The social consequences of race

Hate Crimes: A Critical Perspective Author(s): James B. Jacobs and Kimberly A. Potter Source: Crime and Justice, Vol. 22 (1997), pp. 1-50 Published by: The University of Chicago Press Stable URL: http://www.jstor.org/stable/1147570 Accessed: 27/12/2009 17:36

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The social consequences of race

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James B. Jacobs and Kimberly A. Potter

Hate Crimes: A Critical

Perspective

ABSTRACT

During the past decade, spurred by claims that the country is experiencing a hate crime epidemic, Congress and the majority of states have enacted laws increasing the punishment for crimes motivated by officially disfavored prejudices. Congress has also mandated a reporting system that aims to provide data on the incidence of hate crime. Some police departments have formed bias crime units. The upshot is the emergence of a new crime category and a new way to think about crime. The definition of hate crime, however, is fraught with problems, the federal data gathering effort has been completely unsuccessful, and enforcement of the hate crime laws has been minimal. Creation of a hate crime category fills political and symbolic functions but is unlikely to provide a useful indication of the state of various prejudices or to reduce crime generated by prejudice. Indeed, deconstructing criminal law according to the dictates of “identity politics” might exacerbate social divisions and conflict.

The terms “hate crime” or “bias crime” have established their places in the crime and justice lexicon and appear routinely in the media, scholarly journals, legislation, and judicial opinions. Many advocacy groups, politicians, scholars, and journalists claim that the country is

experiencing a hate crime epidemic. A majority of states have enacted substantive hate crime laws or sentence enhancements for crimes moti- vated by officially disfavored prejudices. A few large police depart- ments have formed bias crime units for investigative and data compila- tion purposes. In 1990, Congress directed the Department of Justice to provide a nationwide accounting of hate crimes.

James B. Jacobs is professor of law at New York University School of Law and direc- tor of its Center for Research in Crime and Justice. Kimberly A. Potter is a senior re- search fellow at the Center. The authors thank David Garland for his comments.

James B. Jacobs and Kimberly A. Potter

The goals of this essay are to assess the definition of “hate crime,” to present what is known about its incidence, and to analyze how the criminal justice system is adapting to this new offense. Because hate crime is a legal construct, and one that varies from jurisdiction to juris- diction, it is necessary to spend a good deal of time with definitions.

Only after that groundwork is laid, does it make sense to ask empirical questions. Section I examines the concept of hate crime. Section II sur-

veys different types of hate crime laws. Section III examines First Amendment objections to hate crime laws. Section IV presents what is known about the incidence of hate crime offending, emphasizing the difficulties involved in reliable data collection. Section V focuses on a number of different species of offending, offenders, and victims. Sec- tion VI examines the practical problems faced by police and prosecu- tors in investigating and prosecuting hate crime cases. Section VII

speculates on the sociopolitical significance of this new category of crime. Section VIII offers a summary and conclusions.

I. What Is Hate Crime? The term “hate crime” is a misnomer. The term actually refers to criminal behavior motivated, not by hate, but by prejudice, although there is undoubtedly some overlap. Generically, “hate crime” is meant to distinguish criminal conduct motivated by prejudices from criminal conduct motivated by lust, jealousy, greed, politics, and so forth. Un- like theft, burglary, or assault, hate crime emphasizes the offender’s at- titudes, values, and character. Lobbyists for special hate crime laws be- lieve that prejudice is worse than all other criminal motivations (Crocker 1992/93, pp. 491-94).

Whereas the classical and the neoclassical models of criminal justice focus on the crime rather than the criminal, the movement to recog- nize and label hate crimes strives to make criminals’ motivations salient and determinative. Hate crime laws condemn discrimination by crimi- nals in the same way that Title VII of the Federal Equal Employment Opportunity Act condemns discrimination by public and private em-

ployers. For some people, the importance of a hate crime offense category is

that it condemns in the moralistic language of the criminal law values and attitudes already condemned via employment, voting rights, and constitutional laws. For others, hate crime laws are important because

they punish prejudiced offenders more severely than other offenders who have less abhorrent motivations. Finally, in the context of the

Hate Crimes 3

identity politics that characterize contemporary American society (Bernstein 1994; Gitlin 1995), minority groups perceive it to be in their interest to emphasize and even exaggerate their victimization

(Epstein 1989, p. 20; Jacobs 1992/93, pp. 542-43; Sykes 1992; Sleeper 1993).

At some level of abstraction all crime, or at least a great deal of it, could be said to be motivated by manifest or latent prejudice-against victims because they are tall, short, rich, poor, good-looking, bad-

looking, cocky, vulnerable, smart, dumb, members of one gang or an-

other, and so forth. In contemporary American society, however, certain

prejudices are officially disfavored-especially those based on race and

religion. All hate crime laws include prejudice based on race, color, reli-

gion, and national origin (Wang 1995, app. B). However, only eighteen states and the District of Columbia include gender or sexual orientation bias as a hate crime trigger. Prejudice against Native Americans, immi-

grants, the physically and mentally handicapped, union members, non- union members, right-to-lifers, and those advocating the right to choose are hardly ever included in hate crime laws (Wang 1995, app. B). Some states punish criminal conduct based on uncommon prejudices such as

against service in the armed forces (Vermont Stat. Ann. tit. 13, ? 1455) or “involvement in civil rights or human rights activities” (Mont. Code Ann.

?? 45-5-221). The District of Columbia has the most all encompassing hate crime statute; it covers religion, national origin, gender and sexual

orientation, “personal appearance,” “family responsibility,” “marital sta- tus,” and “matriculation.” Clearly, the boundaries of hate crime legisla- tion are fixed by political decision rather than by any logical or legal ratio- nale.

A. The Nature of Prejudice What does it mean to say that criminal conduct is motivated by preju-

dice? Prejudice is an extremely complicated concept which has gener- ated substantial social psychological, philosophical, and other scholarly literatures (Allport 1954; Van Til 1959; Gioseffi 1993).1 A simple definition of prejudice is “a negative attitude or opinion about a partic-

1 “Prejudice is not a unitary phenomenon … it will take varying forms in different

individuals. Socially and psychologically, attitudes differ depending upon whether they are the result of deep-seated personality characteristics, sometimes of the pathological nature, of a traumatic experience, or whether they simply represent conformity to an established norm” (International Encyclopedia of the Social Sciences 1968, s.v. “Prejudice,” p. 444).

James B. Jacobs and Kimberly A. Potter

ular group or class of people” (International Encyclopedia of the Social Sci- ences 1968, pp. 439-40). Some commentators would include “irratio- nal” as well. It can result from experience or from fantasies and myths (Ehrlich 1973, p. 15). It can be based partly on fact, or it can be com-

pletely fictional. Some people admit to their prejudices, and even es-

pouse them as ideologies. Others deny their prejudices, sometimes be- cause they do not recognize them and sometimes because they are ashamed of them. Prejudice can be “subconscious” as well as “con- scious.”2 Not infrequently, whether a particular belief or attitude should be labeled as prejudice is a matter on which reasonable people can differ (e.g., Is Z prejudiced if he believes that blacks are more likely to have out-of-wedlock children than whites and Asians and therefore to raise their children less satisfactorily?).

There seems to be no agreement on whether “prejudice” includes a

negative attitude toward a people which is based in fact (e.g., X does not like or wish to associate with Libyans, because of their govern- ment’s sponsorship of international terrorism). Would it be a hate crime if X decided to rob only elderly Asian women because he be- lieved they were likely to resist less than other elderly women? If the definition of prejudice is broad enough, practically everyone could be called prejudiced, or to put the matter differently, practically everyone could be said to hold some prejudiced beliefs and opinions. If so, then

every crime in which the perpetrator and victim are members of differ- ent groups could potentially be labeled a hate crime.

B. Causality For criminal conduct to constitute a hate crime it must be motivated

by prejudice; that is, the criminal conduct must be causally related to the prejudice. How strong must that causal relationship be? Must the criminal conduct have been wholly, primarily, or slightly motivated by the disfavored prejudice? The answer determines how much hate crime there is. If a hate crime must have been wholly motivated by prej- udice, there will be only a very small number of hate crimes-those

2 “Americans share a common historical and cultural heritage in which racism played and still plays a dominant role. Because of this shared experience, we also inevitably share many attitudes and beliefs that attach significance to an individual’s race and in- duce negative feelings and opinions about non-whites. To the extent that this cultural belief system has influenced all of us, we are all racists. At the same time, most of us are unaware of our racism…. In other words, a large part of the behavior that produces racial discrimination is influenced by unconscious racial motivation” (Lawrence 1987, p. 322).

Hate Crimes 5

perpetrated by individuals whose prejudice amounts to an ideology or

perhaps an obsession. By contrast, if a hate crime must have been only in part motivated by prejudice, a significant percentage (possibly nearly all) of intergroup crimes is potentially classifiable as hate crime.

What percentage of robberies by black perpetrators against white victims might be classified as hate crime if the key question is whether the robbery or choice of robbery victim was in part attributable to anti- white prejudice? What percentage of violence by males against females

ought to be investigated as possible hate crime if the critical question is whether the perpetrator was in part motivated by prejudice against women?

II. Types of Hate Crime Laws As of spring 1996, the federal government, thirty-six states, and the District of Columbia have passed hate crime laws that fall into three

categories: substantive crimes, sentence enhancements, and reporting statutes. (We exclude antimask and religious vandalism statutes.)

A. Substantive Hate Crimes The majority of substantive hate crime statutes are based on the Anti-

Defamation League’s (ADL) Model Hate Crime Law, which estab- lishes a separate “intimidation” offense:

A person commits the crime of intimidation, if, by reason of actual or perceived race, color, religion, national origin or sexual orientation of another individual or group of individuals, he violates Section of the Penal code (insert code provision for criminal trespass, criminal mischief, harassment, menacing, assault and/or other appropriate statutorily proscribed criminal conduct). Intimidation is a misdemeanor/felony (the degree of the criminal liability should be at least one degree more serious than that imposed for commission of the offense). (Anti- Defamation League 1992, p. 4)

“Intimidation” is the only prosecutable hate crime under the ADL model law. Thus, in the “ADL states,” hate crimes are low-level of- fenses, not the savage violence of organized terror groups but the shoves, pushes, and insults that result from frictions between ordinary, albeit prejudiced people, in a multiethnic, multiracial, multireligious, sexually diverse, and gendered society.

James B. Jacobs and Kimberly A. Potter

States’ hate crime laws differ, not only with respect to which preju- dices transform “ordinary” crime into hate crime, but according to which predicate crimes, when motivated by prejudice, qualify as hate crimes. In Pennsylvania and Vermont, for example, any offense is a hate crime if motivated by race, religion, national origin, and so forth

(Pa. Cons. Stat. ? 2710[a]; Vt. Stat. Ann. tit. 13, ? 1455). Other states limit hate crimes to certain predicate offenses when motivated by a dis- favored prejudice. For example, in New Jersey only simple assault and harassment, when motivated by prejudice, are classified as hate crimes

(NJ. Stat. Ann. ? 2C:12-1). Illinois designates nine predicate offenses: assault, battery, aggravated assault, misdemeanor theft, criminal tres-

pass to residence, misdemeanor criminal damage to property, criminal

trespass to vehicle, criminal trespass to real property, and mob action (Ill. Juris. Crim. Law & Proc. ? 61:02).

Oregon provides that a person commits intimidation in the second

degree, a misdemeanor, when the offender tampers or interferes with

property or subjects an individual to alarm by threatening harm to the individual or his or her property or to a member of the individual’s

family by reason of race, color, religion, national origin, or sexual ori- entation. Where the offender causes physical injury to an individual or his or her property or places an individual in fear of imminent serious

physical injury by reason of these characteristics, intimidation becomes a felony (Ore. Rev. Stat. Ann. ? 166.155[1][c]).

Most hate crime laws (and sentencing enhancement provisions) do not employ the word “motivation.” Instead, they speak of a person who commits an offense “because of’ or “by reason of’ one of the disfavored prejudices. The Washington, D.C., and Florida laws require that the offense “demonstrate prejudice” (D.C. Code Ann. ? 22-4001; Fla. Stat. Ann. ? 775.085[1]). Some jurisdictions make it an offense (or an aggravating sentencing factor) for a perpetrator to select a victim by reason of race, religion, and so forth (Ore. Rev. Stat. Ann. ? 166.155 [1][c]; Cal. Penal Code ?? 422.6, 422.7), or to “intentionally select” the victim based on race (Wisc. Stat. Ann. ? 939.645[1][b]). Read liter-

ally, this type of statute does not even require a showing of prejudice. Consider a defendant who selected his victim, say, an Asian man, be- cause someone who had just seen the defendant’s car broken into told him that the thief was an Asian man, so the defendant attacked the

only Asian person in sight. The defendant, although not necessarily prejudiced against Asians, would be guilty of a hate crime because he selected the victim “by reason of’ race. If the statute is not meant to

Hate Crimes 7

cover this situation (which seems likely), then it is no different than a statute that explicitly requires a bias motivation. Professor Lu-in

Wang, author of the only legal treatise on hate crime, explains that state courts have uniformly interpreted hate crime statutes to require proof of a prejudiced motive (Wang 1995, chap. 10, pp. 16, 34-35).

B. Hate Crime Sentence Enhancement A second genre of hate crime law is comprised of statutes that pro-

vide sentence enhancements for prejudice-motivated crimes (Wang 1995, chap. 10, p. 22). These statutes either upgrade an existing offense

(e.g., Fla. Stat. Ann. ? 775.085[1]; Wang 1995, chap. 10, p. 11) or in- crease the maximum penalty for offenses motivated by prejudice (Wang 1995, chap. 10, p. 11; NJ. Stat. Ann. ?? 2C:43-7, 2C:44-3). The enhancement may apply to all or just to some predicate crimes. Under the Pennsylvania statute, for example, the bias offender is

charged with a crime one degree higher than the predicate offense (Pa. Cons. Stat. ? 2710[a]). Vermont’s statute doubles the maximum prison term for bias-motivated crimes; if the maximum term is five years or

more, the defendant’s bias motivation becomes a factor for consider- ation by the judge at sentencing (Vt. Stat. Ann. tit. 13, ? 1455). In Minnesota, the only bias-motivated crimes subject to enhanced pun- ishment are harassment and stalking (Minn. Stat. Ann. ? 609.749). In

contrast, Nevada makes twenty crimes subject to enhanced sentences

(Nev. Rev. Stat. Ann ? 207.185). Florida subjects any bias-motivated

felony or misdemeanor to enhanced punishment (Fla. Stat. Ann.

775.085[1]). State laws vary with respect to the magnitude of the enhancement

for bias motivation. The aggravated battery statute before the Supreme Court in Wisconsin v. Mitchell, 113 S. Ct. 2194 (1993), provided for a

two-year maximum prison term, but if the perpetrator was motivated

by one of the enumerated prejudices, the maximum punishment soared to seven years.

The federal Violent Crime Control and Law Enforcement Act of 1994 (Pub. L. No. 102-322) mandated a revision of the U.S. sentenc-

ing guidelines to provide an enhancement for hate crimes of three of- fense levels above the base level for the underlying offense. The guide- line provides: “If the finder of fact at trial or, in the case of a guilty plea,… the court at sentencing determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense because of the actual or perceived race, color,

James B. Jacobs and Kimberly A. Potter

religion, national origin, ethnicity, gender [not applicable for sex

crimes], disability, or sexual orientation of any person, an additional 3- level enhancement from [the base level offense] will apply” (60 Fed. Reg., May 10, 1995, p. 25,082; emphasis added). In the case of aggravated assault, for example, the ordinary base level offense of 15 is elevated to 18 and the sentencing range is consequently elevated from eighteen- twenty-four months to twenty-seven-thirty-three months imprison- ment.

C. Hate Crime Reporting Statutes

Many states, as well as the federal government, have enacted hate crime data collection and reporting statutes to generate statistics on the incidence of hate crime (Wang 1995, app. B). Ultimately, these re-

porting statutes may have more importance than the substantive laws and sentence enhancement statutes. The old sociological adage “what’s

counted, counts” suggests that the hate crime reporting statutes will

reshape the way that Americans think about crime. The federal Hate Crime Statistics Act of 1990 (HCSA), 28 U.S.C.

? 534 (Supp. IV 1992), mandates the collection of nationwide hate crime data in order to help communities, legislatures, and law enforce- ment personnel appropriately respond to the problem by gathering in- formation on the frequency, location, extent, and patterns of hate crime; increase law enforcement’s awareness of and sensitivity to hate crimes in order to improve its response; raise public awareness of the existence of hate crimes; and send a message that the federal govern- ment is concerned about hate crime (U.S. Senate 1989, p. 3).

The Act directs the U.S. Department of Justice to collect and report data on hate crimes involving the predicate offenses of murder, non-

negligent manslaughter, forcible rape,3 aggravated assault, simple as- sault, intimidation, arson, and destruction, damage, or vandalism of

property (28 U.S.C. ? 534 [Supp. IV 1992]). The attorney general, given discretion by the Act to add to or delete from the list of predicate crimes, added robbery, burglary, and motor vehicle theft (Federal Bu- reau of Investigation 1990, p. 4).

The HCSA defines a hate crime as “a criminal offense committed

against a person or property, which is motivated, in whole or in part, by the offender’s bias against a race, religion, ethnic/national origin group, or sexual orientation group.” The FBI guidelines implementing

3 The hate crime sentencing guideline is explicitly inapplicable to sex crimes.

Hate Crimes 9

the act define “bias” as “a preformed negative opinion or attitude toward a group of persons based on their race, religion, ethnicity/national origin, or sexual orientation” (emphasis added). According to this broad definition, most interracial and other intergroup crimes could be classified as (or certainly be investigated as possible) hate crimes.

The guidelines, although quite thorough, leave much ambiguity. For

example, what is meant by “ethnic group or national origin”? Are

“Hispanics” or “Latinos” counted as one group for purposes of the HCSA? Would an assault by a Cuban against a Colombian count as a hate crime if the assailant was motivated by a belief that Colombians are importing drugs into the community? Are “Asians” (e.g., Syrians, Indians, Vietnamese, Filipinos, Chinese, and Japanese) an ethnic

group? Could conflicts between Chinese-Americans and Vietnamese- Americans or between Palestinians and Kuwaitis qualify as hate crimes?

III. Hate Speech, Hate Crime, and the First Amendment

Defining hate crimes and punishing hate criminals is akin to, but dis- tinct from, the move to criminalize hate speech (Walker 1994; Schweitzer 1995). The anti-hate speech movement asserts that certain kinds of racist, sexist, anti-Semitic, misogynistic, and homophobic ex-

pressions and epithets impose emotional damage on persons to whom

they are addressed and to other members of the groups to which these

persons belong. Therefore, proponents of hate speech restrictions urge that such expressions and epithets be prohibited and that those who utter them be punished (Matsuda 1989; Lawrence 1990). However, hate speech laws have not fared well in the courts, which have declared them unconstitutional on First Amendment grounds (Doe v. University of Michigan, 721 F. Supp. 852 [1989] [declaring unconstitutional cam-

pus hate speech code]; UWM Post v. Board of Regents of the University of Wisconsin, 774 F. Supp. 1163 [1991] [declaring unconstitutional cam-

pus hate speech code]). There is a lively debate among constitutional lawyers and civil liber-

tarians over whether hate crime laws, like hate speech laws, should flunk a First Amendment test (Fleischauer 1990; Gellman 1991, 1992/93; Redish 1992; Gaumer 1994). Those who believe hate crime laws to be constitutional emphasize the familiar speech/conduct distinction in First Amendment law; people are entitled to speak their minds but not to impose physical harm on others in acting out their opinions (Crocker 1992/93, pp. 495-500). They argue that while an individual

10 James B. Jacobs and Kimberly A. Potter

has a right to his bigoted thoughts, he has no right to act on them.

According to this view, hate crime laws punish antisocial conduct just as Title VII provides a remedy against employment discrimination.

Those who believe hate crime laws to be unconstitutional argue that

generic criminal law already punishes injurious conduct and that re- criminalization or sentence enhancement for the same offense when it is motivated by prejudice amounts to extra punishment for values,

thoughts, and opinions which the government deems abhorrent (Free- man 1992/93; Gellman 1992/93; Goldberger 1992/93). These critics ask: if the purpose of hate crimes is to punish more severely offenders who are motivated by disfavored prejudices, is that not equivalent to

punishment for “improper thinking?” For example, suppose there are two defendants: A is a white supremacist who only robs black men; B is a communist who only robs rich people. Under the typical hate crime statute, B would be convicted of robbery, while A would be con- victed of a hate crime or be subject to a sentence enhancement.

A few scholars have sought to distinguish between different formula- tions of hate crime offenses (Crocker 1992/93, pp. 495-500; Freeman

1992/93, pp. 582-83). They argue that a hate crime statute that does not use the word “motivation,” but that prohibits selection of a victim because of or by reason of the victim’s race, religion, or sexual orientation and so forth, has nothing to do with punishing ideas or speech, but

punishes conduct. While there may be something to this subtle analyt- ical distinction, most commentators and courts have treated such stat- utes as requiring proof of prejudiced motivation.

The U.S. Supreme Court so far has struck down one hate crime stat- ute and approved one. In R.A.V. v. City of St. Paul, 112 S. Ct. 2538

(1992), the Supreme Court was faced with a constitutional challenge to a local ordinance which provided that “whoever places on public or

private property a symbol, object, appellation, characterization or graf- fiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, reli-

gion or gender commits disorderly conduct and shall be guilty of a misdemeanor” (112 S. Ct. at 2541). R.A.V., a white juvenile, was con- victed under the ordinance for burning a cross on a black family’s lawn. The justices unanimously agreed that the ordinance violated the First

Amendment, but there were at least two different rationales.4 Justice

4 The majority opinion was joined by Justices Scalia, Kennedy, Souter, Thomas, and Chief Justice Rehnquist. Justices Blackmun and Stevens filed concurring opinions, in

Hate Crimes 11

Scalia’s majority opinion pointed out that while the government could criminalize constitutionally unprotected “fighting words” (the ordi- nance applied only to fighting words), it could not criminalize only those fighting words of which the government disapproved. Thus, “the reason why fighting words are categorically excluded from the protec- tion of the First Amendment is not that their content communicates any particular idea, but that their content embodies a particularly in- tolerable . . . mode of expressing whatever idea the speaker wishes to convey. St. Paul has not singled out an especially offensive mode of expression…. Rather, it has proscribed fighting words of whatever manner that communicate messages of racial, gender or religious intol- erance. Selectivity of this sort creates the possibility that the city is seeking to handicap the expression of particular ideas” (112 S. Ct. at 2549).

Justice White’s concurrence stated that the ordinance could have been struck down simply by holding “that the St. Paul ordinance is fatally overbroad because it criminalizes not only unprotected expres- sion but expression protected by the First Amendment” (i.e., both fighting and nonfighting words [Justice White concurring at 2550]). Therefore, according to Justice White, the majority need not have ad- dressed whether the ordinance affected content-based discrimination.

In another concurring opinion, Justice Stevens stated that the ordi- nance did not, as the majority asserted, regulate speech based on the subject matter or viewpoint but distinguished different verbal conduct “on the basis of the harm the speech causes” (Justice Stevens concur- ring at 2570; emphasis in original). According to Justice Stevens, the ordinance did not prevent just one side from “hurling fighting words at the other on the basis of conflicting ideas, but it does bar both sides from hurling such words on the basis of the target’s ‘race, color, creed, religion or gender'” (at 2571 [emphasis in original]). Nevertheless, he concurred on the ground that the ordinance was unconstitutionally overbroad; in other words, the ordinance prohibits both constitution- ally unprotected and protected speech.

The second hate crime statute to reach the Supreme Court was the sentence enhancement statute challenged in Wisconsin v. Mitchell, 113 S. Ct. 2194 (1993). It provided for an enhanced sentence when a per- son “intentionally selects the person against whom the crime . . . is

which Justices O’Connor and White joined. For a journalist’s account of the facts sur- rounding the case, see Cleary (1994).

12 James B. Jacobs and Kimberly A. Potter

committed or selects the property which is damaged or otherwise af- fected … because of race, religion, color, disability, sexual orientation, national origin or ancestry of that person or the owner or occupant of that property” (113 S. Ct. at 2197 n.1). Mitchell, a black juvenile, was convicted of aggravated battery and subject to a sentence enhancement for selection of the white victim based on race. Prior to the attack, Mitchell and other black youths were discussing a scene from the movie “Mississippi Burning” which depicted a white man beating a black boy. Mitchell asked the group, “Do you all feel hyped up to move on some white people?” When the victim, a white juvenile, walked by, Mitchell said, “You all want to fuck somebody up? There

goes a white boy; go get him.” Mitchell and the group beat the boy unconscious (at 2196-97).

The Wisconsin Supreme Court, following the reasoning set forth in R.A.V., struck down the statute for creating a “thought crime” which

assigned more severe punishment to offenses motivated by disfavored

viewpoints. In a unanimous decision, the U.S. Supreme Court, in an

opinion written by Chief Justice Rehnquist, reversed and upheld the statute. The chief justice denied that the First Amendment was impli- cated by the Wisconsin statute. He distinguished Wisconsin’s sentence enhancement law from the R.A.V. ordinance on the ground that the St. Paul ordinance was directed at politically incorrect viewpoints, whereas the Wisconsin statute was directed at unprotected criminal conduct that may properly be singled out by the legislature for in- creased punishment due to the greater harm such crimes are perceived to inflict on victims and society. Rehnquist explained that motive has

traditionally been used by sentencing judges in determining sentences. “‘Motives are most relevant when the trial judge sets the defendant’s sentence, and it is not uncommon for a defendant to receive a mini- mum sentence because he was acting with good motives, or a rather

higher sentence because of his bad motives'” (Mitchell, at 2199 [quot- ing LaFave and Scott 1986]). (The Supreme Court did not adopt the subtle argument of some legal scholars that hate crime statutes worded in terms of target selection are different from motivation statutes.)

The Mitchell decision lifted the constitutional cloud from hate crime sentence enhancement statutes. Nevertheless, academic debate among constitutional scholars and civil libertarians continues. The critics in- sist that there is only a semantic difference between what is constitu-

tionally impermissible under R.A. V. and what is constitutionally per- missible under Mitchell. R.A.V.’s cross-burning ordinance could easily

Hate Crimes 13

be redrafted as a vandalism statute with a penalty enhancement for of- fenders who select their targets because of race, religion, or sexual ori- entation.

IV. The Incidence of Hate Crime There is a consensus among journalists, politicians, and academics that the United States is experiencing an unprecedented “hate crime epi- demic” (see Levin and McDevitt 1993; but see Jacobs and Henry 1996). Incredibly, there are no reliable empirical data to support this conclusion. Indeed, until 1990, the only available data were those pro- vided by advocacy groups like the Anti-Defamation League, the South- ern Poverty Law Center, and the Gay and Lesbian Anti-Violence Proj- ect, all of which lobby for more government attention to hate crimes. In 1990, at the behest of these and other advocacy groups, Congress passed the Hate Crime Statistics Act (Jacobs and Eisler 1993). Because of the conceptual and definitional problems discussed earlier, and im-

plementation problems, the data collected pursuant to HCSA are inad-

equate and disappointing.

A. The Hate Crime Epidemic Hypothesis The “epidemic hypothesis” asserts that all forms of prejudice-

motivated crime are rising alarmingly. Dozens of newspaper and maga- zine articles in the last few years have referred to “a hate crime epidemic” (Jacobs and Henry 1996). Many of the academics who have written on the subject begin with the assumption that hate crimes are on the rise and characterize the problem as a crisis or epidemic (Harvard Law Re- view 1988, 1993; Crocker 1992/93; Santa Clara Law Review 1994; Law- rence 1994; Smith 1994). Fordham Law School Professor Abraham

Abramovsky has even asserted that “no one seriously questions the se-

verity of the [hate crime] problem” (Abramovsky 1992). We believe that there is reason to be skeptical about this epidemic

thesis. First, criminologists are (or should be) professionally inured to claims about crime waves (Chaiken and Chaiken 1983, p. 11; Wright 1985). Second, the claim that the incidence of crime between members of different groups stands at an all-time high completely ignores his-

tory. A near-genocide against Native Americans, massive violence

against blacks, attacks on ethnic and religious groups, and unceasing violence against women and homosexuals are themes that run through- out American history; they are certainly not new. Indeed, it is almost

certainly true that there is far less prejudice and intergroup violence

14 James B. Jacobs and Kimberly A. Potter

now than at most previous points in our history. For example, does

anyone really believe that black Americans are now in as much danger from attack by white racists as they were during the Jim Crow era when hundreds of lynchings took place (Ames 1942; Ginzburg 1962)? Is it plausible that there is more virulent anti-Semitism (not to mention

anti-Catholicism) now than in the heyday of Father Coughlin (Des- mond 1912)? And could it likely be shown that there is more xenopho- bic violence against immigrants today than during the Sacco and Van- zetti era (Miller 1969; Alfredo 1987)? The rediscovery of hate crime is probably best explained not by an epidemic of prejudice-motivated violence but by our society’s far greater sensitivity to prejudice.

B. The Advocacy Groups’ Hate Crime Data Collection

Advocacy groups that collect and report hate crime statistics use those statistics to further their claims that the racial/religious/sexual orientation group they represent is experiencing unprecedented vic- timization at the hands of prejudiced criminals. Such claims are used to raise funds and to obtain government support on a whole range of issues.

No advocacy group has made as substantial a commitment to data

gathering or has shown as much sophistication as the Anti-Defamation

League, nor has any other group been gathering and reporting data for

nearly as long. Since 1979, the ADL has published an “annual audit” of “overt acts or expressions” of anti-Semitic hostility, which includes criminal offenses, verbal harassment, and distribution of anti-Semitic literature. Many such incidents would not qualify as hate crimes under

any federal or state statute. The inclusion of noncriminal acts, such as the distribution of anti-Semitic literature, and of acts for which the anti-Semitic motivation is questionable, are primary problems with the ADL’s statistics from the standpoint of counting hate crimes.

The ADL’s methods of data collection also leave much to be de- sired. The ADL’s audit is based on data provided by its twenty-eight regional offices. The regional offices, in turn, rely on information from individuals and community groups who contact the ADL, newspaper reports, and local law enforcement agencies (Jacobs and Henry 1996). There are a number of obvious problems with such data collection. The sensitivity to perceived anti-Semitic acts or expressions necessarily varies from state to state, and from city to city, as does the willingness of individuals to come forward and report incidents. Further, reliance on newspaper reports also poses problems since newspaper coverage of

Hate Crimes 15

anti-Semitic incidents varies depending on the size of the newspaper, the readership’s concern with anti-Semitism (New Yorkers are more

likely to be concerned with anti-Semitism than readers in Fargo, North Dakota), and competition from other high profile news events.

Despite such shortcomings, these statistics, as well as others, are con-

stantly used to support the claim that an epidemic of religious, racial, or other bias-motivated violence is plaguing the nation.

C. The Federal Data Gathering Effort The 1990 federal Hate Crime Statistics Act mandated that the U.S.

Department of Justice collect national hate crime data and publish an annual statistical report. The Act defines hate crime as any one of eight (later increased to eleven) predicate offenses (murder, nonnegligent manslaughter, forcible rape, aggravated assault, simple assault, intimi-

dation, arson, destruction, damage or vandalism of property, robbery, burglary, and motor vehicle theft) “where there is manifest evidence of

prejudice based on race, religion, sexual orientation, or ethnicity.” No other predicate offense, even if motivated by one of the officially disfa- vored prejudices, will be counted as a hate crime. Prejudice is “mani- fest,” according to the FBI guidelines, if “sufficient objective facts [are] present to lead a reasonable and prudent person to conclude that the offender’s actions were motivated, in whole or in part, by bias” (Fed- eral Bureau of Investigation 1990, p. 2). Prejudice which is palpable, even virulent, but not manifest on the face of the crime does not trans- form an ordinary crime into a hate crime.

This data collection system has been fleshed out by FBI Hate Crime Data Collection Guidelines and the Training Guide for Hate Crime Data Collection, prepared to aid state and local police in implementing the Act. In deciding whether a particular crime should be labeled a hate crime, the Training Guide instructs local police to consider the ques- tions printed below. However, the exercise bristles with ambiguity and

subjectivity. The Training Guide does not specify how much weight should be given to each question or how many questions need to be answered affirmatively to qualify criminal conduct as a “hate crime.” Moreover, questions 10 and 15 seem to allow for a hate crime label even if the offender’s prejudice is not “manifest” under the ordinary definition of the word. We have inserted in brackets possible difficul- ties in interpreting and answering these questions.

1. Is the victim a member of a target racial, religious, ethnic/national

origin, or sexual orientation group? [Are all ethnic groups “target”

16 James B. Jacobs and Kimberly A. Potter

groups? Do “whites” count as a “target racial group”? Do all religious groups?]

2. Were the offender and victim of different racial, religious, ethnic/ national origin, or sexual orientation groups? For example, the victim was black and the offenders were white. [What if one of the offenders is

from the same group as the victim?] 3. Would the incident have taken place if the victim and offender

were of the same race, religion, ethnic group, or sexual orientation? 4. Were biased oral comments, written statements, or gestures made

by the offender which indicate his/her bias? For example, the offender shouted a racial epithet at the victim. [What if the epithet was in response to bias statements or gestures by the victim?]

5. Were bias-related drawings, markings, symbols, or graffiti left at the crime scene? For example, a swastika painted on the door of a syna- gogue.

6. Were certain items, objects, or things which indicate bias used

(e.g., the offenders wore white sheets with hoods covering their faces) or left behind by the offender(s) (e.g., a burning cross was left in front of the victim’s residence)?

7. Is the victim a member of a racial, religious, ethnic/national ori-

gin, or sexual orientation group which is overwhelmingly outnumbered

by members of another group in the neighborhood where the victim lives and the incident took place? This factor loses significance with the passage of time, that is, it is most significant when the victim first moved into a neighborhood and becomes less significant as time passes without incident.

8. Was the victim visiting a neighborhood where previous hate crimes had been committed against members of his/her racial, reli-

gious, ethnic/national origin, or sexual orientation group and where tensions remain high against his/her group? [This seems to callfor histor- ical data and sociological assessments that would be very difficult to make reli-

ably.] 9. Have several incidents occurred in the same locality at or about

the same time, and are the victims all of the same racial, religious, ethnic/national origin, or sexual orientation group?

10. Does a substantial portion of the community where the crime occurred perceive that the incident was motivated by bias? [How could the police make such a determination?]

11. Was the victim engaged in activities promoting his/her racial,

Hate Crimes 17

religious, ethnic/national origin, or sexual orientation group? For ex-

ample, the victim is a member of the NAACP, participates in gay rights demonstrations, etc.

12. Did the incident coincide with a holiday relating to, or a date of

particular significance to a, racial, religious, or ethnic/national origin group (e.g., Martin Luther King Day, Rosh Hashanah, etc.)?

13. Was the offender previously involved in a similar hate crime or is he/she a member of a hate group? [Searching out the defendant’s orga- nizational memberships and magazine subscriptions will set off First Amend- ment alarms.]

14. Were there indications that a hate group was involved? For ex-

ample, a hate group claimed responsibility for the crime or was active in the neighborhood.

15. Does a historically established animosity exist between the vic- tim’s group and the offender’s group? [How shall we answer such ques- tions as whether there is historic animosity between blacks and whites, blacks and Latinos, whites and Latinos, Jews and gentiles, and so forth? Does histor- ical animosity exist between all racial, ethnic, and religious groups or is it more complicated than that?]

16. Is this incident similar to other known and documented cases of

bias, particularly in this area? Does it fit a similar modus operandi to these other incidents?

17. Has this victim been previously involved in similar situations? 18. Are there other explanations for the incident, such as a childish

prank, unrelated vandalism, etc? [Won’t many young hate crime offenders wish to characterize their conduct as pranks?]

19. Did the offender have some understanding of the impact that his/her actions would have on the victim? [Won’t this be difficult to de- termine? What if the offender is not apprehended or does not make a state- ment?] (Federal Bureau of Investigation 1991).

In December 1992, prior to the release of its first official hate crimes

report, the FBI issued a preliminary report, entitled Hate Crime Statis- tics, 1990: A Resource Book (Federal Bureau of Investigation 1992a), compiling data based on statistics from states that had their own indi- vidual reporting systems. The most salient feature of the Resource Book was its complete inadequacy. Only eleven states submitted any data. The FBI commented: “Each state responded to its own needs and stat-

utory requirements; therefore, a data collection instrument in one state is not necessarily comparable to that of another state. The groups cov-

18 James B. Jacobs and Kimberly A. Potter

ered by hate crime statutes often differed. In 1990, crimes motivated

by hatred for an individual’s sexual orientation were not covered by statute in Florida, Maryland, Pennsylvania, Rhode Island, and Virginia but were covered in Connecticut, Massachusetts, Minnesota, New Jer- sey, New York, and Oregon. Moreover, Oregon’s hate crime statute covered crimes committed against individuals based on marital status, political affiliation, and membership in a labor union…. Varied re-

porting procedures also restrict data comparability” (Federal Bureau of

Investigation 1992b, p. 3). In January 1993, the FBI released its first official report, containing

nationwide hate crime statistics for 1991 (Federal Bureau of Investiga- tion 1993). It contained data from only thirty-two states; only 2,771 law enforcement agencies (of the 12,805 agencies nationwide reporting to the FBI) participated in the data collection effort, and of these, 73

percent reported no hate crime incidents. Once again, the FBI accom-

panied the report with a disclaimer.5 A number of states reported fewer hate crimes than for the previous year.6

Even though the report found only 4,558 hate crimes nationwide

(compared with over 14 million reported crimes), many newspapers cited it as confirming the existence of a hate crime epidemic. A Houston Chronicle editorial stated: “The specter of hate is unfortunately alive and well in the United States…. The national report reveals a grim picture” (Houston Chronicle 1993).

The FBI’s second report, covering 1992 hate crimes, contained in- formation from forty-one states and the District of Columbia and found 6,623 hate crimes (Federal Bureau of Investigation 1994). The statistics for 1993 were based on forty-six reporting states and the Dis- trict of Columbia and reported 7,587 hate crimes (Federal Bureau of

Investigation 1995). One newspaper opined that the 1990s may be re- membered as “the decade of hate crime” and solemnly reported that “since the federal government began counting hate crimes in January 1991, hate crime has increased” (Rovella 1994, p. Al). The so-called increase could more accurately be attributed to an increase in the num- ber of states submitting data rather than an increased rate of hate crimes. Indeed, some states that contributed data in 1990 and 1991 re-

ported decreases for 1993.

5 FBI Director William Sessions stated, “While these initial data are limited, they give us our first assessment of the nature of crimes motivated by bias in our society” (Federal Bureau of Investigation 1992b, p. 1).

6 For example, in 1990, New York reported 1,130 hate crimes, while in 1991 it re- ported 943 hate crimes. Maryland reported 792 hate crimes for 1990 and 431 for 1991.

Hate Crimes 19

V. Portrait of Hate Crimes, Hate Criminals, and Hate Crime Victims

The macropicture of the incidence of hate crime in the United States is very sketchy. To say the least, even minimally reliable statistics on hate crimes are lacking. Moreover, the problem is not likely to im-

prove because of the ambiguities in defining and the subjectivity in la-

beling hate crime.

A. The Typical Hate Crime7

During the lobbying that led to passage of the federal Hate Crime Statistics Act, not surprisingly, advocacy groups cited examples of hard-core ideologically based violence by individuals and groups (e.g., the 1982 beating death of Vincent Chin, an Asian American, by two

unemployed auto workers in Detroit, Michigan, who blamed the Japa- nese for their job losses). In contrast, the data gathering effort has

mostly picked up vandalism and low-level offenses by juveniles and “Archie Bunkers,” not neo-Nazi violence by “Tom Metzgers.”

The vast majority of reported hate crimes are not committed by or-

ganized hate groups and their members, but by teenagers, primarily white males, acting alone or in a group (Goleman 1990, p. Cl; McKin-

ley 1990, p. Al; Herek and Berrill 1992, pp. 29-30; Levin and McDev- itt 1993, pp. 244-46; New York Police Department 1995). The New York Police Department (NYPD) Bias Unit found that 63.84 percent of hate crime offenders were under the age of nineteen. The San Fran- cisco Community United Against Violence, a gay victim assistance or-

ganization, says that the typical “gay basher” is a white male under the

age of twenty-one (although there are more black and Latino perpetra- tors than whites).8 The FBI statistics do not provide any sociodemo-

graphic data on hate crime offenders. The federal data do indicate that the typical hate crime consists of low-level criminal conduct. For 1993, the FBI reported that the most common hate crimes were intimidation

7 Jack Levin and Jack McDevitt (1993) identify and classify three types of hate crimes: thrill-seeking hate crimes, in which the individual acts with a group to achieve accep- tance; reactive hate crimes, in which the individual acts to protect himself from perceived threats from outsiders; and mission hate crimes, in which an individual or group targets members of a particular group which is seen as the cause of personal or societal prob- lems. However, these authors do not have data on the relative frequencies of these three types.

8 Fifty-four percent of offenders were identified as twenty-one or under. Ninety-two percent of offenders were male. The racial break-down of offenders was: 40 percent white, 30 percent black, and 23 percent Latino (Herek and Berrill 1992, pp. 29-30).

20 James B. Jacobs and Kimberly A. Potter

(2,239 incidents),9 destruction/damage/vandalism to property (1,949 incidents), and simple assault (1,249 incidents). There were only fifteen bias-motivated murders and thirteen bias-motivated rapes (Federal Bu- reau of Investigation 1995). The FBI’s data provide information on the rate of apprehension and on the offenders’ and victims’ race and gen- der but not on religion, sexual orientation, or other sociodemographic characteristics. A large percentage of hate crime offenders go unappre- hended-at least 42 percent. Of apprehended offenders, 51 percent were white and 35 percent were black. According to the FBI’s 1993 statistics, vandalism, one of the most common hate crimes, has the lowest rate of apprehension-of 2,294 cases, 1,830 went unsolved. This low rate of apprehension, typical for vandalism offenses, is a sig- nificant obstacle to research.

Typical hate crimes in New York City show a similar pattern. In 1990, the New York City Police Department’s Bias Unit recorded 530 hate crimes, including 87 incidents of vandalism/property damage, 171 incidents of aggravated harassment, and 172 bias-motivated assaults (New York Police Department 1991).

Between 1983 and 1987, the Boston Police Department classified 534 incidents as bias motivated. In marked contrast to the New York City and federal statistics, the most common hate crime in Boston was assault and battery with a dangerous weapon-136 incidents. Vandal- ism and simple assault were the second and third most common bias- motivated offenses, 98 and 77 incidents, respectively. Unfortunately, there is no explanation why the most common hate crime in Boston is more serious than the most common hate crime in New York City and nationwide, but undoubtedly the answer is rooted in the different cod- ing practices of the Boston and New York police departments. The Boston police may ignore or undercount the less serious crimes.

B. Hate Crime Offenders There are substantial scholarly literatures on prejudice in general

and on specific prejudices, like homophobia, anti-Semitism, misogyny, and racism. Some of this literature focuses on the psychology or social psychology of various prejudices and some (a smaller genre) on the so- ciological character of groups, both loosely and more tightly orga-

9 Intimidation is defined as “to unlawfully place another person in reasonable fear of bodily harm through the use of threatening words and/or other conduct, but without displaying a weapon or subjecting the victim to actual physical attack” (Federal Bureau of Investigation 1991).

Hate Crimes 21

nized, for whom prejudice is a key, or even the key, organizing princi- ple. Much of this literature has been produced by advocacy groups, like the ADL (Anti-Defamation League 1987, 1988, 1995), but in recent

years the U.S. government has also published a number of studies on hard-core hate groups (Schweitzer 1986; National Academy of Sci- ences 1996). Summarizing all this writing on the nature of general and

specific prejudice and on the character of hard-core hate groups is far

beyond the scope of this essay. However, in this section we attempt to draw some connections between the new hate crime literature and these other bodies of research.

For almost every prejudice condemned by hate crime laws, there is a separate, sometimes vast, academic and popular literature. We need to emphasize that only a small minority of offenders are hard-core

ideologically committed haters. The typical hate crime offender is an individual, usually a juvenile, who, like the offenders in Wisconsin v. Mitchell, holds vague underlying prejudices which on occasion spill over into criminal conduct.

Moreover, not all bigoted ideologues act out their beliefs through crimes. Many groups that are labeled hate groups claim to be affirma- tive identity movements, not “anti” other groups. For example, some

separatist militia groups might characterize themselves as survivalist and

perhaps pro-Christian, but not antiblack. The Jewish Defense League might characterize itself as pro-Jewish, not anti-Arab. To complicate matters still further, some hard-core hate groups, like neo-Nazis, are virulently prejudiced against a number of groups: Jews, blacks, ho- mosexuals, immigrants (Coates 1987; Hamm 1993; Kelly 1993).

1. Antiblack Offending. There is an enormous literature on racism

against blacks (Ames 1942; Ginzburg 1962; Grimshaw 1970; Burk

1972, p. 309; Boskin 1976; O’Brien 1989; Toy 1989; Newton and Newton 1991). Most of it focuses on “white” racism against blacks, but there is also a small amount of literature on Asian conflict with blacks (Rieder 1990, p. 16; Gooding-Williams 1993; Madhubuti 1993; Alan-Williams 1994). Some literature focuses on prejudice, some on

discrimination, and some on violence, including lynchings (Shay 1938; Ferrell 1986; Howard 1995).

At certain times and places in American history and society, groups like the Ku Klux Klan have perpetrated systematic and organized vio- lence and terror against blacks. In the post-Civil War era until well into the twentieth century, lynchings reached a pinnacle (Ferrell 1986, p. 92). From 1882 to 1968, 4,743 people were lynched; the vast major-

22 James B. Jacobs and Kimberly A. Potter

ity were black. During the peak lynching years, 1889-1918, the five most active lynching states were Georgia (360), Mississippi (350), Lou- isiana (264), Texas (263), and Alabama (244) (Ferrell 1986, p. 91; How- ard 1995, p. 18). In 1892, 200 lynchings occurred in a single year. These numbers include only the recorded lynchings; historians can

only speculate on the number of blacks whose deaths at the hands of

lynch mobs went unreported (Ferrell 1986, p. 91). Even today certain skinhead groups on occasion engage in such conduct. The Southern

Poverty Law Center’s Klanwatch Project releases periodic reports on extremist racist groups and on vicious individual hate crimes (Klan- watch 1987, 1989, 1991). They do not necessarily engage in organized violence but their rhetoric, written and oral, is frightening. More com- mon than the violence of ideologically driven racists is unorganized bullying and situational violence. And a good deal of reported antiblack hate crime could be attributed to repressed prejudice that erupts in the course of encounters based on nonracial issues. For example, the New York City Bias Investigation Unit investigated as a bias crime a dispute over a parking space between a black female and a white male. Initially, they argued over who was entitled to the parking space. As the argu- ment became more heated, the white male told the black woman, “You blacks think you own it all-why don’t you move-you don’t belong here” (New York Police Department 1991, p. 18).

2. Anti-Asian Offending. Crime based on prejudice against Asians has generated far less research and writing than crime against blacks.

Nevertheless, prejudice and violence against Chinese immigrants early in the century and against Japanese Americans during World War II have been documented (Miller 1969; Saxton 1971; Daniels 1978; Ta- kaki 1989; McWilliams 1944).

In the Congressional hearings leading to passage of the 1990 HCSA, Asian-American advocacy groups appeared before Congress and testi- fied to “the rising tide of violence” against Asian Americans. In a letter to the Senate, the National Democratic Council of Asian and Pacific Americans stated, “Our members in California, Texas, Massachusetts and New York are aware of an increase in violent crimes against Asian and Pacific Americans, most frequently new arrivals from southeast Asia and Korea, often elderly” (letter to Senator Paul Simon from Su- san Lee, U.S. Senate 1988).

Anecdotal evidence documents outrageously humiliating and violent anti-Asian attacks. For example, in 1987, a Jersey City gang called “Dot Busters,” beat to death Navroze Mody, an Asian Indian Ameri-

Hate Crimes 23

can (U.S. Congress 1987, pp. 34-37); in 1989, a Chinese American was murdered following a pool room fight in which he was called “gook,” “chink,” and blamed for American casualties in Vietnam (U.S. Com- mission on Civil Rights 1992, pp. 26-31). The 1992 Los Angeles riots revealed virulent anti-Asian, especially anti-Korean prejudice, by blacks. Mobs of blacks burned and looted Korean-owned stores; one looter stated, “Ask them will they hire blacks now” (Griego 1992, p. A2). Similar prejudice, although resulting in less violence, erupted in New York City, Chicago, and Dallas, in the context of black boycotts of Korean stores in the late 1980s and early 1990s (Rieder 1990, p. 16; Papajohn 1993, p. 1). Boycotters in Brooklyn stood in front of Korean stores chanting, “Koreans must go. They should not be here in the first place.” The racial tensions caused by the boycotts spilled over into violence when a black youth brutally assaulted an Asian man while yell- ing, “Koreans go home” (Rieder 1990, p. 16).

3. Ethnic Offending. Prejudice and conflict, including the whole

panoply of crime and violence, is a major theme in late nineteenth and

early twentieth century American society. Italians, Irish, Jews, and Germans all had their ethnic conclaves. During the early part of the

century, when such groups were immigrating in large numbers to the United States, they experienced a great deal of xenophobic and preju- dice-specific violence and what would now be called hate crime, some of which is well documented (Desmond 1912; Lowenstein 1989; Isolan and Martinelli 1993; Markowitz 1993; Maffi 1995). Similarly, the his-

tory of anti-Hispanic, especially anti-Mexican, violence against legal and illegal immigrants has been documented over the last two decades

(Prago 1973; Mazon 1984; Alfredo 1987; Pachon 1994). In recent years, advocacy groups have called attention to anti-Arab

violence. Representative Joe Rahall testified that “we are now con- fronted … with a wave of anti-Arab hysteria which is fueled daily by the media in this country … and worst of all, this hysteria has mani- fested itself in terrorist acts on Americans of Arab heritage” (U.S. Congress 1986, p. 2). The American-Arab Anti-Discrimination Com- mittee (ADC) presented examples of anti-Arab hate crimes consisting primarily of vandalism and harassing and threatening phones calls, as well as instances of violence against individuals, such as the pipe bomb- ing murder of Alex Odeh, director of the ADC (pp. 62-64).

4. Anti-Native American Offending. Perhaps indicative of how mar-

ginal their position is, even among minority groups, there is very little

scholarship on anti-Native American hate crimes, although undoubt-

24 James B. Jacobs and Kimberly A. Potter

edly such violence occurs, especially in those states with large Native American populations. Native American historical literature portrays U.S. government policy toward Native Americans as one of ignorance, exploitation, and frequently extermination (Andrist 1964; Brown 1973; Debo 1983; Ehle 1988).

5. Anti-Semitic Offending. Anti-Semitic prejudice, violence, and vandalism is the subject of a large literature (Hendrick 1923; Simmel 1946; Adorno et al. 1950; Yinger 1964; International Encyclopedia of the Social Sciences 1968, 1:345; Higham 1985; Dinnerstein 1987; Toy 1989; Rubin 1990). The Anti-Defamation League has produced a tremen- dous amount of literature (Anti-Defamation League 1989, 1990b, 1990c, 1991). The ADL audits reveal that a significant amount of cur- rent anti-Semitism (not necessarily hate crimes) is expressed and per- petrated by black hate mongers, who seem to have a great deal of sup- port in the black community (Anti-Defamation League 1990a, 1994). Khalid Abdul Muhammad, spokesman for Nation of Islam leader Louis Farrakhan, claimed that victims of the Holocaust brought it on themselves: “They went in there to Germany the way they do every- where they go, and they supplanted, they usurped, they turned around, and a German in his own country would almost have to go to a Jew to

get money” (Anti-Defamation League 1994). The most dramatic re- cent black anti-Semitic hate crime was committed in the course of four

days of rioting in 1991 in the Crown Heights section of Brooklyn. Chanting “kill the Jews,” mobs set fires, destroyed property, and looted stores, and assaulted and harassed citizens, and murdered rab- binical student Yankel Rosenbaum. Over the course of four days there were 259 calls to 911 regarding property offenses, 192 calls regarding offenses against persons, and 233 calls regarding roving groups of dis-

orderly persons (more than double the number of calls logged during an average four-day period) (Girgenti 1993, p. 126). Nevertheless, the NYPD Bias Investigation Unit identified only twenty-seven bias-moti- vated incidents (Girgenti 1993, p. 129).

6. Antiwhite Offending. In recent years, there has been much more attention to antiwhite prejudice among blacks (Box 1993; Welch

1994). According to a recent Klanwatch report, more whites than blacks were the victims of racially motivated murders (nine white and six black hate murder victims) (Box 1993). Further, it is reported that when Louis Farrakhan mentioned Colin Ferguson, the black man who

opened fire on a crowded commuter train killing six white passengers, at a rally in New York City the audience broke into a prolonged ova-

Hate Crimes 25

tion (Mills 1994, p. 13). In a speech before an audience of 2,000 at Howard University, Nation of Islam spokesman Khalid Muhammad drew similar applause when he stated, “I love Colin Ferguson, who killed all those white folks on the Long Island train” (Melillo and Har- ris 1994, p. B1). Moreover, literature about the virulently antiwhite, anti-Semitic black radio and press in the New York City area illustrates the climate of antiwhite hate (Sleeper 1990).

There is a dispute about what percentage of black-on-white crime is motivated by prejudice. Some writers seem to bend over backward to

explain such crime as economically motivated or the result of repressed rage, but it is hard to see how a good deal of black-on-white street crime is not based, in part, on prejudice. Certainly crimes like Colin

Ferguson’s murder of six white Long Island Rail Road commuters in December 1993 could be considered antiwhite hate crime; Ferguson was carrying notes expressing hatred for whites, Asians, and conserva- tive blacks. However, commentators disagreed over whether his killing spree should be characterized as hate crime (Wilson 1993, p. A14). Bob Purvis, legal director for the Center for Applied Study of Ethno- violence, stated that while technically the offense could be classified as a hate crime, “mass murder is mass murder, it’s not a hate crime.”

Criminologist Jack Levin disagreed, stating that “the hate crime issue should be brought out because this is a very rare form of hate crime and a very rare form of mass murder.” Sociologist Ronald Holmes, while conceding that Ferguson selected his victims on the basis of race, declined to classify the incident as a hate crime: “He picked his victims and they were deserving in his mind. This person was disgruntled with the way things [were] going in society” (Wilson 1993, p. A14).

While most black rioting since the 1960s has involved black neigh- borhoods and black victims, some rioting has been targeted at whites and Asians. For example, the April 1992 Los Angeles riots, in which crowds of blacks erupted in response to the not-guilty verdicts in the trial of police officers accused of beating Rodney King, included nu- merous antiwhite hate crimes, including the near fatal attack on Regi- nald Denny and the murders of Howard Epstein and Matthew Haines.’? There was also extensive violence directed against Koreans (Gooding-Williams 1993; Madhubuti 1993; Praeger 1993, p. 11; Cha- vez 1994, p. 22).

10 “After Howard Epstein was shot in the head, onlookers, who gathered around his car, broke into applause when someone pointed out that the victim was white” (Lacey and Feldman 1992, p. Al).

26 James B. Jacobs and Kimberly A. Potter

7. Anti-Gay Offending. Crimes motivated by sexual-orientation bias have generated a body of research on offenders. Unlike other hate crime offenders, anti-gay offenders are more likely actively to seek out victims by traveling to neighborhoods or locations where gays live or

congregate (Levin and McDevitt 1993). Reports and informal surveys indicate that the overwhelming majority of anti-gay offenders are males in their late teens to early twenties (Berk, Boyd, and Hamner

1992, p. 131; Berrill 1992, pp. 29-30; Harry 1992, p. 113). Other com- mon characteristics of anti-gay attacks are that offenders typically act as a group; the offenders and victim are strangers; and offenders appear to have no underlying criminal motive, such as obtaining money or

property from the victim (Berk, Boyd, and Hamner 1992, p. 131; Ber- rill 1993, pp. 156-57).

Sociologist Joseph Harry categorizes anti-gay hate crime offenders into two classes: the “activists” who seek out homosexual victims by traveling to gay neighborhoods, and the “opportunists” who engage in

gay bashing only when the opportunity arises. Harry suggests that four elements must be present in order for gay bashing to occur: “(a) the institution of gender, which defines departure from a gender role, and

especially sexual departure, as an abomination; (b) groups of immature males who feel the need to validate their status as males; (c) dis-

engagement by those males from the conventional moral order; and

(d) opportunities for gay-bashing-gay neighborhoods for activists, visibly homosexual persons for opportunists” (Harry 1992, p. 121).

Sociologists Richard Berk, Elizabeth Boyd, and Karl Hamner offer a conceptual foundation for hate crimes by categorizing anti-gay hate crimes into three types, with the premise that all hate crimes are “sym- bolic crimes” (Berk, Boyd, and Hamner 1992, pp. 127-28). A symbolic crime is defined as one in which the key ingredient in choosing the victim is that individual’s membership in a particular social category. The first type of hate crime is the “actuarial crime.” A good example involves a group of youths who decide to rob a gay man “not because of what his sexual orientation represents to them but because they apply a stereotype to him implying an upper-middle class income and a disinclination to fight back” (p. 128). “Expressive” anti-gay hate

crimes, in effect, are a way of conveying the offenders’ opinion or worldview. An expressive hate crime may be a way “to teach ‘those

people’ a lesson,” or it may simply be a homophobic reaction (p. 129). “Instrumental” hate crimes may be expressive, as well as acting as a

Hate Crimes 27

means to an end, such as keeping homosexuals from moving into a

neighborhood or closing down a gay bar or gathering place (p. 129). Berk, Boyd, and Hamner suggest a list of empirical attributes of

anti-gay hate crimes which may be useful in identifying, labeling, and

researching this species of hate crime. Although based on scanty em-

pirical evidence, they came up with the following set of attributes: more than one perpetrator, ranging in age from late teens to early twenties, ratio of perpetrators to victims (two to one), victim is

stranger or “distant acquaintance,” “location (outside of residences for

person crimes),” occurring in the evening and during weekends, perpe- trators are male, and no other underlying crime (e.g., robbery). Berk,

Boyd, and Hamner acknowledge that this list of attributes may be un- reliable given the slim database on anti-gay hate crimes. Further, they state that attributes applicable to anti-gay hate crimes may be irrele- vant to anti-Semitic or racial hate crimes (1992, p. 132).

Social psychologist Gregory Herek applied the “functional ap- proach” theory to examine gay bashing and the motivations of anti-

gay offenders. The functional approach assumes that people hold and

express certain attitudes because they derive some type of psychologi- cal benefit from doing so (Herek 1992, p. 151). As applied to gay bash-

ing, the functional approach, in essence, asks whether participation in

anti-gay violence serves a psychological function for the offender. Herek identifies five possible psychological functions of gay bashing. First, some anti-gay hate crimes may serve an “experiential function” in which the offender uses the victim as a proxy for another homosex- ual with whom he had a past negative experience (p. 159). Second, anti-gay violence may serve an “anticipatory function,” which is essen-

tially the same as Berk, Boyd, and Hamner’s actuarial hate crime.

Third, gay bashing may serve a “value-expressive” function by provid- ing the offender with a way to express deeply held personal values that condemn homosexuality (pp. 159-60). “Social-expressive” functions

may be affirmed and strengthened through gay bashing. For example, young males may bond and reaffirm their group solidarity by attacking homosexuals. According to Herek, “By clearly differentiating and then

attacking an out-group [homosexuals], anti-gay violence can help in-

group members [heterosexual males] to feel more positive about their

group, and consequently about themselves as well” (p. 160). Similarly, ego-defensive violence provides a means for young males to reaffirm their masculinity, which they perceive to be associated with heterosex-

28 James B. Jacobs and Kimberly A. Potter

uality, by targeting “someone who symbolizes an unacceptable aspect of their own personalities” (p. 161). Statements by the Blue Boys, a gang of loosely organized young men, explaining why they use blue baseball bats to attack gays illustrates the ego-defensive and social- expressive functions: “We chose the blue baseball bats because it’s the color of the boy. The man is one gender. He is not female. It is male. There is no confusion. Blue is the color of men, and that’s the color that men use to defeat the anti-male, which is the queer” (Collins 1992, p. 195).

Herek’s social-expressive and ego-defensive functions are nearly identical to the social identity theory, which sociologist Karl Hamner uses to explain gay bashing. In essence, the social identity theory posits that an individual’s self-concept and self-esteem are based on identifi- cation with a particular “in-group,” which is defined as “any group with which the individuals identifies and feels a sense of membership” (Herek 1992, p. 180; see also Hamner 1992, pp. 179-81). In order to evaluate and make judgments about themselves, individuals compare their own in-group to an “out-group.” An out-group can be any group with which the individual does not identify or finds abhorrent. As ap- plied to anti-gay violence, heterosexual males use their negative per- ception of homosexuals to increase their individual and group self- esteem (p. 182).

8. Antifemale Offending. Aggression, including violent crime, by men against women is very common (Rothschild 1993; Pendo 1994). Violence against women and girls is so common that to recognize it as a hate crime category would likely make it the most prevalent type of hate crime. If all rapes were counted as hate crimes, rape would be by far the most common violent hate crime (in 1993, there were 104,806 reported rapes: Federal Bureau of Investigation 1995, p. 23). Addition- ally, other criminal offenses for which women are the primary victims would also count as hate crimes. For example, the victims of serial murderers are almost always female, while the killers are male (Holmes and DeBurger 1988; Egger 1990, p. 7; Kiger 1990). It is highly plausi- ble that these serial killers are motivated at least in part by antifemale bias.

Women’s groups actively campaigned to have crime based on gen- der prejudice included in hate crime statutes, and in some states (al- though not in the federal HCSA) they have been successful (Wang 1995, app. B; Cal. Penal Code ?? 422.6-75, 1170.75; Mich. Comp. Laws. Ann. ? 750.147b; Conn. Gen. Stat. Ann. ?46a-58). Misogyny has

Hate Crimes 29

generated a massive literature (Brownmiller 1976; Straus, Gelles, and Steinmetz 1980; Baron and Straus 1989; Jukes 1993). Certainly, a large percentage of male perpetrators of violence against women are moti- vated at least in part by antifemale prejudice.

In 1994, Congress passed the Violence Against Women Act of 1994 (Pub. L. No. 103-322), which creates a civil cause of action for vic- tims of gender motivated crimes (although paradoxically, “gender- motivated crime” is not hate crime).11 Under the statute, a victim may sue the offender for compensatory and punitive damages and injunc- tive and declaratory relief in federal court.

9. Organized Hate Groups. The labeling of various organized groups as hate groups is as fraught with definitional problems and so- cial and political subjectivity as the labeling of individual acts of crime. Consider whether the Nation of Islam, the Jewish Defense League, Act-Up, and the Hell’s Angels should be categorized as hate groups? Many commentators loosely label all the militia groups in the West and Midwest as hate groups although some of these groups at least re- sist the label (Coates 1987; Bennett 1988; Sargent 1995).

Some groups are uncontroversially and avowedly ideologically com- mitted to prejudice-for example, the Ku Klux Klan, the Order, White Aryan Resistance, and small gangs of skinheads. Mark S. Hamm’s American Skinheads: The Criminology and Control of Hate Crimes focuses on the history and evolution of American skinheads. He conducted empirical research through interviews and questionnaires of white supremacist skinheads and their organizations. Hamm differenti- ates between hate crimes and terrorist acts; hate crimes are motivated

by prejudice with no underlying social or political objective, whereas terrorist acts are based on a social or political objective. According to Hamm, “not all acts of terrorism can be considered hate crimes, and hate crimes are not necessarily terrorism unless such prejudicial vio- lence has a political or social underpinning” (Hamm 1993, p. 107). Fifty-eight percent of the 120 self-reported acts of violence by the skinheads Hamm interviewed were not directed at nonwhite individu- als (Hamm 1993, p. 109).

Hamm’s research presents a picture of two types of skinheads: ter- rorists (those who have regularly engaged in acts of violence based on prejudice) and nonterrorists (those who have not engaged in acts of

” The act defines a “crime of violence motivated by gender” as a felony “committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim’s gender” (Section 40302 [d][1]).

30 James B. Jacobs and Kimberly A. Potter

violence). As his sample, Hamm interviewed thirty-six skinheads; he identified twenty-two terrorists and fourteen nonterrorists. Hamm compared the backgrounds and ideologies of the terrorists and nonterrorists. He found that terrorists come from predominantly lower-class backgrounds and that the vast majority of terrorists and nonterrorists came from stable families with whom they got along. Hamm also found that terrorists scored significantly higher than non- terrorists on the Fascism Scale, or F-Scale, which was developed by Theodor Adorno and his colleagues at the University of California, Berkeley to measure authoritarian and fascist personality traits (Adorno et al. 1950).

10. Hate Crime Victims. Proponents of the new hate crime laws fre- quently contend that hate crimes are “different” because they inflict more injury to the individual victim and to third persons and commu- nity stability than crimes in the same offense category that are attribut- able to other motivations (Greenawalt 1992/93, pp. 617-28; Garofalo and Martin 1993, pp. 65-66; Marovitz 1993, pp. 49-50).12 In 1986, the National Institute Against Prejudice and Violence (NIAPV) conducted a “pilot study” of seventy-two hate crime victims in seven states. The pilot study did not compare hate crime victims with ordinary crime victims. It simply examined the victims in order to create “a profile of an average hate crime victim and their [sic] reactions” (Weiss 1991, p. 97). Although this pilot study did not attempt to conduct empirical research supporting the claim that hate crime victims suffer greater emotional harm than ordinary crime victims, the NIAPV used the study to support such assertions. According to Joan Weiss, former di- rector of NIAPV: “One of the most striking findings was the impact of these incidents of ethnoviolence [e.g., hate crimes] on victims com-

pared to personal crimes [e.g., ordinary crimes]. How does one know, for example, whether being the victim of an act… motivated by racial or religious prejudice, was any worse than being the victim of a ran- dom act? … From working with the victims, it is apparent that they were not comparable, but there is no proof in terms of data” (Weiss 1991, p. 100). Despite the lack of data supporting the claim that emo- tional harm to hate crime victims is greater than emotional harm suf- fered by ordinary crime victims, Weiss concluded that “the compari- son of symptoms of the victims of personal violence with victims of

12 Chief Justice Rehnquist, writing for the majority in Wisconsin v. Mitchell (113 S. Ct. 2194, 2201 [1993]), accepted this “greater harm” rationale.

Hate Crimes 31

ethnoviolence was very graphic in this study. There were more symp- toms, a greater effect on the individual, when the motivation was prej- udice” (Weiss 1991, p. 100).

The NIAPV pilot study, in fact, did not compare the emotional

damage to hate crime victims with those sustained by nonhate crime victims. There was no comparison research on victims of ordinary crimes. It comes as no surprise that hate crime victims report psycho- logical and emotional effects of their victimization. The literature and research on criminal victimization, documenting the short- and long- term adverse effects of victimization, is vast (Burgess and Holstrom

1974; Notman and Nadelson 1976; Bard and Sangrey 1979; For- man 1980; Skogan and Maxfield 1981; American Psychological Associ- ation 1984; Elias 1986; Sank and Caplan 1991). The American Psycho- logical Association Task Force on the Victims of Crime and Violence found that the victims of such different crimes as assault, rape, bur-

glary, and robbery exhibit surprisingly similar reactions. The reactions include anger, shock, disbelief, fear, anxiety, and helplessness. These

feelings may be accompanied by sleep disturbances, nightmares, and “an increase in psychosomatic symptoms and aggravation of previous medical problems” (American Psychological Association 1984, p. 25). Emotional reactions to crime may last for years, with victims experi- encing depression, loss of self-esteem, and a deterioration of personal relationships. Frequently, victims change their behavior to cope with fear of future crimes, such as moving, changing phone numbers, leav-

ing home less often, installing security devices, or purchasing firearms

(American Psychological Association 1984, pp. 25-27). A 1994 study of hate crime victims by social work professors Arnold

Barnes and Paul H. Ephross found of fifty-nine hate crime victims of various racial, religious, and ethnic backgrounds that “the predominant emotional responses of hate violence victims appear similar to those of nonhate-crime victims of similar crimes. The behavioral coping re-

sponses of hate violence victims are also similar to those used by other victims of crime” (Barnes and Ephross 1994, p. 250) No direct com-

parison was made of ordinary crime victims; Barnes and Ephross exam- ined the emotional responses of hate crime victims and compared them to common emotional reactions of ordinary crime victims based on ex-

isting victimization research and literature. Barnes and Ephross found

only one significant difference in hate crime victims’ emotional reac-

tions, and this difference pointed to less severe emotional injury: “A

major difference in the emotional response of hate violence victims ap-

32 James B. Jacobs and Kimberly A. Potter

pears to be the absence of lowered self-esteem. The ability of some hate violence victims to maintain their self-esteem may be associated with their attribution of responsibility for the attacks to the prejudice and racism of others” (Barnes and Ephross 1994, p. 250, emphasis added).

To date, there is no empirical research comparing the emotional re- actions of hate crime victims and ordinary crime victims. Indeed, very little research exists which focuses exclusively on hate crime victims as a separate victim group.

It is frequently asserted that hate crime, or intergroup crime per se, is more traumatic to some or all members of the group of which the victim is a member. But the assertion that hate crime has greater ad- verse impacts on the victim’s community has not been systematically documented. Obviously, a campaign of hate crime against a group (“Krystallnacht”) will be more traumatic than an individual crime that can be rationalized as aberrational, if the community even finds out about it. Thus, the beating of Rodney King by a group of Los Angeles police officers angered Los Angeles’s black community and, after the

police were acquitted, touched off rioting in south central Los Angeles. The explosive black violence against Korean stores during the 1992 Los Angeles riots was said to be traumatic for the whole Korean com-

munity (Chavez 1994). It is sometimes asserted, without supporting empirical evidence, that

hate crime leads to reprisals and intergroup warfare (Coldren 1993; Greenawalt 1992/93, p. 627). If this is true at all, it only holds for in- terracial and interethnic violence and not for homophobic, anti-Se-

mitic, and misogynistic crimes. It is sometimes said that hate crime is more socially destabilizing

than ordinary crime (Crocker 1992/93, p. 489; Greenawalt 1992/93, p. 627; Coldren 1993). That proposition is not obviously true. “Ordi-

nary” street crime has devastated America’s urban environment over the last several decades; among other things it has been a chief contrib- utor to mass flight to the suburbs. Likewise, drug-related crime and black-on-black violence have been enormously destabilizing for the in- ner city. All kinds of horrifying crimes-carjackings, arson, drive-by shootings, serial murder-send shock waves through the community.

VI. Hate Crimes and the Criminal Justice System How have the police adapted to the emergence of the new hate crime

category? Have they shifted resources into hate crime investigations and away from other kinds of investigations? Has the recognition of

Hate Crimes 33

hate crimes as a separate genre of crime meant a reordering of police priorities?

A. Police and Hate Crime Investigation In 1988, Abt Associates and the National Organization of Black Law

Enforcement Executives (NOBLE) released a joint study, referred to as the Abt Report, examining law enforcement and prosecutorial re-

sponses to hate crimes (Finn and McNeil 1988). Based on interviews with criminal justice personnel and representatives of community or-

ganizations, the study reached conflicting conclusions regarding the criminal justice system’s response to hate crimes. Fifty-five percent of the respondents interviewed by NOBLE rated the law enforcement re-

sponse as “good to exceptional,” while all respondents believed that “the criminal justice system has not recognized the seriousness of hate violence, or that many criminal justice personnel do not want to be- lieve that hate violence exists in the community” (Finn and McNeil 1988, p. 4).

The New York City Police Department, as well as a few other large police departments, have formed “bias units” to investigate bias crimes.13 Typically, these units are staffed with officers whose sole re-

sponsibilities involve the investigation and labeling of hate crimes (Marx 1986). A police bias unit’s responsibility for deciding whether

particular crimes are bias motivated is fraught with sensitive, and po- tentially explosive, social and political ramifications. In New York City, racial groups have been known to mobilize and polarize over labeling or failing to label a crime as a hate crime (Sleeper 1990; Jacobs 1992a, 1992b, 1993a, 1993b). During the investigation and trial of the blacks

youths who raped and nearly beat to death a female jogger in Central Park, journalists and some citizens charged that a double standard ex- ists, whereby white-on-black crimes are quickly labeled hate crimes, while black-on-white crimes are explained in different terms (Benedict 1992, pp. 189-251). At the same time, some black observers branded the prosecution of the youths as itself racist (O’Sullivan 1989, p. 13; Anderson 1990, p. 52). So politically sensitive is the hate crime labeling decision that, in 1987, the NYPD created a Bias Review Panel to re- view the classification of bias-motivated crimes.

13 The Abt Report identified twenty-seven police departments that made investigation of bias crimes a priority, either through the creation of specialized “bias units” or through new departmental policies for identifying and investigating bias crimes (Finn and McNeil 1988).

34 James B. Jacobs and Kimberly A. Potter

Another obstacle to identifying a bias-motivated offense is failure to

apprehend the offender. No arrest is made in the majority of hate

crimes; arrests are most rare in low-level offenses like bias-motivated vandalism. In 1990, only 127 of 530 bias offenses in New York City were cleared; of 167 anti-Semitic offenses, there were only sixteen ar- rests (New York Police Department 1991, p. 44).

Some incidents that initially appear to be hate crimes may turn out not to be hate crimes. For example, a Hispanic woman claimed that her white neighbor harassed her with anti-Hispanic epithets. On de-

termining that the complainant and the neighbor had been involved in an ongoing dispute over building code violations, the NYC Bias Unit reclassified the incident as “a non-bias motivated personal dispute” (New York Police Department 1991, p. 25).

In some situations, the victim may misconstrue the offender’s moti- vation or simply be unreliable. The NYPD Bias Unit investigated one

case, in which six Hasidic men riding the subway were confronted by a group of black youths. One of the Hasidic men was sprayed with mace and robbed. After investigation, the Bias Unit discovered that fifteen minutes after the Hasidic men were attacked, the same group of black youths attacked and robbed a white man and then a Hispanic man. The Bias Unit concluded that “the groups’ actions should not be considered anti-white or anti-religious but totally criminal in nature with robbery as their sole objective” (New York Police Department 1991, p. 24). That conclusion itself seems debatable since the offenders

might well have been prejudiced against Jews, whites generally, and

Hispanics (if indeed they perceived the Hispanic victim to be Hispanic rather than white).

B. Prosecuting Hate Crimes Defendants have been prosecuted for crimes motivated by prejudice

long before the emergence of the new hate crime laws. They were

prosecuted under “generic” criminal laws, although on conviction

prosecutors may have persuaded sentencing judges to treat the defen- dant’s bias motive as an aggravating factor justifying a severe punish- ment. In a very small number of cases, hate crimes were prosecuted under the federal criminal civil rights act (18 U.S.C. ? 241), which criminalizes conspiracies to interfere with constitutional or federal

statutory rights.14 14 Lu-in Wang provides an excellent summary of the federal civil rights laws and their

use to prosecute hate crimes (Wang 1995, chap. 3, pp. 1, 35). For example, 18 U.S.C.

Hate Crimes 35

1. The Decision to Charge. Charging a defendant with a hate crime

“ups the ante.” The prosecutor, in addition to having to prove the un-

derlying offense, shoulders the burden of proving that the defendant is a racist, anti-Semite, or homophobe. Consider the consequences for the prosecution if it had to prove the racism of the defendants in the

Rodney King, Reginald Denny, or Yankel Rosenbaum cases (Lorch 1992, p. B3; Praeger 1993, p. 11; Schmich 1993, p. 1). In interracial cases like those, the prosecution usually tries to keep jurors focused on the essential elements of the offense, especially when the defense is in- tent on “playing the race card” (Jacobs 1992/93, p. 549). If the crimi- nal conduct had been charged as a hate crime, it would have signalled the jurors that this is a “race case” and possibly polarized the jurors along racial lines. That almost certainly would disadvantage the prose- cution, at least whenever there is a multiracial jury.

Charging, or failing to charge, a hate crime could place a prosecutor in a “catch-22” situation. The decision to charge or not charge a de- fendant with a bias crime could provoke anger in the victim’s or the defendant’s community (Fleisher 1994, p. 28). For example, the failure to bring a hate crime charge in the gang rape and near-fatal beating of the Central Park jogger led some observers to accuse the police and the mayor of adhering to a double standard in labeling hate crimes.

Hate crimes attract more media and community attention than ordi-

nary crimes (see Chermak 1995, pp. 54-55). A prosecutor may desire such publicity in order to placate or attract the support of the victim’s

community. However, a prosecutor may wish to downplay the defen- dant’s prejudice in order to avoid alienating members of the defen- dant’s community.

2. The Jury and Hate Crime Trials. Selecting a jury for a hate crime trial presents unique challenges. How far should the prosecutor go on voir dire to determine whether a prospective juror is not himself or herself prejudiced against the victim’s group and is willing and capable of finding the defendant to be prejudiced against the victim’s group (Maldonado 1992/93, p. 559)? Some jurors who may be able to find that a defendant, a member of their same racial, ethnic, religious, or sexual orientation group, committed a garden-variety crime, may not be willing to find the defendant guilty of being a racist, anti-Semite, or other type of bigot. The juror, consciously or unconsciously, might

? 241 was used to prosecute the Mississippi law enforcement personnel involved in the 1964 murders of civil rights workers Michael Henry Schwerner, James Earl Chaney, and Andrew Goodman (United States v. Price, 383 U.S. 787 [1966]).

36 James B. Jacobs and Kimberly A. Potter

see this as an indictment of his or her own prejudices (Jacobson 1977, p. 88; Barkan 1983, p. 28-44; Levine 1992, pp. 169-72).

3. Proving Prejudice. In some cases, evidence of bias motivation is “manifest.”15 For example, the defendant may have been screaming ra- cial epithets at the time of the assault or robbery or when taken into

custody may confess that his crime was racially motivated. However, even epithets at the crime scene will not invariably mean that the de- fendant was motivated by prejudice. For example, two individuals may have become embroiled in an argument over a parking place, the vic- tim may have shouted an epithet, and the defendant may have retali- ated with an epithet and a punch.

While prejudice may be manifest, it may have been triggered by an

unplanned encounter, not by an ideologically driven determination to terrorize a specific racial, ethnic, or religious group (Jacobs 1992b, p. 58; Levin 1992/93, p. 167; Fleisher 1994, p. 11). One such case was State v. Wyant, 597 N.E.2d 450 (1992), in which the Ohio Supreme Court reversed the ethnic intimidation conviction of David Wyant. In

May 1989, Wyant and his wife, both white, were renting a campsite. Jerry White and his girlfriend, both black, rented the campsite next to the Wyants’. There was no conflict between the two parties until late in the evening when Wyant complained to campground officials about loud music from White’s campsite. A short time later, White and his

girlfriend overheard Wyant saying, “We didn’t have this problem until those niggers moved in next to us,” “I ought to shoot that black mother [expletive],” “I ought to kick his black ass” (p. 450). On the basis of these statements (which were overheard by White, and not screamed in his face during a confrontation), Wyant was convicted of ethnic intimidation. The Ohio Supreme Court reversed on the ground that the statute, in effect, created a “thought crime” in violation of the First Amendment. It is questionable whether the Ohio court’s decision is valid after the U.S. Supreme Court upheld Wisconsin’s statute in Mitchell.

How much evidence is required to prove that a crime was motivated in part by prejudice? Would it be sufficient to show that the defendant

15 In order to make hate crimes easier to prove, some commentators have proposed that in all violent interracial crimes, the burden of proving unbiased motive be shifted to the defendant (Fleischauer 1990, p. 701; Harvard Law Review 1988). The defendant would be presumed to have acted from a bias motive and would have to prove that he did not. Proponents of this policy usually suggest that it apply, in the interracial context, only to white defendants. No hate crime statute or proposed bills have included this proposal which, even under a liberal definition of affirmative action, would almost cer- tainly be declared unconstitutional.

Hate Crimes 37

shouted a racial or religious slur as he fled the crime scene? In an at- tack on a Hispanic couple by a group of white youths who remained silent during the attack, would it be sufficient to present testimony from a witness who overheard the youths make ethnic slurs an hour (six hours? a day?) before or after the attack?

Where the offense involves more than one perpetrator, the problem of proving motive is more complex. What if only one member of the group shouted an epithet? Can that person’s motivation be attributed to the codefendants? Accomplice liability typically requires that the ac- complice desire the crime to be committed. Does that include the bias motivation (Fleisher 1994, p. 27)?

Most hate crime statutes do not require proof of manifest prejudice. Thus, where manifest prejudice was not evident at the crime scene, the prosecutor may attempt to prove prejudice based on the defendant’s character, activities, and pronouncements. In order to prove the defen- dant’s prejudice, a prosecutor may be tempted or pressured to delve into the defendant’s beliefs and values, the publications he reads, the organizations to which he belongs, his activities, the backgrounds of his friends. In People v. Aishman, 19 Cal. Rep. 444 (1993), the prosecu- tor introduced as evidence of prejudice the fact that one of the defen- dants had a swastika and “Thank God I’m White” tattooed on his arms (1993, p. 447). Further, witnesses may be called on to testify about how the defendant told (or laughed at) racist or homophobic jokes, or whether he ever used racial slurs. In Grimm v. Churchill, 932 F.2d 674 (1991), the arresting officer testified that Grimm had a history of mak- ing racist remarks (pp. 675-76). Similarly, in People v. Lampkin, 457 N.E.2d 50 (1983), the prosecution presented as evidence racist state- ments that the defendant had uttered six years before the crime for which he was on trial (p. 50). In effect, the trial may turn into an inqui- sition on the defendant’s character, or at least his values and beliefs.

When confronted with such evidence, a defendant may rebut the prosecution’s allegations of prejudice by testifying, or having friends testify, that he is not prejudiced (Jacobs 1992/93, p. 551). This sort of rebuttal evidence may, in turn, lead to cross examinations like the following:

Q: [by the prosecutor]: And you lived next door to [a 65-year-old black neighbor of the defendant’s] for nine years and you don’t even know her first name?

A: No. Q: Ever had dinner with her? A: No.

38 James B. Jacobs and Kimberly A. Potter The social consequences of race

Q: Never gone out and had a beer with her? A: No. Q: Never went to a movie? A: No. Q: Never invited her to a picnic at your house? A: No. Q: Never invited her to Alum Creek? A: No. She never invited me nowhere. Q: You don’t associate with her, do you? A: I talk to her when I can, whenever I see her out. Q: All these black people that you have described that are your

friends, I want you to give me one person, just one who was

really a good friend of yours. (State v. Wyant, 597 N.E.2d 450 [1992])

Such testimony and cross examination may transform hate crime trials into character tests, which defendants will pass only if they are politi- cally correct multiculturalists. The result of such inquisition-style hate crime trials may be increased polarization of the community and politi- cization of the criminal justice system. Ironically, the emphasis on hate crimes might generate more intergroup prejudice and conflict.

It is not surprising then that prosecutors infrequently bring hate crime charges. In Kings County (Brooklyn), New York, the Civil

Rights Bureau of the district attorney’s office received 169 complaints of bias motivated crimes in 1992 (Maldonado 1992/93, p. 555). Of these complaints, twenty-nine were prosecuted through disposition, or about 12 percent (p. 555). Maldonado attributes case mortality primar- ily to the difficulty of proving a nexus between the underlying crime and the bias motivation of the offender (p. 556).

C. Sentencing Enhancement Statutes Hate crime laws that are formulated as sentencing enhancements,

rather than as substantive offenses, need not be proved before a jury and therefore do not raise the problems discussed in the last section. Rules governing the admissibility of evidence, especially hearsay evi-

dence, are less stringent at a sentencing hearing than at a trial. Indeed, courts have traditionally permitted the admission of associational and

speech-related evidence at sentencing hearings where the evidence bears a direct relation to the crime charge (Barclay v. Florida, 1983, p. 939; Dawson v. Delaware, 112 S. Ct. 1093 [1992]; Wisconsin v. Mitch- ell, 113 S. Ct. 2194 [1993]).

Hate Crimes 39

The federal sentencing guidelines mandate an increased base-level offense score for the underlying crime when the offender had a bias motive. The defendant’s prejudice must be shown by a preponderance of the evidence at the sentencing hearing.

VII. Sociopolitical Significance of Hate Crime Laws Hate crime legislation should not be understood primarily as a crime control strategy. The United States is unlikely to produce equal oppor- tunity predators by threatening hate crime prosecutions and aggra- vated sentences for criminal conduct motivated by prejudice. More-

over, the criminal justice system is unlikely to enforce these special laws vigorously for the reasons discussed in the last section. Their im-

portance is greater as symbolic legislation than as crime control (Ja- cobs 1992/93, 1993b).

Civil rights legislation attempts to rectify past wrongs by codifying positive rights, and affirmative action extends preferences to members of historically discriminated against groups. Hate crime statutes trans-

port the civil rights/affirmative action paradigm into the criminal law. The prejudice and discrimination that are condemned are not those of

government or private employers but of criminals. Unlike civil rights legislation that makes otherwise lawful conduct (e.g., refusal to hire or

promote) unlawful, hate crime laws enhance punishment for conduct that is already criminal. One further asymmetry with the standard civil

rights model is that, in the hate crime context, minority group mem-

bers, especially blacks and Hispanics, constitute a high proportion of offenders.

Politicians are easily convinced to support hate crime laws, because in passing such laws they believe they are sending a message of support to minority communities that demand such signals. They also send a more general message that they are morally correct individuals. Just as it does not take much political courage for politicians to denounce

crime, it does not take courage, nor is it politically risky, for most poli- ticians to denounce crime motivated by racism and religious prejudice. Only denunciation of prejudice against homosexuals seems politically risky. Thus, ironically, some politicians cannot or will not condemn crime motivated by prejudice against homosexuality, although this is a classic type of hate crime.

As the civil rights movement has become an entrenched feature of American politics, Americans have become more adept at asserting group rights. Increasingly, Americans find it in their interest to identify

40 James B. Jacobs and Kimberly A. Potter

themselves as members of groups, especially victimized and disadvan-

taged groups, thereby establishing their eligibility for affirmative ac- tion and other special considerations (Epstein 1989, p. 20; Sykes 1992; Skerry 1993, pp. 6-7; Sleeper 1993, p. 1; Bernstein 1994). This “iden-

tity politics” makes “race, ethnicity, gender, and sexual orientation the

primary lenses through which people view themselves and society” (Sleeper 1993, p. 1).

Making prejudice a key factor in categorizing and coding crime

brings criminal justice politics closer to mainstream identity politics. Thus, it should not be surprising to find that some academic commen- tators advocate adoption of the affirmative action paradigm into crimi- nal law so that white-on-black crime would be punished more severely than black-on-white crime. In support of such a proposal, Fleischauer

(1990, p. 706), for example, argues that it is unfair to subject minorities to enhanced penalties “at a disproportionate rate compared to white offenders because it is in the nature of society for majorities to prose- cute minorities more frequently and with more vigor than vice versa” (see also Harvard Law Review 1988). Other commentators go even fur-

ther, proposing that in cases of white-on-black crime the white defen- dant’s prejudice be presumed and the burden shifted to the white defen- dant to prove the absence of prejudice motivation. No jurisdiction has

adopted these proposals, and in any event, they would be vulnerable to constitutional challenge under the Fourteenth Amendment’s equal protection clause (Morsch 1991). The social consequences of race

Hate crime laws can be criticized on the same grounds that affirma- tive action and identity politics are criticized: that such race-conscious laws and policies divide the society and destroy common ground. Twenty years ago most criminologists were probably uneasy about

breaking down crime statistics sociodemographically. The thrust of the hate crime law movement is to further deconstruct crime along racial, ethnic, religious, gender, and sexual orientation fault lines as much as

possible. The danger is that groups will start keeping score cards. That has already happened to some extent in New York City.

VIII. Summary and Conclusion In most crimes, especially predatory crimes, the perpetrator and victim are members of the same group; at least that is true for racial groups. However, a minority of crime is committed by members of one racial, ethnic, religious, gender, and sexual orientation group against mem- bers of another, sometimes as an explicit expression of ideology and

Hate Crimes 41

sometimes for ambiguous reasons, including conscious or subconscious

prejudice. It may be convenient to lump all such racist, sexist, homo-

phobic, misogynistic, and anti-Semitic conduct under the single label “hate crime,” but obviously each of these abhorrent ideologies, forms of prejudice, and types of group-targeted aggression has its own etiol-

ogy, sociology, and social psychology. Prejudice and motivation are both very complicated concepts. Social phenomena like criminal con- duct motivated by anti-Semitic aggression and criminal conduct moti- vated by sexism cannot be adequately explained in the same general terms.

Until recently, intergroup crime and crime motivated by prejudice were not categories explicitly recognized by criminal law. In practice, of course, in different times and different places crimes by members of one group against another have been less vigorously investigated, prosecuted, and punished than “ordinary” crimes. However, until re-

cently, the remedy for this type of discrimination was thought to be the evenhanded enforcement of generic criminal law. No doubt, to some extent, there has been improvement; for example, spouse abuse and gay bashing are now taken much more seriously by the police and the courts.

Recently, however, advocates for “minority” groups have pressed for

special condemnation of intergroup and bias-motivated crime. They urge that bias-motivated crime be separately coded, counted, and re-

ported. Moreover, they urge that bias-motivated crime be labeled, con- demned, and punished independent of and more seriously than generic criminal conduct. Not all crime is equal, they argue; hate crime is worse than crimes attributable to run-of-the-mill antisocial motiva- tions. Understood as symbolic politics, the new genre of hate crime laws makes sense, but it ought not to be assumed that such laws will contribute to a more just and harmonious society. Indeed, the formula- tion and implementation of hate crime laws themselves generate con- flict and social strain. The social consequences of race

The concept of hate crime is easy to grasp as an ideal type, but it is difficult to effectuate in a workaday criminal justice system. Most puta- tive hate crimes are not ideologically motivated murders, although some of those do occur. Most are low-level crimes committed, like most crime, by nonideological young men who could be described as alienated, antisocial, impulsive, and frequently prejudiced. Whether it aids understanding of their conduct and of our society to brand them as bigots as well as criminals is not an easy question to answer.

42 James B. Jacobs and Kimberly A. Potter

Whether so branding them will improve intergroup relations generally is also an open question.

Beyond the problem of definition, labeling particular incidents as hate crimes bristles with subjectivity and potential for bias. Neverthe-

less, the very existence of the term, the attempt to measure the inci- dence of hate crime, and the prosecution and sentencing of some of- fenders under different types of hate crime statutes have already changed how Americans think about the crime problem. At a mini-

mum, the new hate crime laws have contributed further to politicizing the crime problem.

Emile Durkheim and the sociologists and criminologists who have followed in his wake emphasized the social bonding effects of crime.

According to Durkheim, in expressing their outrage at the criminal, the society affirms its commitment to common norms and culture (see Garland 1990). All this now may be changing. Rather than Americans

pulling together and affirming their common ground by condemning criminal conduct, they may now increasingly see crime as a polarizing issue that pits one social group against another, thereby further divid-

ing an already fractured society.

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The social consequences of race

The social consequences of race

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