Attorney Brian Levin says that motive should play a role in punishment enhancements for hate crimes.
Sadly, in 1998, news headlines and thousands of police reports provide continual reminders of the entrenchment of hate crimes in American society. Despite the claims of critics, hate crime laws properly respond to these uniquely dangerous crimes in a manner that is consistent with the basic aims of American law.
The concerns of naysayers would be more useful if they were presented not as a blunt axe to decimate hate crime laws, but rather as a tool to help refine them. Put simply, well-meaning critics such as James B. Jacobs and Kimberly Potter overreach in their conclusions by painting hate crime legislation as something it is not.
Hate crime laws are a constitutional and effective weapon in America's arsenal to combat criminal discrimination. Government has a special obligation to rid society of precisely the two volatile ingredients that combine to become hate crimes — a violent form of criminality on the one hand, and an act of discrimination on the other.
Hate crimes are those acts where a person or property is intentionally selected by an offender because of the actual or perceived group characteristic of another person. Hate crime laws generally protect on the basis of race, religion and ethnicity, and in some states, sexual orientation, gender and disability.
Hate crimes are a distinct category of offenses that are simply more dangerous and risky to the stability of a civilized society than other offenses. Therefore, it is thoroughly appropriate to punish them more harshly.
One reason that hate crimes are more severe is that they disproportionately involve violent attacks. Nationally, according to FBI statistics, seven out of 10 hate crimes are directed against people. Non-hate crimes, by contrast, are directed against persons only 11 percent of the time.
According to a landmark study by Northeastern University professors Jack McDevitt and Jack Levin, hate crime assaults are twice as likely to cause injury and four times as likely to result in hospitalization as assaults in general.
In addition, hate crimes are more likely than crimes not involving a discriminatory motive to involve groups of assailants, serial attacks and a heightened risk of retaliatory violence.
Hate crime laws punish not only violence but another significant evil: discrimination. Because of America's history of discrimination, government has a unique obligation to punish and deter such conduct. And it may do so without implicating free expression.
The Supreme Court has held that "[a]cts of invidious discrimination ... cause unique evils that government has a compelling interest to prevent — wholly apart from the point of view such conduct may transmit. Accordingly, like violence or other types of potentially expressive activities that produce special harms distinct from their communicative impact, such practices are entitled to no constitutional protection." Roberts v. United States Jaycees, 468 U.S. 609, 628 (1984).
The discriminatory and terroristic effect of hate crime creates fear and distrust along already fragile intergroup lines in a way that other crimes do not. When a black man is dragged to his death in Jasper, Texas, it instills terror in the entire black community. As constitutional scholar James Weinstein explains, "The effect of Kristallnacht [a night of anti-Semitic attacks in November 1938] on German Jews was greater than the sum of the damage to buildings and assaults on individual victims."
Jacobs and Potter contend that the poison is preferable to the antidote. They point out first, that politics are involved in the promulgation of hate crime laws and second, that this pits groups against each other as they fight to get their own group protected.
With regard to the first point, my answer is a resounding "so what?" Politics have always played a role in the passage of criminal laws. Society is far better off for politics having played a role not only in the passage of hate crime legislation, but in the enactment of laws on domestic violence, environmental damage and drunk driving.
Jacobs and Potter are also dead wrong on the purported divisiveness of hate crime legislation. Rather than dividing groups, they have sparked new coalitions. Organizations representing blacks, Jews, Asians, Christians, Muslims, victims, immigrants, gays, educators and police have come together to rally behind this legislation.
Each protected category is treated equally in the eyes of these laws. As Jacobs and Potter rightly point out, minorities who violently discriminate — blacks attacking whites for racial reasons, for instance — face sanctions just as whites do. That is a strength of these laws, not a weakness.
It is true that some worthy categories of people, such as those who are defined by their sexual orientation, gender or disability, often are excluded from statutory coverage. But these groups have sometimes been able to use initial versions of hate crime laws to successfully lobby for their own inclusion in subsequent legislative sessions.
Jacobs and Potter worry that hate crime laws require authorities to establish an offender's motives — something they see as a dangerous inquisition. Again, my response is, "so what?"
Motive is critical in many areas of the law. Breaking and entering only becomes burglary once it is shown that the offender intended to commit an additional crime while on someone else's property. Shooting someone who is mugging you is probably justifiable; shooting a person while you are doing the mugging is not.
Criminal law differentiates between seemingly similar conduct in other ways as well. Carrying a concealed gun on a plane and dealing drugs near schools, for instance, are punished more harshly than the same conduct elsewhere.
Jacobs and Potter worry that many hate offenders are youths or people who are not hard-core hatemongers. In fact, my research indicates that half of hate offenders are under 22, and Levin and McDevitt have shown that the majority of youthful violators are mere thrillseekers.
But it is better to specifically deter and possibly rehabilitate thrill-seeking youths with a clear message, before they graduate from breaking windows to breaking bones.
Over the last two decades, these arguments have convinced 45 states and the U.S. Congress to enact hate crime laws. In a series of cases culminating in Wisconsin v. Mitchell, 508 U.S. 476 (1993), the Supreme Court has upheld stronger punishment for discriminatory hate crimes.
In Mitchell, the justices cited the ability of hate crime enhancements to punish both discrimination and motive, and to address the severity of hate crimes. In other cases, the Supreme Court has held that evidence of an offender's motive may be taken into account without violating the First Amendment, so long as it is directly relevant to the offense.
Despite all these arguments, Jacobs' and Potter's scholarship has been important. They have furthered the debate by legitimately pointing to inadequacies in how legislation is crafted and applied. Their generally insightful arguments fail, however, when they are employed in an attempt to invalidate all hate crime initiatives, rather than to constructively refine them.
Attorney Brian Levin is an associate professor of criminal justice at the Richard Stockton College of New Jersey, where he also serves as director of the Center on Hate & Extremism. He is co-author of The Limits of Dissent: The Constitutional Status of Armed Civilian Militias (Aletheia Press, 1996) and the author of a forthcoming book, Hate and Justice in America (Aspen Publications, 1998).