One of the most pointed critiques of hate-crimes laws comes in the form of the argument that most of these statutes are products of "identity politics" in which various aggrieved minority-interest groups have been responsible for their promulgation, thereby enshrining in law an attempt to cure social ills that might be better served in other arenas, since these laws are constitutionally problematic. The most detailed and thoughtful version of this argument is made by James B. Jacobs and Kimberly Potter in their 1998 Oxford University Press book:
Hate Crimes: Criminal Law and Identity Politics
The essence of this argument appears on page 131:
- Our concern is that rewriting criminal law to take into account the racial, religious, sexual, and other identities of offenders and victims will undermine the criminal law's potential for bolstering social solidarity. By redefining crime as a facet of intergroup conflict, hate crime laws encourage citizens to think of themselves as victimized and besieged, thereby hardening each group's sense of resentment. That in turn contributes to the balkanization of American society, not to its unification.
But Jacobs' and Potter's logic is predicated on two false premises:
-- Throughout the text, they consistently describe hate crimes laws as being designed to create special "protected groups," a focus derived solely from viewing the special-interest advocacy that often spurred these laws' passage. Moreover, they consistently describe the laws as protecting only these selected groups and not everyone in society equally.
This is simply a false characterization of the laws themselves. None of these laws specify the race or ethnicity or religion of the victims -- rather, they are focused solely on the motivations of the perpetrator. A person need not be actually gay to be the victim of a gay-bashing hate crime; he need only have been perceived as gay by someone who specifically set out to assault homosexuals. This is only logical, since the terroristic motivation of the assault is present in either case.
Moreover, the laws protect everyone equally. Majority whites are victims of bias crimes too, and every year there are over a thousand prosecutions for such cases. (Indeed, the definitive Supreme Court case, Wisconsin v. Mitchell, involved a black man accused of fomenting a hate crime against a couple of white teens.) Check the FBI statistics for yourself.
Hate-crimes laws generally have three chief categories of bias motivation: racial, ethnic and religious. Some statutes include sexual orientation, others include gender bias. It's important to keep in mind that everyone has a race, an ethnicity, a religion (or even lack thereof). Everyone has a sexual orientation and a gender. This is what makes the laws generally universal and fully in tune with the equal-protection clause.
-- Secondly, their formulation also presents a false characterization of the real purpose of hate-crime laws. These laws do not redefine crime as a mere facet of intergroup conflict -- they specifically recognize that certain crimes are in fact a direct cause of intergroup conflict, and indeed worsen the divide between us. The laws are intended to close the divide, or at least prevent it from worsening. Indeed, it is specifically the failure to enact and enforce hate crime laws throughout history (and this includes their antecedents in the filibusterred-to-death antilynching laws of the 1920s and '30s) that encourages minority citizens to "think of themselves as victimized and besieged," and there is little doubt it hardens their resentment when these crimes are treated generically.
Finally, this characterization utterly evades the core purpose of these laws, reflected in their focus on the criminal instead of the victim: Namely, they are intended to give communities faced with these kinds of crimes the tools to deal with them effectively. An approach that treats hate crimes as equal in harm to their parallel crimes is utterly inadequate for this purpose.
To illustrate this, let me tell a story.
Though it is part of the lexicon now, the term “hate crime” was unknown even as recently as the early 1980s. But for those who were dealing with the remnants of white-supremacist ideology and its attendant violence, no one needed such a term. Like pornography, they knew what they were looking at when they saw it.
The first sign in northern Idaho was the fliers. No one knew who was handing them out, but several came across my editor’s desk at the Sandpoint Daily Bee in the rural Panhandle in the spring of 1979, brought in by a reporter on his rounds or an ad salesman who had picked it up around town. They were crude mimeographs, and even cruder humor: An “Official Running Nigger Target,” it was labeled. It showed a cartoon silhouette of a black man with a large Afro and monstrous lips, sprinting, arms akimbo, in apparent full flight. Numbers designated different scores for different parts of the anatomy, with a relatively low score for a head shot, and the highest score for hitting his feet.
There was never a shortage of crackpots in the Idaho backwoods, and normally a sheet like that would have disappeared into the round file. But the sentiments behind it were so nakedly hateful, and the violence it condoned was disturbing. I tucked it into a special file I was keeping.
No one knew for sure who was behind the fliers, but we had a pretty good idea. Just down the road from Sandpoint, about 40 minutes’ drive south, a group of fringe dwellers from Southern California who called themselves the Church of Jesus Christ-Christian had purchased a wooded parcel near Hayden Lake, set up a compound, and began calling it the “Aryan Nations.” The church’s leader, Richard Butler, promised to be a good neighbor, but there were reports of cross burnings at the compound; and then Butler began advertising his call for other like-minded supremacists to move to northern Idaho and create what he envisioned as a “white homeland.”
This was the shabby state into which the ideology of white supremacy, once the dominant worldview of white Americans, had declined: Forced into exile in a shabby backwoods lot, shouting its defiance at the rest of the world, and vowing impotently to wreak vengeance on us. Where once Butler’s claims that African-Americans were a subhuman species bent on the destruction of whites might have been roundly applauded, now they only confirmed his status as a social pariah.
At the time, Butler’s pronouncements were generally dismissed as lunacy by those of us in the mainstream press, including his call for a “white homeland” -- after all, northern Idaho couldn’t have become much more white than it already was. But what none of us anticipated was that even though the numbers that Butler recruited were generally small, their impact on the community was dramatic. Many of the people who moved to settle in the new “white homeland” were ex-cons, recruited into white supremacy while in prison. Others were radical ideologues who were fully inclined to take to heart Butler’s urgings to engage in a “race war” -- guys like Robert Mathews, who moved to nearby Metaline Falls in northeastern Washington to be near to Butler’s church, and found work at the local mines.
And they were changing the face of the northern Idaho community. The region was historically considered among the more liberal precincts in the state, particularly compared to the Mormon-dominated southern half; mining- and timber-rich northern Idaho had a long history of labor activism dating back to the previous century, and in fact had played a key role in the development of radical labor organizations like the Industrial Workers of the World. Now, an undercurrent of reactionary sentiment latent in the landscape (the region had also been home to a number of Confederate Army veterans who settled there after the Civil War), brought to life by the Aryan Nations, began to manifest itself in ugly ways. The file I was keeping at the Daily Bee was an attempt to keep track.
At first, it cropped up in nasty but relatively harmless ways, like the “running nigger” fliers -- hateful, but hardly criminal. Then it began crossing the line:
-- A Jewish restaurateur in Hayden found his business vandalized with anti-Semitic graffiti and swastikas, as well as a sticker with the message, “Do Not Patronize This Place.”
-- A Hispanic family in Coeur d’Alene, some 15 miles south of Hayden, was terrorized by someone calling late at night and making death threats; when they refused to leave, someone tried to set fire to their trailer, then killed their dog by slashing its throat. The family packed up and left.
-- A cluster of young thugs associated with the Aryan Nations assaulted a pair of teenagers (a minority boy and a white girl) outside a bowling alley.
-- Crosses were left burning on the lawns of two area families. One of these was an all-white family who, police believe, were targeted mistakenly.
-- A Baptist church and a printing business in Coeur d’Alene were both defaced with swastikas.
The threats and intimidation came to a head in September 1982, thanks largely to one of the more troublesome hooligans attracted to northern Idaho by Butler’s church: an ex-convict named Keith Gilbert. He had moved to the region after doing time at California’s San Quentin prison for having 1,500 pounds of dynamite at his Glendale home, which he later claimed was intended to assassinate Martin Luther King at a 1965 appearance in Los Angeles. Gilbert had been a follower of Butler’s in California, but shortly after moving to Idaho they had a dispute, and Gilbert attempted to set up his own white-supremacist organization. Gilbert, who later admitted responsibility for distributing the “running nigger” targets, then began his own campaign of threats and intimidation.
His chief target was a Coeur d’Alene family headed by a white woman named Connie Fort who had been married for several years to a black man and had three mixed-race children. Gilbert began by walking up to the eldest boy and spitting on him, saying: “Your life is condemned. You shall be served in front of the devil.” Having discovered where Fort’s family lived, Gilbert began driving by the home and shouting threats and obscenities at the children. He mailed an envelope containing a death threat for “race traitors” who engaged in “miscegenation.” Another mailing contained a news clipping about the corpse of a black man found floating in Spirit Lake, shot through the head.
Police were initially hesitant to charge Gilbert, partly because Idaho law made racial slander only a misdemeanor. But as the threats escalated, he eventually was charged and convicted of misdemeanor assault, and fined $300 with a 45-day jail sentence. Gilbert merely laughed it off.
The rest of the community, however, did not. Local churches circulated petitions in support of Connie Fort’s family and managed to gather hundreds of signatures. And Fort herself decided that something had to be done about the failure of Idaho law to adequately address this kind of hateful harassment. The previous year, a coalition of church leaders, city and law-enforcement officials, and businessmen from throughout the county had already formed, calling itself the Kootenai County Human Relations Task Force. As Fort’s story gained publicity in the local press, the KCHRTF took up the task of gaining public support for changing the law. It organized town-hall meetings to discuss the issue, and found that its support was deep and broad; at a panel discussion set up by the Idaho Human Rights Commission in 1982, other participants included the Justice Department, the American Civil Liberties Union, and law-enforcement officers.
Out of those discussions, the Human Rights Commission composed legislation -- similar to a law just passed in Washington state, also largely in response to the activities emanating from the Aryan Nations -- that would make it a felony to intimidate or harass another person because of their race or religion, either with physical assault or with threatening words. The bill was introduced in the Idaho Legislature’s 1983 with considerable fanfare, and its advocates claimed the support of over a hundred voluntary organizations in the state that supported its passage.
However, the bill encountered considerable opposition among legislators from the state’s notoriously conservative southern half. Many voiced concern that the law would trample on constitutional rights to religious freedom and free speech. Others accused the sponsors of secretly supporting the United Nations genocide convention. Richard Butler testified against it: “This bill would take away sovereign, inalienable rights of white Christians,” he told legislators.
The tide slowly turned in the bill’s favor, however, as the breadth of support for it became apparent. Kootenai County Prosecutor Glen Walker -- a conservative Republican -- traveled to Boise and patiently explained to lawmakers why the law was needed, particularly as a tool for dealing with a kind of crime they all recognized had deeply corrosive consequences for their community. Walker also shepherded several compromises to the legislation, including a clause that would specify it was not intended to imply support for the United Nations.
The coup de grace, however, was delivered by Keith Gilbert himself. He created a phony “Anti Defamation League” lobby, concocted a letterhead and a nonexistent leader named “Rabbi Schechter,” and sent letters to all member of the Legislature under “Schechter’s” signature voicing full support for the bill. Gilbert assumed that such “Jewish” support would inspire legislators to oppose the measure -- but his ruse was discovered and publicized instead. Angered by his brazenness, legislators rushed to support the bill, and it wound up passing handily.
Idaho thus became the ninth state in the nation to pass what would become known as a hate-crime law. California was the first to do so, in 1978; Washington and Oregon followed suit in 1981, while Alaska, New York, Rhode Island and Pennsylvania passed similar laws in 1982. By 1998, 45 states had passed such laws.
As in Idaho, many of these states had found that even though white supremacy, culturally speaking, had been relegated to the fringes of society, its remaining adherents were every bit as willing to resort to violence to achieve their ends as they were in the days of the lynch mob. And it was also clear that the violent crimes that resulted were not ordinary assaults and murders and threats, but they had several special qualities to them. For one, they were inherently more violent, and much more likely to result in severe harm. More significantly, they clearly victimized not just the immediate sufferer, but the larger racial, ethnic or religious community to which that person belonged -- and that in many cases, that was exactly what the perpetrators intended, as a way of “putting them in their place.” This not only extended the reach of these crimes, but it made clear that they were perniciously anti-democratic, and clearly destructive in a society supposedly dedicated to racial justice and equality.
The laws were passed in Idaho not because of any agitation by special-interest minorities, but by a grass-roots demand from the communities themselves. They arose, as it were, from the kind of common-sense decency that has always been an embedded element of American law.