Attorneys and authors James B. Jacobs and Kimberly Potter believe hate crime legislation is unnecessary — and sets troublesome legal precedent.
In our recent book, Hate Crimes: Criminal Law & Identity Politics, we argue that the recent wave of hate crime legislation that enhances a criminal sentence if the perpetrator was motivated by certain prejudices, although well-intentioned, is unnecessary and perhaps even counterproductive. Here are a few of our main points.
One might argue that all or much violent crime and some property crime involves prejudices of one kind or another, against people based on looks, perceived wealth, vulnerability, age and so on. Choosing certain offender prejudices for more severe punishment inevitably elevates the plight and pain of some victims above others and creates a counterproductive competition among groups to have their victimization recognized in hate crime statutes.
Hate crime laws assume that the greater the harm to offenders, the greater the good to victims. But viewing the allotment of punishment as a confirmation of the social and political standing of the victim groups leads to a status competition between victim groups where the losers feel cheated by the lesser penalties their offenders receive. Moreover, the idea that groups chosen for inclusion in hate crime laws will benefit from the offenders' increased punishment is often not true.
Some hate crime laws, for instance, do not recognize crime motivated by gender or sexual orientation prejudice. Thus, the politics of hate crime legislation has touched off angry charges of hypocrisy and insensitivity. Instead of uniting us in the war against crime, they have provided one more thing to fight about.
Typically, hate crime laws are viewed as tools to protect minorities, but the model of white male discriminators and minority victims does not always fit. In fact, crime is predominantly intra-racial, and the perpetrator of inter-racial crime is more likely to be a member of a minority group than a member of the racial majority.
For example, the defendant in Wisconsin v. Mitchell, the Supreme Court case which upheld the constitutionality of hate crime enhancements, was a black youth who was sentenced three times more severely than a generic assault offender because his motivation was anti-white prejudice.
Any definition of hate crime requires a causal connection between the offender's prejudiced motivation and his conduct. How much of a connection? On the one hand, if laws includes only those crimes wholly or predominantly motivated by prejudice, there will be very few hate crimes. On the other, if hate crime includes all crime that is motivated even partly by prejudice, practically every inter-group crime ought to be investigated as a potential hate crime.
Some hate crime statutes speak in terms of manifest prejudice — the prejudice motivation must be obvious, as with an epithet or a cross burning. Other states permit the prosecutor to prove prejudice by background evidence, perhaps the defendant's affiliations, friends, tattoos, jokes or conversations.
But the first kind of statute enables a hard-core racist to avoid the enhancement simply by committing his crime silently. Indeed, Tom Metzger, head of the white supremacist White Aryan Resistance, advises followers that hate crime charges can be avoided by remaining silent.
The second type, using background evidence, opens the way for a wide-ranging inquisition of the defendant's character. Are we confident that trials focusing on the defendant's prejudice will not serve to create First Amendment martyrs?
Because of the inherent subjectivity of the concept of hate crime, there is an enormous gap between the kinds of criminals who hate crime law proponents envision and those who are actually prosecuted. Backers of hate crime laws picture neo-Nazis committing vicious, ideologically driven acts of violence. But even in the absence of hate crime laws, such offenders face the severest possible punishments.
In reality, hate crime laws are most often enforced against Archie Bunker-type defendants whose prejudice has bubbled to the surface during an argument over a parking space or a campsite, or with a neighbor. The majority of persons arrested for hate crimes are juveniles who may well be confused, mentally unstable or sociopathic. But they are not ideologically driven racists.
Hate crime enhancements make a difference in the way we punish otherwise minor crimes like graffiti or vandalism, which are the most frequently counted hate crimes. Should hate crime graffiti or vandalism be punished more severely than ordinary graffiti or vandalism? If so, how much more severely? Which expressions transform ordinary graffiti into hate crime graffiti?
Should a person who paints a swastika on a car be punished more severely than one who splashes paint on a car or who writes "f—k you," "down with Republicans" or "abortion is murder?" Do we want to generate a sentencing system based upon a subjective hierarchy of the vileness of terms and symbols?
Imprisoning hate graffiti and vandalism offenders who would not otherwise be incarcerated may deter a certain amount of graffiti and vandalism, or at least make it less explicit. But ironically, it also may result in low-level and juvenile offenders becoming more prejudiced.
Prisons and jails are probably the most virulently racist environments in U.S. society. Some of our most racist organizations originated in prison; others are nourished in prison and their ranks are swelled by ex-offenders. Are we confident that we accomplish something positive by sending vandalism and graffiti offenders to prison or giving them longer terms explicitly on account of their prejudices?
Hate crime laws are a species of symbolic legislation. Politicians are glad to send a message that they condemn racists and bigots — unless, of course, the victim category is controversial, as in the case of sexual orientation.
It's easy to pass a law and hope it solves a problem, but the fact is once hate crime laws are passed, they are quickly forgotten and rarely used. It seems doubtful that the criminal law can solve the serious social problem of bigotry and prejudice. Prejudice criminals are a problem, but criminals are a problem by definition.
A criminal justice system tainted by prejudice and bias is destructive to the whole democracy project. Elimination of racism and prejudice in policing, prosecuting and sentencing should be a top priority for our society.
It would be a travesty if symbolic gestures like hate crime laws were to divert us from the hard work of institution-building in tolerance, and particularly the hard work of creating and sustaining even-handed, nonbiased criminal justice institutions.
James B. Jacobs is director of New York University's Center for Research in Crime and Justice and a law professor at the NYU School of Law. Kimberly Potter, formerly a senior research fellow at NYU's Center for Research in Crime and Justice, is now in private law practice in Bronxville, N.Y. Jacobs and Potter are the authors of Hate Crimes: Criminal Law and Identity Politics (Oxford University Press, 1998).