobbying to expand the definition to encompass sexual crimes against women. Those interested in reclassifying rape as a hate crime argue that the term sexual crime implies passion when, in fact, rape is about power and hatred of women. Certain cases of multiple or violent rapes have been tried as hate crimes in an effort to obtain lengthier prison sentences. Opponents of the reclassification argue that men accused of rape should not receive enhanced prison sentences simply because they target someone of a protected group.
The term lynching is typically used to describe renegade punishments performed without the law's consent. Acting outside of justice in the role of judge and jury, lynch mobs arbitrarily deliver sentences and dispense violent retribution with little or no consideration of factual evidence or eyewitness testimony. Lynching black males for the alleged crime of raping white women became a widespread practice at the close of the Civil War during the period of Reconstruction. When Southern men were far away fighting the war, leaving their wives alone with scores of black males, the crime of rape was scarcely reported. But after slavery was abolished and black males were given citizenship, their free presence threatened the bedrock of white supremacy, and the accusation of rape was a common occurrence in many Southern towns. This racial threat, originating after emancipation, is linked to competition in the job market, infiltration of political spheres, and initiation of sexual relationships with white females. The Tuskegee Institute's records state that 3,446 African Americans were lynched from 1882 to 1968 and that 23.5 percent of these victims were lynched for supposedly raping white women. In almost every instance the crime of rape was never tried in a court of law; instead, violent crowds, in league with law enforcement officials, took matters in their own hands and wrestled prisoners from jail cells to administer mob justice.
The history of lynching, recorded in Without Sanctuary: Lynching Photography in America (2000) by Hilton Als, Jon Lewis, and Leon Litwak, shows a disturbing connection between violent punishment and eroticism, specifically voyeurism. This collection of photographic images is perhaps the most abject record of torture and punishment in America, offering visual evidence of eroticism, or more specifically, impressions of magnetism, fascination, attraction, fetishism, and desire. In the countless photographs of black males with their genitals exposed or mutilated, one must wonder how this form of punishment assumed such a sexualized nature. In lynching photographs of white males or Hispanic males included in the collection, only one photograph shows a man with his pants ripped from his body. In sharp contrast many photographs of African-American males reveal exposed upper or lower bodies, and some victims are stripped completely naked for a group of white onlookers. Many spectators took souvenirs from the bodies such as bone fragments, hair strands, and articles of clothing. The souvenirs once covering the genitals of young black males were turned into fetish objects as the crowd of fascinated onlookers took visual reminder of the lifeless naked bodies. These photographic records seem to verify that ritualized lynching fulfilled a sexual desire for the white voyeur. Black men are shown with their genitals mutilated or completely severed from their bodies, with a bloodied sheet covering the wounds. The practice of lynching black males, in combination with photographic evidence, bears witness to the psychosexual pathologies of white spectators and reveals a fascination with eroticized scenes of torture and death.
Before 1990 and the passing of the Hate Crime Statistics Act, federal and state law simply ignored the problem of antigay violence. Only in the last few decades have violent crimes against lesbians and gays been referred to as hate crimes. In 1986 the U.S. House of Representatives Judiciary Subcommittee on Criminal Justice met to discuss antigay violence. At that meeting psychologists, physicians, sociologists, and other members of the medical community compiled evidence of antigay violence and shared testimony revealing a systemic national antigay sentiment that pervaded schools, churches, courtrooms, and other public spaces. In 1984 the National Gay and Lesbian Task Force compiled statistics from about 1,500 gay males and more than 650 lesbians to gather data on antigay violence. Nineteen percent of the participants described being physically assaulted as a result of their sexual orientation; 44 percent suffered verbal threats of violence, and 92 percent of those threatened admitted to persistent harassment.
When comparing governmental and law-enforcement statistics of antigay violence to those collected from private agencies, a striking trend is obvious; the figures reported from law enforcement agencies are drastically lower than those of advocacy groups and nonprofit agencies. Groups such as the National Coalition of Antiviolence Programs reported 2,212 crimes against gay men in 1995, whereas the FBI estimated only 1,266 offenses, pointing to either a gross miscalculation or a great deal of underreporting. Because lodging a formal complaint requires a police report with identification of the victim, some gays and lesbians choose to remain anonymous rather than call attention to their sexual orientation. In some cases homosexuals would rather suffer antigay violence than disclose sexual orientation to family members and the larger community.
Historically, the relationship between law officials and homosexuals has been volatile, culminating in a massive protest staged by gays, lesbians, and transvestites in 1969 called the Stonewall Riots or Stonewall Rebellion. In June 1969 police raided the Stonewall Inn in Greenwich Village, a popular gay bar that served liquor without a license. Police and more than 1,000 protesters clashed in the streets, marking the first of many protests staged by gays and lesbians in the days to come. Most credit the Stonewall Riots as the beginning of the gay rights movement, the mobilization and organized protest rallies signaling a united front against homophobia and antigay violence. Gay Pride Week—typically held during the last week in June and marked by parades, costumes, marches, and rallies—celebrates gay, lesbian, bisexual, transgendered, and transvestite lifestyles while also commemorating the events at Stonewall and the struggle for gay rights.
SPECIFIC HATE CRIMES
What follows is a list and description of some of the more notable, or well-known, hate crimes that occurred in the United States between the years 1955 and 2006:
August 28, 1955: Emmett Till (b. 1941), an African-American male, disappeared from a small town in Mississippi while visiting relatives. Till, a native of Chicago, allegedly whistled at a white woman outside of a grocery store, infuriating the white citizens who witnessed the event. Allegedly, the white woman's husband and brother-in-law kidnapped Till from his family's home, beat him to death, tied a heavy metal fan blade around his neck, and threw his body in the Tallahatchie River. Till was only fourteen years old at the time of his death and his mother asked for an open casket so that the world could see what they did to her child. The trial gained national attention, with both accused men acquitted of the crime by a jury of all-white males. Many argue that Till's brutal murder generated a great deal of momentum for the civil rights movement.
June 12, 1963: Famed civil rights leader Medgar Evers (b. 1925) was shot and killed at his home in Jackson, Mississippi. The sniper shot Evers in his driveway, though Evers was able to crawl to his front steps before collapsing and later dying at a local hospital. Byron De La Beckwith (1920–2001), a KKK member, was charged with the murder, but two Jackson juries deadlocked on the decision to convict. It would be thirty years later, on February 5, 1994, when Beckwith would finally be convicted of Evers's death; he spent the rest of his life in prison. The film Ghosts of Mississippi (1996) tells the story of Beckwith's final trial and conviction.
June 21, 1964: Three civil rights workers were arrested for allegedly speeding in Philidelphia, Mississippi. Micheal Schwerner (b. 1939), James Chaney (b. 1943), and Andrew Goodman (b. 1943) were part of the Freedom Riders, a group of college students protesting segregation in the South. After the three men spent the day in jail, police officers released them in the evening, ignoring their requests to stay at the facility until morning. Waiting in the dark were several KKK members who systematically shot each man on a country road and hid their bodies in an earthen dam. The case pointed to a conspiracy between Klan members and police officials, and the trials reflected the segregationist leanings of judges and juries. Most of the men responsible for the attack escaped any punishment, and the strictest prison sentence for the murderers was six years. The motion picture Mississippi Burning (1988) chronicles the FBI search for the missing boys.
April 4, 1968: A sniper in Memphis, Tennessee, fatally shot Rev. Martin Luther King, Jr. (b. 1929) as he prepared for a scheduled demonstration. Riots broke out across the entire country in a wave of violence that left forty-six people dead, 2,600 injured, and 21,270 in prison. In the wake of mob violence estimated damage from vandalism and arson was more than $45 million.
October 19, 1973: A group of militant black Muslims called the Death Angels attacked two white victims, Richard and Quinta Hague, with machetes in San Francisco, California. Quinta Hague died from the attack and her husband was severely injured. By killing white men and women the Death Angels earned their wings and became prominent members of the gang. After six months and fourteen deaths, the Death Angels' killing spree finally ceased.
August 19, 1980: Notorious member of the KKK and American Nazi Party, Joseph Paul Franklin, shot two black joggers in Salt Lake City, Utah. The victims, David Martin (age twenty) and Theodore Fields (age eighteen), were allegedly shot for running beside two white women. Franklin was also charged with bombing the Beth Shalom synagogue in 1977 and in May 1980 of attempting to assassinate Vernon Jordan (b. 1935), the once National Urban League director. Franklin only targeted interracial couples or Jews and before his capture was responsible for killing twenty-one people.
August 7, 1998: James Byrd, a forty-nine-year-old African American, was dragged to death by two white supremacist members of the Aryan Nation. On an asphalt street in Jasper, Texas, Byrd was chained to a pickup truck and dragged for almost two miles. The men purportedly told Byrd: "We're starting the Turner Diaries early." A revered text amongst neo-Nazis, The Turner Diaries encourages the slaying of African Americans and Jews. One of the murderers, John William King (age twenty-four), was convicted of the murder and sentenced to death.
October 6, 1998: Matthew Shepard (b. 1976) left a local college bar in Laramie, Wyoming, with two men who claimed, as did Shepard, to be gay. After driving to a deserted rural area, the two men tied Shepard to a fence, severely beat him, and left him for dead. Almost eighteen hours later Shepard was discovered by a cyclist who found him unconscious and suffering from hypothermia. Shepard remained in a coma for five days before dying from massive head trauma that made it impossible for doctors to operate. In response to their son's death, the Shepard family created the Matthew Shepard Foundation to encourage diversity and support education and tolerance.
Friday July 28, 2006: Naveed Afzal Haq, a Muslim American claiming to be angry with Israel, walked into a Jewish community center in Seattle, Washington, and opened fire, killing one woman and wounding five others.
Critics of hate-crime legislation argue that people charged with hate crimes are essentially punished for holding certain opinions, something that tramples on the First and Fourteenth Amendments of the Constitution. Even though the First Amendment guarantees freedom of speech, some forms of personal expression, such as libel, obscenities, and language that either provokes violence or causes injury, are not sanctioned under the First Amendment. How to interpret whether some forms of hate speech fall under the protection of the First Amendment has some lawmakers uncertain. Legislators also cite the Fourteenth Amendment, which delineates equal protection under the law, as proof that enhanced penalty laws are unconstitutional.
Under the Fourteenth Amendment, each individual tried in court for a crime must be treated in the same manner as others tried for similar crimes. If a person charged with murder is given an enhanced penalty for a hate crime, critics argue that punishments are not assigned consistently or in line with equal protection. In addition, some argue that victims of hate crimes receive increased protection under the law simply because they meet the criteria of a protected group.
Susan Gellman, attorney in the Ohio public defender's office, writing in the UCLA Law Review, makes clear the positions of legal scholars against hate-crime laws:
Those who oppose ethnic intimidation laws, or at least who question them most vigorously, do not disagree that bigotry (and certainly bigotry-related crime) is a serious problem. On the contrary, they are also from the ranks of the most civil rights-conscious thinkers and activists. These critics focus on threats to constitutional liberties under the First and Fourteenth Amendments. Their concerns are that these laws tread dangerously close to criminalization of speech and thought, that they impermissibly distinguish among people based on their beliefs, and that they are frequently too vaguely drafted to provide adequate notice of prohibited conduct.
(1991, 30: pp. 333-396)
Although critics argue that hate-crime legislation might infringe on the rights of citizens and turn law enforcement officials into a thought police, many believe that strict deterrents—jail time, restitution for families, and community service, for instance—make perpetrators of hate crimes aware of the penalties for their actions.
Altschiller, Donald. 1999. Hate Crimes. Santa Barbara, CA: ABC-CLIO.
Bureau of Justice Statistics. Available from http://www.ojp.usdoj.gov/bjs/.
Civil Rights Act of 1968, 25 U.S.C. §§ 1301-03.
Gellman, Susan. 1991. "Sticks and Stones Can Put You in Jail, But Can Words Increase Your Sentence? Constitutional and Policy Dilemmas of Ethnic Intimidation Laws." UCLA Law Review 39: 333-396.
"Crimes in the United States 2004." Department of Justice, Federal Bureau of Investigation. Available from http://www.fbi.gov/ucr/cius_04/offenses_reported/hate_crime/index.html.
Hate Crime Statistics Act of 1990, P.L. 101-275, 104 Stat. 140.
Lawrence, Frederick M. 1999. Punishing Hate: Bias Crimes under American Law. Cambridge, MA: Harvard University Press.
Levin, Jack, and Jack McDevitt. 1993. Hate Crimes: The Rising Tide of Bigotry and Bloodshed. New York: Plenum Press.
Partner's Against Hate. Available from http://www.partnersagainsthate.org/law_enforcement/resources.html.
Sloan, Lacy M., and Nora S. Gustavsson, eds. 1998. Violence and Social Injustice against Lesbian, Gay, and Bisexual People. New York: Haworth Press.
Streissguth, Tom. 2003. Hate Crimes. New York: Facts on File.
Violence against Women Act of 1994, 42 U.S.C. § 13981.
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.
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).
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.
Gerstenfeld, Phyllis B. 2004. Hate Crimes: Causes, Controls, and Controversies. Thousand Oaks, CA: Sage.
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 are message crimes. They affect more than the targeted individual; they affect the entire community. When a person of a selected race or ethnicity is attacked simply because of skin color, the entire ethnic community is put in fear.
Hate crime laws have spawned much debate in modern society. They are viewed as essential by some segments of the community as a powerful tool with which to combat violent bigotry, but they are denounced by others as an overextension of governmental power designed to legislate morality. Addressed here are the specifics of hate crime laws, some of the reasons for the controversy that surrounds them, the reliability of statistics, and the different types of hate crime offenders and hate crime victims.
Most states in the early twenty-first century have some form of hate crime legislation. Many such laws create criminal enhancements that increase the level of punishment for crimes with a “hate” component. The wording of hate crime laws often includes numerous protected classes, in addition to race. In California for example, Penal Code Section 422.55(a) defines a hate crime as “a criminal act committed, in whole or in part, because of one or more of the following actual or perceived characteristics of the victim: (1) Disability, (2) Gender, (3) Nationality, (4) Race or ethnicity, (5) Religion, (6) Sexual orientation, (7) Association with a person or group with one or more of these actual or perceived characteristics.” Penal Code Section 422.56(d) explains that the phrase “in whole or in part, because of” means that “the bias motivation must be a cause in fact of the offense, whether or not other causes also exist. When multiple concurrent motives exist, the prohibited bias must be a substantial factor in bringing about the particular result. There is no requirement that the bias be a main factor, or that the crime would not have been committed but for the actual or perceived characteristic.”
Hate crime laws apply even if the offender mistakenly believes a victim has a characteristic that the person does not in fact have. They criminalize actions committed against a person who belongs to a particular ethnic group, or against a person whom the perpetrator believes is a member of such a group. An assault against an Asian who is mistakenly believed to be a person of Middle Eastern ancestry is no less a hate crime just because the perpetrator’s perception of the victim’s ethnicity was incorrect.
Opponents of hate crime laws feel that the government should not function as “thought police,” and that the motivation of the perpetrator should be irrelevant. This viewpoint often stems from a misunderstanding of the scope of hate crime laws. Citizens are free to hold whatever biases they choose; it is only when they commit a crime because of such biases that hate crime laws apply. This distinction is often frustrating for targeted individuals to hear, but it is important for communities to understand that as sympathetic as law enforcement might be, they can only enforce violations of the criminal law.
The controversy over hate crime laws is also fueled by the misconception that hate crime laws infringe upon constitutionally protected freedom of speech. Racial slurs constitute free speech. Such language, unless it qualifies as a criminal threat, is not criminal. The distribution of racist leaflets or brochures is another exercise of free speech and is not subject to prosecution. Hate crimes are criminal acts committed against someone because of their membership in one of the protected classes. But that does not mean that noncriminal acts of discrimination such as racial slurs or the distribution of leaflets should necessarily go undocumented. Although not criminally actionable on their own, they may be useful in proving the motive behind a criminal act. Law enforcement agencies are thus encouraged to document them for tracking purposes and future use. Individuals who exhibit this kind of blatant bigotry by engaging in such behavior often graduate to committing crimes against people of the targeted race. When they do, evidence of their history of intolerance may establish the motive necessary to prove the commission of a hate crime.
Because of underreporting, it is statistically difficult to determine the prevalence of hate crimes. Many hate crime victims do not report their victimization because they are unaware of the existence of such laws. Others do not trust the police or do not feel that anything will be done. In some cases this hopelessness is the result of prior bad experiences with law enforcement agencies who were themselves unfamiliar with hate crime laws and the resources available to victims. Other reasons victims do not report hate crimes include fear of retaliation, fear of deportation, and fear that their status as private members of the gay and lesbian community will be revealed.
On the positive side, increased community education about hate crimes has resulted in an increase in the number of hate crimes that are reported. Someone unfamiliar with this area of the law might look at the statistical increase in reported hate crimes and conclude that there has been an alarming increase in hate crimes. The professional opinion of those involved in the field, however, is that the statistical increase is not due to an actual increase in hate crimes committed, but rather to an increase in hate crimes reported. This increase in reporting is attributed in part to the proactive nature of tolerance-based programs and hate crime law-enforcement teamwork. Partnerships among peace officers, prosecutors, the Anti-Defamation League, and other community groups have resulted in greater public awareness of hate crimes and how communities can report and combat such bias.
For over a decade, the Federal Bureau of Investigation’s Uniform Crime Reporting (UCR) Program has been collecting information on hate crimes. The 2003 Hate Crime Statistics report, which was published in November 2004, listed 8,715 offenses, 4,574 of which were motivated by racial bias. With all fifty states reporting, the 2003 report broke down the 8,715 offenses committed by state. California was in the lead, with 1,701 offenses reported; in second place was New Jersey, with 638; third was New York, with 625; and rounding out fourth and fifth place were Michigan and Massachusetts, with 487 and 473, respectively.
Although the numbers reported serve a statistical purpose, the unfortunate reality for victims is that most hate crimes go unsolved. This is because most hate crimes
are attacks on strangers without any motive but intolerance and hatred. There is no preexisting relationship to lead police to a suspect; there is no stolen property to trace; and because hate crimes are often impulsive, there is no evidence of prior planning that might generate leads.
Research and experience show that there are different categories of hate crime offenders and that different factors contribute to a perpetrator’s motivation. Responding to Hate Crime (2000), by the National Center for Hate Crime Prevention Education Development Center, identifies three common types of hate crime offenders. Thrill-seeking offenders are the most common. Usually acting in groups, these are typically young people who seek out victims on the victim’s own turf, usually to gain “bragging” rights. These perpetrators, who commit more crimes against property than against persons, are predominantly motivated by a desire for acceptance by their peers, rather than by hatred for the victims. Reactive offenders feel a sense of entitlement with respect to rights and privileges they feel they should enjoy, and they are threatened by their victims, usually people of color, whom they perceive as a threat to these rights and privileges. They consequently feel justified in intimidating and committing crimes against these victims, who are often members of the offender’s neighborhood, workplace, or school. Mission offenders are the most violent type of hate crime offender, though fortunately they are the rarest. They view their victims as “subhuman” and part of a conspiracy, and they are motivated by a psychotic belief that they must rid the world of such people. They seek out their victims where such victims are likely to be found. Some mission offenders conclude their mission with their own suicide.
Hate crime offenders can be identified circumstantially through many different factors, including bigoted remarks, manner of dress, racist tattoos, “White Pride” music playing in their vehicles, and sometimes even the date they choose for their attack. For example, many hate crimes are committed on certain holidays, such as Martin Luther King Day or on the birthday of Adolf Hitler.
Dramatic profiles aside, hate crimes are also committed by ordinary citizens, often in response to a real or perceived threat by a particular group. These retaliatory hate crimes are actually inappropriate expressions of anger or fear. Shortly after the attacks of September 11, 2001, the following “retaliatory” hate crimes were reported: A woman in traditional Muslim dress was almost hit when a car intentionally swerved towards her as she was crossing the street; an Arab-American family arrived to open their grocery store in the morning only to find “Go Home Arabs” spray-painted on the front of their door; an evening prayer service was interrupted by cherry bombs exploding outside on the sidewalk of a mosque. Scores of Arab-Americans, and also those who appeared to be of such ethnicity, were subjected to the wrath of frustrated citizens in the aftermath of the September 11 tragedy. Many of the victims became afraid to go to work, afraid to worship, even afraid to send their children to school because some of their children had been subjected to violence there.
Many citizens cannot imagine what it is like to be a hate crime victim. Hate crime victims cannot employ traditional means of self-protection because they are targeted by criminals with a unique motivation. Criminals motivated by financial gain commit crimes such as theft and embezzlement. Criminals motivated by a quest for sex or power commit sexual assaults. Physically violent crimes are often the result of arguments, or they are committed for revenge. Awareness of criminal motivations allows society to protect itself to some extent. To avoid a mugging, one does not wear expensive jewelry or walk down dark alleys at night. To prevent car theft, one locks one’s car, equips it with an alarm system, and parks it in lighted areas. Hate crime victims, however, cannot take precautionary measures to defend themselves. A person targeted due to the color of their skin cannot eliminate that risk factor.
When a person is attacked based on an immutable characteristic, the fear of revictimization may lead to helplessness and isolation. Victims of hate crimes feel degraded, frustrated, and afraid. These emotions ripple through their community, leading to outrage, blame, and collective fear. Because most hate crimes go unsolved, victims often suffer the additional frustration of knowing that the offender is unlikely to be brought to justice, and is therefore more likely to re-offend. This frustration, like the outrage of the crime itself, spreads throughout the victim’s community.
Despite the best efforts of law enforcement and human rights groups, hate crimes will probably never be completely eradicated, and an overnight transformation from intolerance to acceptance cannot be expected. Therefore, the debate over hate crime laws will continue. In the meantime, those with first-hand experience in the field understand that although the fight can be difficult, in the balance, the opportunity to help victims regain their dignity outweighs the frustration of unsolved cases.
Anti-Defamation League. 2001. Extremism in America: A Guide. Available from http://www.adl.org/learn/Ext_US/.
Devine, Richard A. 1998. Hate Crime: A Prosecutor’s Guide. Chicago: Cook County State Attorney’s Office.
McLaughlin, Karen A., Stephanie M. Malloy, Kelly J. Brilliant, and Cynthia Lang. 2000. Responding to Hate Crime: A Multidisciplinary Curriculum for Law Enforcement and Victim Assistance Professionals. Newton, MA: National Center for Hate Crime Prevention Education Development Center, Inc.
Wendy Patrick Mazzarella
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. Although "hate crime" is the popular term used in connection with bias-motivated violence, "bias crime" is a more accurate label. Not every crime that is motivated by hatred for the victim is a bias crime. Hate-based violence is 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. Some statutes define this bias in terms of actual animus. Others look to discriminatory selection of the victim on the basis of membership in the group. Bias crimes can arise out of mixed motivation where the perpetrator of a violent crime is motivated to commit the crime by a number of different factors, bias among them. To constitute a bias crime, the bias motivation must be a substantial motivation for the perpetrator's criminal conduct. The requirement can be put as a question: but for the ethnicity of the victim, would this crime have been committed?
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 statutes 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 it is committed with bias motivation.
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—those crimes that lack a prejudicial motivation but are otherwise identical to the bias crime. The harm is greater on three levels: harm to the individual victim, harm to victim's group or community, and harm to 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 (as is the person injured during a shooting spree in a public place), nor is he attacked for an impersonal reason (as is the victim of a mugging for money). He is attacked for a specific, personal reason, such as, for example, his race. Moreover, the bias crime victim cannot reasonably minimize the risks of future attacks, for he is unable to change the characteristic that made him a victim. 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—the community that shares the race, religion or ethnicity of the victim. Members of the target community of a bias crime may experience that crime in a manner that has no equivalent in the public response to a parallel crime. Not only does the reaction of the target community go beyond mere sympathy with the immediate bias crime victim, it exceeds empathy as well. Members of the target community of a bias crime perceive the 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 includes a large array of harms from the very concrete to the most abstract. On the most mundane level—but by no means least damaging—the isolation effects discussed above have a cumulative effect throughout a community. Bias crimes cause an even broader injury to the general community because they violate not only society's general concern for the security of its members and their property but also the shared values of equality among its citizens and 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.
The enhanced punishment of bias motivated violence raises two sets of constitutional questions. The first questions, which apply to bias crime laws generally, concern the first amendment right of freedom of speech. The second set of questions, which apply only to federal bias crime laws, concern questions of federalism and the constitutional authority for such legislation.
The free expression challenges to hate crime laws were the subject of a flurry of judicial activity bracketed by the Supreme Court decisions in r. a. v. v. city of st. paul (1992), which struck down a municipal cross-burning ordinance, and wisconsin v. mitchell (1993), which upheld a state law that provided for increased penalties for bias crimes. Among courts and scholars alike, three general positions have emerged concerning the consonance of bias crime laws with principles of free expression. One position argues that the enhanced punishment of bias-motivated crimes is an unconstitutional punishment of thought because the increased punishment is due solely to the defendant's expression of a conviction or viewpoint of which the community disapproves. A second position permits the enhanced punishment of bias crimes based on a view that bias motivations and hate speech are unprotected by the First Amendment. Ironically, these two opposing positions share a common premise: that proscription of bias crimes involves regulation of expression and is therefore either impermissible or requiring of justification.
The third position, which appears to be that of the Supreme Court, 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 to distinguish between speech and conduct—the premise of the decision in Wisconsin v. Mitchell. An alternative approach focuses on the actor's state of mind, and distinguishes behavior that is intended to communicate from behavior that is intended to cause harm to a targeted victim. Each approach protects some measure of hate speech and allows for the enhanced punishment of bias 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. The question of constitutional authority for a federal bias crime law is especially acute in the aftermath of united states v. lÓpez (1995), in which the Court struck down the Federal Gun-Free School Zones Act, holding that, because the act neither regulated a commercial activity nor contained a requirement that the firearm possession be connected to interstate commerce, it exceeded Congress's authority under the commerce clause. It is partially for this reason that, at the time of this writing, there is no pure federal bias crimes statute. Nevertheless, bias motivation is an element of certain federal civil rights crimes, and in 1994 Congress directed the U.S. Sentencing Commission to promulgate guidelines enhancing the penalties for any federal crimes in which there is racial, religious, or ethnic motivation. These statutes, however, cover only a small range of cases involving bias motivation.
The commerce clause, which has been used as constitutional authority for antidiscrimination legislation or for laws barring discrimination in public accommodations, housing, and employment, is a potential source for constitutional authority for a federal bias crime law. The more promising source for such authority lies in the post–civil war constitutional amendments. Congress has expressly relied, in part, on the fourteenth amendment and the fifteenth amendment as authority for the federalization of bias motivated deprivation of rights individuals hold under state law. Not every bias crime, however, deprives the victim of the ability to exercise some right under state law. It may be that the thirteenth amendment provides broad constitutional authority for a federal bias crime law. In a series of cases—most notably jones v. alfred h. mayer co. (1968), and runyon v. mccrary (1976)—the Supreme Court articulated a theory of the Thirteenth Amendment as a source of broad proscription of all badges of servitude, empowering Congress to make any rational determination as to what conduct constitutes a badge or incident of slavery and to ban it, whether from public or private sources. Moreover, the abolition of slavery in the Thirteenth Amendment, although immediately addressed to the enslavement of African Americans, has been understood to apply beyond the context of race to include religious and ethnic groups as well. As a matter of constitutional authority, Congress may enact a federal bias crime law so long as it is rational to determine that bias motivated violence is as much a "badge" or "incident" of slavery as is discrimination in contractual or property matters, a determination that would appear to have ample support.
Frederick M. Lawrence
(see also: Hate Speech.)
Kelly, Robert J., ed. 1991 Bias Crime: American Law Enforcement and Legal Responses. Chicago: University of Illinois.
Lawrence, Frederick M. 1999 Punishing Hate: Bias Crimes Under American Law. Cambridge, Mass.: Harvard University Press.
Levin, Jack and Mc Devitt, Jack 1993 Hate Crimes: The Rising Tide of Bigotry and Bloodshed. New York: Plenum Press.
Wang, Lu -in 1997 Hate Crimes Law. St. Paul, Minn.: Clark, Boardman & Callaghan.
A crime motivated by racial, religious, gender, sexual orientation, or other prejudice.
Ward v. Utah
The U.S. Supreme Court has upheld the constitutionality of some state hate crime statutes, including laws that enhance criminal penalties for defendants whose crimes were motivated by racism and other forms of bigotry. Hate crime statutes have been directed at defendants who have burned crosses in the yards of African-American families or those who have assaulted someone because of their race, religion, or sexual orientation. In Ward v. Utah, __ F.3d __, 2005 WL 419760 (2005), however, the state of Utah charged an animal rights protester with violating a hate crime statute (one that did not mention any particular class of victims) that made it a crime to act "with the intent to intimidate or terrorize another person." Utah Code Ann. §76-3-203.3. Though the prosecution ultimately dropped all charges, the protester challenged the constitutionality of the statute, contending that it violated his First Amendment rights. The U.S. Court of Appeals for the Tenth Circuit rejected these arguments, concluding that the law was not overbroad, vague, or an improper time, place, or manner restriction.
Eric Ward, an ardent advocate for the ethical treatment of animals, regularly participated in demonstrations in support of his views. In November 1999, Ward was one of a number of people who attended a candlelight vigil in Magna, Utah, in support of animal rights. At that gathering, a mink stole was set on fire. Thirteen months later, in December 2000, the state charged Ward with misdemeanor disorderly conduct and with an enhancement provision that raised the charge to a felony . The provision authorized enhancing the severity of the criminal charge for certain offenses, including disorderly conduct, where the defendant intended to "intimidate or terrorize" under §76-3-203.3. It was unclear from the factual record whether the state believed that Ward had burned the mink stole. It was also unclear why the state waited so long to charge him with a crime. Finally, the state did not present any evidence to show why it believed that the enhancement provision was justified. Two weeks after charging Ward, the state dropped the enhancement charge and ultimately dismissed all charges. However, the felony arrest became part of Ward's record.
Ward, who planned to participate in more animal rights demonstrations, feared that the state could invoke the felony-enhancement provision in the future. Therefore, he filed a federal civil rights suit against state officials in federal district court , alleging that §76-3-203.3 was unconstitutional. He asked the court to declare the provision unconstitutional and to issue an injunction prohibiting the state from applying it to him. The district court dismissed the lawsuit, finding that Ward lacked legal standing to bring the case. The enhancement provision could only be applied if Ward had committed a misdemeanor, yet he had declared that he would participate in lawful protests. Therefore, Ward would never be a defendant under the enhancement provision and had no stake in pursuing a constitutional challenge of the law. It is a fundamental principle of U.S. constitutional law and the adversarial system that a party must have a stake in the out-come. Ward then filed an appeal with the U.S. Court of Appeals for the Tenth Circuit, arguing that he did have standing. The court agreed and remanded the case to the district court for consideration of the substantive issues.
Ward argued that the enhancement provision was, on its face, unconstitutionally broad, vague, and an improper time, place, or manner restriction. The district court rejected his claims, ruling that the provision was not overbroad because it required the commission of a misdemeanor. It was not vague because the law had a scienter requirement; scienter requires a defendant to have the specific intent to commit the prohibited act. Crimes that require specific intent are tougher to enforce because the state has to prove the defendant's state of mind. Finally, the district court found that the law was content-neutral (i.e., the law did not seek to prosecute persons who held specific viewpoints), and thus the provision was a lawful means of restricting speech.
Ward again appealed the dismissal of his case to the Tenth Circuit. A three-judge panel unanimously held that the district court had interpreted the law correctly. Chief Circuit Judge Deanell Reece Tacha, writing for the court, noted that Ward had incorrectly labeled his First Amendment claims as both as-applied and facial challenges. Because the charges had been dismissed, the law had not been applied to him. Instead, Ward had raised a facial challenge, an argument that the law on its face, and in its own language, was unconstitutional. Judge Tacha stated that facial challenges are "strong medicine" and should be avoided if possible, for the common law method usually looks to specific facts and legal arguments rather than to generalized abstractions. Therefore, Ward had a more difficult task in convincing the court that §76-3-203.3 was unconstitutional.
Judge Tacha essentially agreed with the reasoning and conclusions of the district court. The state needed to prove that a defendant had committed a specifically listed misdemeanor, that he had sought, with specific intent, to cause another person to fear for his physical safety, and that he had done so "with the specific intent to cause another person to fear to exercise freely or enjoy any right secured by state or federal law." The First Amendment does not protect "true threats" or speech that raises the specter of violence. As long as Ward lawfully protested, the enhancement provision would not apply to his conduct.
Crimes of violence motivated by hatred based on race, religion, ethnicity, gender, or sexual orientation have always been a part of the American political landscape. At various times legislative efforts have been made to address the problem, such as laws passed in the late 1960s making it a federal crime to interfere violently with black Americans exercising their legal civil rights. In the 1980s, an American society trying to assimilate the changes wrought by the various liberation movements of the 1960s and 1970s began to look for stronger ways to show its intolerance for bias-motivated crimes. Defining these crimes as "hate crimes," some groups began to lobby for them to be treated as more heinous than crimes not motivated by the perpetrator's prejudice and to be punished more severely.
Political organizations such as the Southern Poverty Law Center and the New York City Lesbian and Gay Anti-Violence Project began to keep records of the occurrence of bias-motivated crimes. Pressured by such groups and by the victims of hate crimes, the federal government passed the Hate Crimes Statistics Act. Passed in 1990, and later extended at least through 2002, the act requires the Federal Bureau of Investigation to monitor and keep reliable statistics on crimes motivated by prejudice based on race, religion, ethnic or national origin, disability, or sexual orientation. In 1996, these statistics showed that 8,759 hate crimes were reported, the majority of them racially motivated.
More than forty states have enacted hate crimes statutes requiring stiffer penalties for a crime if it is categorized as a hate crime. These laws are controversial for many reasons. Conservatives minimize the occurrence of hate crimes, accusing interested groups of inflating the figures. They ridicule the laws as "identity politics," insisting that "thought police" will be required to prove motivation. Even some liberals express concern that the laws potentially interfere with free speech. Racial bias, homophobia, and other prejudices are cultural problems, they say, and must be solved by education rather than legislation. Supporters of hate crime legislation argue that hate crimes deserve greater penalties because they have more serious implications for society than crimes which are not motivated by bias. They cite the fear engendered in targeted groups as a whole by the crimes of intimidation against them, and point to Nazi attempts at the genocide of Jews, Gypsies, gays, and other groups as an example of what can occur in a society that tolerates hate crimes.
Another element of controversy is the inclusion of sexual minorities as a protected group. Of the states that do have hate crime laws, only about half include sexual orientation in their wording. While right-wing groups and politicians resist any sort of legitimization of gay lifestyles, many gay and lesbian groups continue to fight for state and federal hate crime laws that will include crimes against them.
Part of the problem of enacting hate crime legislation lies in attempting to define hate crimes. While beatings, murders, and firebombings of churches, synagogues, or community centers are clear examples of criminal activity, some actions are less obvious. Some states have included cross burnings and swastika displays under their hate crime laws only to be challenged in court for limiting free speech. Many groups, especially colleges and universities, have instituted codes of speech in an effort to outlaw racial epithets and slurs but many argue that the abridgment of free speech is not the answer. Many feminists have lobbied to have rape and domestic violence included as crimes of hate against women. That definition was included in the 1993 Violence Against Women Act, but the hate-crime wording was eliminated in the final version. Though hate-crime legislation was primarily introduced in the hopes of curbing the cross-burnings, synagogue-bombings, and beatings associated with racism, anti-Semitism, and homophobia, it also covers any bias-related crime. Ironically, one of the first supreme court decisions supporting hate-crime laws dealt with an African-American perpetrator in a crime against whites.
Though the debate goes on over the best way to deal with hate crimes, it seems to be clear from statistics that bias-motivated crime continues to be a global problem. Whether the perpetrators are angry, often disenfranchised, individuals or members of an organized hate group such as the Aryan Nation or the Ku Klux Klan, perhaps the debate itself is an important step in eliminating these crimes. The light of exposure robs them of their most frightening and powerful aspect—the secret complicity of society.
Bowling, Benjamin. Violent Racism: Victimization, Policing and Social Context. Oxford, New York, Clarendon Press, 1998.
Jost, Kenneth. "Background: Violence and Prejudice." C. Q. Researcher. Vol. 3, No. 1, January 8, 1993, 7.
Kelley, Robert J., and Jess Maghan, eds. Hate Crime: The Global Politics of Polarization. Carbondale, Illinois, Southern Illinois University Press, 1998.
Lawrence, Frederick M. Punishing Hate: Bias Crimes under American Law. Cambridge, Massachusetts, Harvard University Press, 1999.
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.
"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.
A crime motivated by racial, religious, gender, sexual orientation, or other prejudice.
Alabama Church Arsonists Caught
Three college students were arrested in on March 8, 2006, for setting fire to nine rural Alabama churches. The fires damaged or destroyed five churches on February 3, and four more on February 7. All of the churches were Baptist. Four of the churches torched on February 3 were predominantly white congregations; the rest were predominantly black congregations. The first set of fires occurred in Bibb County, south of Birmingham. The latter four took place in counties in western Alabama.
Arrested were Matthew Lee Cloyd, 20; Benjamin Mosley, 19; and Russell DeBusk Jr., 19. All three are white. Moseley and DeBusk attended Birmingham-Southern College, a school affiliated with the United Methodist Church. Cloyd attended Birmingham-Southern, until transferring to the University of Alabama at Birmingham, in 2005. None of the defendants has a prior criminal record. DeBusk and Moseley were aspiring actors. The day they were arrested, a story about their work appeared in the campus newspaper. Cloyd reportedly planned to become a doctor, like his father.
Approximately 250 officers from state, local, and federal agencies conducted the investigation leading to the arrests. A spokesman for the Bureau of Alcohol, Tobacco, Firearms, and Explosives said the investigators tracked down about 1,000 leads, 500 vehicles, and 1,300 people.
Investigators had reports that a dark SUV with two men had been seen near some of the fires. Investigators made impressions of tire tracks found near six of the churches and discovered the matched a BF Goodrich all Terrain model. Agents scoured tire stores to find records for anyone who had purchased the tire in recent months. The search revealed that Cloyd's mother had purchased a set for her Toyota 4Runner. Mrs. Cloyd told investigators that her son was the main driver of the vehicle.
The defendants were initially arrested upon a complaint filed in U.S. District Court for the Northern District of Alabama. The complaint contained an affidavit of a Bureau of Alcohol, Tobacco, and Firearms agent. The complaint contended Matthew Cloyd told his parents that he knew who had set the fires. Cloyd also told his father that he was present. The complaint further alleged that Cloyd told another person that he and Moseley had done something stupid, as a joke that got out of hand. He told the person they had set a church on fire.
According to the criminal complaint, Moseley admitted to investigators that he, Cloyd, and DeBusk had set the fires in Bibb County. After they torched the first two churches and saw fire trucks on the way, they burned the other three churches. Moseley told investigators that they burned the latter four churches in an attempt to throw investigators off their track.
DeBusk told investigators that he participated in the February 3 fires only. He told investigators that they were deer hunting the night of February 2, 2006, in Cloyd's Toyota 4Runner. DeBusk said he kicked in the door of two of the churches. He learned approximately two weeks later from Moseley that Moseley and Cloyd had set four more fires.
The three allegedly told investigators that they had been out night hunting, in violation of state law. They also admitted they shot a cow that night, and said that alcohol had been involved.
On March 29, 2006, a federal grand jury indicted the three on a ten-count indictment. Count 1 alleges a conspiracy to damage and destroy nine churches by fire. Counts 2 through 6 charge the defendants with the damage and destruction to the five churches in Bibb County. The remaining counts charge that Cloyd and Moseley damaged and destroyed four more churches in western Alabama, in Greene County, Sumter County, and Pickens County.
According to the Department of Justice, the minimum mandatory sentence for each count is imprisonment for at least seven years, and a fine of $250,000. Federal sentencing guidelines would permit the sentences for multiple counts to run concurrently.
In late May, Alabama Attorney General Troy King began to meet with members of the churches to discuss their feelings on possible penalties for the three defendants. The defendants also face state charges. The state charges each carries a maximum sentence of 20 years imprisonment and a $10,000 fine. A plea agreement would most likely cover all federal and state charges.
Cloyd, Moseley, and DeBusk are in jail pending trial. A trial date of November 13, 2006, has been set in federal district court.
After the arrests were announced, the president of Birmingham-Southern, David Pollick, said that the school would help rebuild the churches, both with money and labor. He also announced that Moseley and DeBusk were suspended and banned from entering campus.