Hate crimes: a response

Hate crimes, or at least a seminal form of them, have been with us since nearly the founding of this country. They run the gamut from atrocities against Native Americans to the universe of abuses that surrounded slavery, to the nightriders of the Ku Klux Klan to the "lynching era" of 1880-1930.

The laws against, them, however, are really quite new. They did not exist until the early 1980s, when a number of states began trying to grapple with the phenomenon. And for most Americans, they still are somewhat alien; in many regards they feel like any number of other "feel good" laws passed as sops to various minorities seeking to bolster their civil rights. Moreover, there is a dark side to them: Do they create thought crimes? Are they actually a threat to our civil liberties?

Jeralyn Merritt at TalkLeft comes down on this side of the debate, and evidently has for at least awhile, having chaired a committee on the issues for the National Association of Criminal Defense Lawyers, and subsequently authoring an article making these arguments. She recently posted a condensed version that made a cogent and persuasive response to the posts by Matt Singer and Matthew Yglsesias favoring the laws.

I should note that Jeralyn is one of the rare bloggers with whom I usually agree with nearly everything she writes. But in this case, I a firmly disagree with her position in nearly every detail. (I've mentioned that my next book is about hate crimes in America -- the reality, not the theory -- and much of what follows forms the core of my basic thesis.)

Let me address Jeralyn's points one by one:

The federal judiciary released a statement recently expressing constitutional and practical concerns about hate crime laws. The underlying criminal activity of a hate crime, such as robbery, assault, or murder, traditionally falls under state jurisdiction. The concern is that by passing federal hate crime laws, there will be a mass federalization of crime which should and could be adequately handled at the state level instead of overburdening our already overwhelmed federal courts.

This concern is not very well grounded. Neither the current federal hate-crimes laws, nor the new version currently making its way in the Senate, step into state jurisdictions in any form.

A bit of explanation first: Hate crimes have little to do with "hate," particularly in the legal sense. The correct term for them is "bias-motivated crimes" or "bias crimes." They only exist on the books as a different category of crimes with which we already are well familiar (murder, assault, threatening, intimidation, vandalism, etc.) -- that is, a hate crime always has a well-established "parallel" crime underlying it, with the added layer of motivation by bias (racial, ethnic, etc.).

The federal hate-crimes laws either on the books or proposed so far restrict themselves to sentence enhancements for federal crimes committed with a bias motivation. In this respect, they closely resemble federal anti-terrorism laws, at least structurally; these laws, too, deal only with federal crimes committed with a terroristic intent.

The current federal law, passed in 1995, in fact is extremely limited (and nearly useless) because it restricts federal law enforcers from filing a hate-crimes charge unless the crime is committed on federal property or as a disruption of a federal activity (including voting). The new version, currently making its way forward in the Senate, largely eliminates this limitation, but is even more explicit about maintaining state and local prerogatives, and restricting the federal government primarily to the role of financier, coordinator and helper. Here is the 2001 version of the same bill, which goes by the title, "Local Law Enforcement Enhancement Act."

Hate-crimes laws do raise important questions about federalism -- but then, all federal criminal legislation raises them. This includes their antecedents in the Reconstruction (particularly the Civil Rights Act of 1866 and the Enforcement Act of 1870) and in the anti-lynching legislation of the '20s and '30s. And of course, the federal hate-crimes laws on the books are very circumspect and limited in scope, largely for just this reason.

Now, while Jeralyn tried to limit her arguments to the matter of federal hate crimes, it must be observed that the bulk of the remainder of her arguments militate against hate-crimes laws generally, and thus against the state and local laws as well. Let's look:

There is no evidence to suggest that hate crime laws will have a deterrent effect upon hate crimes.

There's very little evidence, actually, that laws against murder have a deterrent effect on would-be killers, either. This does not mean we should not have laws against murder. Indeed, deterrence is often the weakest argument for or against any kind of law that affects punishment.

Hate-crimes laws, as we shall see, exist for a whole panoply of sound reasons, the main one being that they provide communities with the tools to confront these crimes, which are clearly different in nature and intent than their parallel crimes.

In many cases, it is very difficult to prove a hateful motivation for the criminal act. The decision to charge a hate crime as such should not be left to law enforcement. The F.B.I., for example, includes gestures and other body language in its hate crime statistics. Prosecutions to date in some cases have been based upon bigoted statements made several years before the act in question.

There's no doubt that the main point here is true: Establishing a bias motivation is unquestionably the most difficult aspect of prosecuting these cases. Indeed, the bar is extremely high, since proving this motivation requires relying on both previous statements or associations and with establishing the perpetrator's state of mind, or mens rea, at the time of the act.

Moreover, most prosecutors are reluctant to file such charges for precisely these reasons. As such, it is clear that most hate-crimes prosecutions only occur when the evidence is clear and substantial. In other words, the well-established structure of the criminal courts provides the strongest insurance against abuse or questionable prosecutions. At times this barrier may fail, but not often. This is frankly no different than in any other area of criminal law.

Finally, it is difficult to ascertain what Jeralyn means by suggesting that the decision to prosecute these crimes should not be left to law enforcement. Is she arguing that prosecutors -- who certainly are part of the law-enforcement apparatus, and almost invariably are the officials filing the charges -- should not make this choice? If not they, then who?

There are already sufficient criminal laws and penalties on the books to punish hate crimes. We should punish the act, not the thought process of the actor. If these acts are inadequately prosecuted and punished when the victim is of a minority or disadvantaged class, the answer lies in increased education and sensitization of law enforcement and the judiciary.

These are the most serious of the points that Jeralyn raises, and there are two components of it that need addressing. However, I'll address the "thought crimes" argument when it is raised again below.

First is the suggestion that current laws against the parallel crimes are adequate to the task and that hate-crimes laws intrude unnecessarily on this ground. Indeed, this identical argument was raised in the 1920s and '30s by opponents of the anti-lynching legislation that was the NAACP's raison d'etre during its early years.

Nowadays, it is proffered by such hate-crimes-law opponents as the Traditional Values Coalition and the Family Forum (who fear new laws that include sexual orientation among the categories of bias). A clearly specious version of it is the common Republican meme, "All crimes are hate crimes" -- which, fortunately, does not appear in Jeralyn's arguments, but which can be heard frequently from the likes of George W. Bush and Orrin Hatch.

It should go without saying that in fact not all crimes are alike in nature. Indeed, not even all homicides are alike; they range from second-degree manslaughter to first-degree murder. The difference among them largely stems from the circumstances of the act and from the perpetrator's mens rea. Intent and motive can be the difference between a five-year sentence and the electric chair.

Are hate crimes truly different from their parallel crimes? Quantifiably and qualitatively, the answer is yes.

The first and most clear aspect of this difference lies in the breadth of the crimes' effects. Hate crimes attack not only the immediate victim, but the target community -- Jews, blacks, gays -- to which the victim belongs. Their purpose today, just as it was in the lynching era, is to terrorize and politically oppress the target community. They resemble anti-terrorism laws in this respect as well. As Matt Welch puts it in the post that started this debate:

So, in effect, you add more punishment to those who perpetrate hate crimes because the crime targets and effects more than the immediate victim. It creates a culture of fear to which society must respond.

But this is only one aspect of how different hate crimes are from their parallel crimes. There are several more, and they are substantial. Frederick Lawrence, associate dean of the Boston University Law School, describes these differences in detail in his landmark text, Punishing Hate: Bias Crimes Under American Law (1999, Harvard University Press), which is a truly definitive text on hate-crimes laws (and from which I openly admit I draw many of my arguments, partly because I've explored these issues thoroughly through other avenues -- at one time I too was skeptical of hate-crimes laws' efficacy -- and found that Lawrence was correct in most respects, indeed in nearly every detail):

Bias crimes are far more likely to be violent than are other crimes. This is true on two levels. In the first place, crimes committed with bias motivation are dramatically more likely to involve physical assaults than do crimes generally, One study conducted in Boston found that approximately half of all bias crimes reported to the police involved assaults. This is far above the average for crimes generally, where we find that only 7 percent of all crimes reported to the police involve assaults. Secondly, bias-motivated crimes are far more likely than other assaults to involve serious physical injury to the victim. The Boston study, for example, found that nearly 75 percent of the victims of bias-motivated assaults suffered physical injury, whereas the national average for assaults generally is closer to 30 percent. …

Bias crimes are may also be distinguished from parallel crimes on the basis of their particular emotional and psychological impact on the victim. The victim of a bias crime is not attacked for a random reason -- as 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: his race [or religion, or sexual preference]. Moreover, the bias crime victim cannot reasonably minimize the risk of future attacks because he is unable to change the characteristics that made him a victim.

A bias crime thus attacks the victim not only physically but at the very core of his identity. It is an attack from which there is no escape. It is one thing to avoid the park at night because it is not safe. It is quite another to avoid certain neighborhoods because of one's race. This heightened sense of vulnerability caused by bias crimes is beyond that normally found in crime victims. Bias-crime victims have been compared to rape victims in that the physical harm associated with the crime, however great, is less significant than the powerful accompanying sense of violation. The victims of bias crimes thus tend to experience psychological symptoms such as depression or withdrawal, as well as anxiety, feelings of helplessness, and a profound sense of 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 anti-discrimination principle that have become fundamental not only to the American legal system but to American culture as well.

Not only are bias crimes substantially different in nature from their parallel crimes, there is no question that they cause substantially greater harm, so a harsher punishment is fully warranted.

Since 41 states already have hate crime laws, expanding federal laws in this area could result in double prosecution in many instances, with the federal government following up in cases where they simply do not like the results in state trials.

This is not only unlikely, under both the current and proposed federal laws, it simply cannot happen. (See the response to the first point above.) The only time that the federal government has room to move in and prosecute is if state and local authorities simply choose not to act.

The gender provision of the proposed federal expansion bill could make run-of-the-mill rape and domestic violence incidents “federal hate crimes.” The disability provision could result in basic crimes against disabled victims -- such as mugging a person in a wheelchair -- being prosecuted as “federal hate crimes.” The result risked is a trivialization of the federal criminal sanction.

This is simply so unlikely to happen as to border on being simply false. Establishing a bias motivation -- which is the core of filing a hate-crimes charge -- is, as already noted, an extremely high bar that requires more than simply a few words uttered during or before the commission of the crime. Prosecutors typically must prove several aggravating factors; they must demonstrate a pattern of behavior consistent with the bias, as well as a willingness or desire to use extreme or criminal means to act upon it. A simple mugging or rape does not meet this standard; but a gang of youths who systematically attack handicapped people over the course of a night, or a rapist who delights in terrorizing not just his victims but the community with misogynist taunts -- these do.

However, it is always possible that an out-of-control prosecutor (Kenneth Starr, perhaps?) could attempt such a case. My experience in federal courts, however, is that neither the juries nor the judges will often countenance that kind of behavior. I have heard of such flimsy cases occasionally being tried -- and many more in other areas of criminal law as well -- but fortunately, they largely end in acquittals. But this is a problem with the court system, not with the law itself.

Thought is the core value of the First Amendment’s freedom of speech clause. It is absolutely protected and any attempt to regulate it cannot be tolerated.

Do hate-crimes laws create thought crimes? The issue has certainly been addressed in the courts, notably in the definitive Supreme Court case, Wisconsin v. Mitchell:

Mitchell argues [via the First Amendment] that the Wisconsin penalty-enhancement statute is invalid because it punishes the defendant's discriminatory motive, or reason, for acting. But motive plays the same role under the Wisconsin statute as it does under federal and state antidiscrimination laws, which we have previously upheld against constitutional challenge. … Title VII, of the Civil Rights Act of 1964, for example, makes it unlawful for an employer to discriminate against an employee "because of such individual's race, color, religion, sex, or national origin." … In Hishon, we rejected the argument that Title VII infringed employers' First Amendment rights. And more recently, in R.A.V. v. St. Paul, 505 U.S. at 389-390, we cited Title VII (as well as 18 U.S.C. 242 and 42 U.S.C. 1981 and 1982) as an example of a permissible content-neutral regulation of conduct.

Nothing in our decision last Term in R.A.V. compels a different result here. That case involved a First Amendment challenge to a municipal ordinance prohibiting the use of "`fighting words' that insult, or provoke violence, `on the basis of race, color, creed, religion or gender.'" … But whereas the ordinance struck down in R.A.V. was explicitly directed at expression (i.e., "speech" or "messages"), … the statute in this case is aimed at conduct unprotected by the First Amendment.

Moreover, the Wisconsin statute singles out for enhancement bias-inspired conduct because this conduct is thought [508 U.S. 476, 488] to inflict greater individual and societal harm. For example, according to the State and its amici, bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest. … The State's desire to redress these perceived harms provides an adequate explanation for its penalty-enhancement provision over and above mere disagreement with offenders' beliefs or biases. As Blackstone said long ago, "it is but reasonable that, among crimes of different natures, those should be most severely punished which are the most destructive of the public safety and happiness."

Of course, this is William Rehnquist, but the ruling was unanimous. Nonetheless, I think Matt Singer puts more or less the same argument much more elegantly in his first post on the matter:

[T]he real answer is that hate crimes laws don't punish individuals for their thoughts. They punish individuals for acting on their thoughts in unacceptable ways, by targeting a community for violence.

Frankly, I've always found the argument that these laws are "thought crimes" to be a little creepy, since it is echoed in the claims of the Christian Right that hate-crimes laws that include sexual orientation are an attempt to impinge upon their freedom of speech. But gay-bashing is no more a free-speech right than is lynching or even, say, assassinating the president. Political thought may motivate all of them, but that doesn't mean the Constitution protects any of them.

In many cases, enhanced penalties are not even possible. In most states, the penalty for murder is life in prison, and in many, the death penalty is already available.

This is both true and untrue. It is certainly true that at the upper end of the criminal spectrum -- particularly with murder -- there is very little sentence enhancement to be obtained by trying the case under hate-crimes laws. Indeed, because the bar is so high on those laws, it is extremely rare to see a prosecutor even attempt it, especially if the evidence related to the parallel crime is overwhelming.

The most prominent example of this was the Jasper case -- James Byrd's killers were not tried under a hate-crimes law, but rather under Texas' murder law. (Because it was clearly a hate crime, the federal government was able to chip in and assist the state prosecutors who were handling the case. This is the reality of how hate-crimes laws work vis a vis the federalism issue.) However, it's worth recalling that Buford Furrow, the fellow who shot up the Jewish synagogue in Los Angeles three years ago, in fact faced both local and federal hate-crimes charges, even though his crimes neared the upper end of the spectrum.

But it is simply not true that these constitute "many" cases. In fact, murder is probably the least prosecuted of all hate-crimes charges. There are annually only a tiny handful of such cases at best. The vast bulk of hate-crimes charges involve assaults, intimidation, property crimes and vandalism.

Granting increased powers of investigation to federal officials over our thought processes to prove bias and prejudice will become exceedingly Orwellian. Do we want to authorize the subpoena of book store records so that the fact that our spouse owns, say, a copy of The Turner Diaries can be used against him or her to prove the requisite mental intent for a hate crime?

Well, I'd like to think most of us would oppose such a system were it being proposed in any fashion. However, neither current nor proposed hate-crimes laws would authorize any such invasions of our privacy. All evidence in these cases must be gathered according to the standards of any criminal prosecution.

Do we want to support laws that will increase the investigator’s search and seizure powers into the sanctity of our houses, property and personal effects, which is guaranteed to us by the Fourth Amendment to the Constitution?

This final, seemingly rhetorical question more or less repeats the same issues raised in the point previous -- and warrants the same response.

I should make it clear that I believe there are many problems with hate-crimes laws in America. The landscape is currently littered with a hodgepodge of state laws that are wildly inconsistent both in their constitutionality and their efficacy; Washington state's "malicious harassment" statute, for instance, is nearly useless and might not pass constitutional muster anyway.

And the federal statutes are currently so limited as to be useless as well. Consider, for instance, that the Justice Department has charted some 300 hate-crimes cases being either investigated or prosecuted related to anti-Muslim bias after the events of Sept. 11. Yet fewer than 10 of these so far have been charged under the 1995 federal hate-crimes law.

The most significant problem, however, is that prosecutions under these laws is wildly inconsistent and often unevenly applied. What is becoming increasingly apparent, as hate-crimes statistics are compiled, is that in rural America, hate-crimes laws go virtually unenforced -- not just by prosecutors, but by police. Minorities as a result are extremely vulnerable in these areas, and the problem, I believe, provides significant fuel for the fires of racial mistrust.

Hate-crimes laws in a sense were an unfunded mandate: Nearly everyone (41 states) passed the laws, but then failed to ensure that law-enforcement officials were given the tools to enforce them. Most of this comes down to education: Teaching LEOs how to identify hate crimes accurately and differentiate them from ordinary crimes; how to deal with the victims; and how to gather evidence. Similarly, local prosecutors, too, need to be better educated on these issues, particularly on what comprises these crimes and why they are important to pursue.

[For more reading on this point, see the Justice Research and Statistics Association's 2000 report, Improving the Quality and Accuracy of Hate Crime Reporting, as well as the Southern Poverty Law Center's damning 2002 follow-up, "Discounting Hate: Ten years after federal officials began compiling national hate crime statistics the numbers don’t add up".]

In the final analysis, all logic notwithstanding, I have to draw on my personal experience with hate crimes, their perpetrators, and their victims -- which includes the communities where they take place. And what my experience has told me is that hate-crimes laws are really about something that draws on Americans' sense of decency and fair play.

The old antilynching laws from which hate-crimes laws are descended were never approved, mostly because of the vehement opposition of the Deep South (whose senators three different times, over a 15-year period, filibustered the various versions of the legislation after it had passed the House and was headed for Senate approval). But the spirit that drove them has remained alive and resurfaced in more congenial times -- and it is a spirit, I believe, that runs deep in the American grain.

I think Fred Lawrence sums it up best in Punishing Hate [p. 169]:

Society's most cherished values will be reflected in the criminal law by applying the harshest penalties to those crimes that violate these values. There will certainly be lesser penalties for those crimes that in some respects are similar but do not violate these values. The hierarchy of societal values involved in criminal conduct will thus be reflected by the lesser crime's status as a lesser offense included within the more serious crime.

The enshrinement of racial harmony and equality among our highest values not only calls for independent punishment of racially motivated violence as a bias crime and not merely as a parallel crime; it also calls for enhanced punishment of bias crimes over parallel crimes. If bias crimes are not punished more harshly than parallel crimes, the implicit message expressed by the criminal justice system is that racial harmony and equality are not among the highest values in our society. If a racially motivated assault is punished identically to a parallel assault, the racial motivation of the bias crime is rendered largely irrelevant and thus not part of that which is condemned. The individual victim, the target community, and indeed the society at large thus suffer the twin insults akin to those suffered by the narrator of Ralph Ellison's Invisible Man. Not only has the crime itself occurred, but the underlying hatred of the crime is invisible to the eyes of the legal system. The punishment of bias crimes … therefore, is necessary for the full expression of commitment to American values of equality of treatment and opportunity.

Hate-crimes laws are indeed relatively new laws. But they represent something that I think is a long thread running through our history, something many of us almost instinctively understand -- that is, the ethical imperative to stand up against the bullies and the thugs and the nightriders, because their whole purpose is to terrorize, oppress and disenfranchise the people they deem different or "not American."

I witnessed this decency -- the only possible antidote to the obscenity preceded it -- playing out firsthand a couple of years ago, and I'll be writing about it this summer in Death on the Fourth of July (scheduled for publication in 2004). Please stay tuned.