The Debate Over Hate Crime Laws

Hate crime legislation was originally drafted in the mid 80's to encourage people from a broad range of personal and professional identities to work cooperatively to identify intergroup conflicts and act to ease tensions. As with any relatively new system of laws there is opposition, and a growing body of opinion is emerging that hate crime laws violate free speech, and that they promote politics based on personal identities rather than politics based on visions of unity.  These arguments have resonated with some of us within CAHRO so it is worth reviewing the arguments to determine whether they justify the repeal of anti-hate crime laws.   

CAHRO Board Member Joe Hicks, Director of the Los Angeles City Human Relations Commission and CAHRO Director Fred Persily argues both sides.  Read Fred Persily's argument.

The Concept of ''Hate Crime'' Requires Rethinking
by Joe Hicks, CAHRO Board Member, Director of LA City HRC

We can all agree that crimes motivated by hatred are extremely troubling.  And I will continue to join with my colleagues and others to work toward eliminating the racism and bigotry that causes some in our society to victimize others because of skin color, sexual orientation or any other "differences."   However, I have become increasingly troubled over the orthodox thinking which separates out particular crimes from others of a similar type and then defines them as  "hate crimes."  Other than feeding the concept of group victimization, does such an approach work?  Does the perpetuation of a belief that "hate crime" is "special crime" assist the division of people based on ethnic, racial and other identities?  I choose to dissent from the "hate crime" orthodoxy.

I believe that answers to the questions raised above are critical to the development of realistic approaches to America's ongoing obsession with race and identity.  The rush to create a whole new category of identity-based crime is but one example of approaches that may not have been as well thought out as we require.  Driving the "hate crime" push has been a number of extremely troubling examples of violence and homicide that were admittedly motivated by racism and hatred.  Most recently we've seen the killing of James Byrd, in Jasper Texas; the racist rampage of Buford Furrow (which resulted in the death of a postal worker and the wounding of several adults and children); and the brutal and fatal beating of Matthew Sheppard.   The vast majority of the American people, regardless of race or sexual orientation, are outraged by these crimes and  have reached a general consensus that -- just as with all violent crime -- people who commit such acts must be aggressively prosecuted and punished. 

Thankfully, national crime statistics show that hate crime is an extremely small portion of  major categories of crime (rape, robbery, aggravated assault, homicide), as well as so-called lesser categories of crime (vandalism, assaults, vice).  However, the question requiring more discussion and debate is: Should acts motivated by hate be categorized differently from "regular" crimes which are often equally  brutal, violent, and traumatize victims as well as community members alike?  Secondarily is the question of enhanced punishment.  For the sake of intellectual honesty, I believe we should be asking whether or not enhanced sentencing and punishment deters acts of hate?  Fundamentally, the question is does hate crime legislation actually work?

As many in the human relations and race relations field are aware, the concept of "hate crime" is something that is relatively new.  The murder of  Emmit Till in the 1950s ( a black youth who supposedly whistled at a white woman), and in the 1960s,  the brutal killing of civil rights workers Chaney, Schwerner and Goodman, were simply considered outrageous and horrible atrocities.  They were, in other word, horrific crimes.  The lynching of black Americans, which occurred following the Reconstruction Period and continued through much of the 1930s and 40s, were never referred to as "hate crimes," though clearly they were motivated by extreme levels of racial hatred. "Hate crime" is in fact a product of the 1990s, first appearing in print in 1989 in an issue of U.S. News and Word Report.  The concept was codified in the federal government's hate Crime Statistics Act of 1990, which, under pressure from various activists groups and allied elected officials, called for the collection of data related to actions newly defined as "hate crime."

The collection of hate crime data may partially serve as a barometer of human relations in the United States, and -- if used in this fashion -- can serve a positive purpose.  However it is the response to such data that is suspect.  There is no evidence that would cause anyone to authoritatively assert that "enhanced sentences," hate crime "awareness training," or "hate crime curriculum" in schools act as an effective deterrence to acts of bias, let alone organized or individual hate violence.  Simply asserting that these things work does not make it fact.  Further, the consideration of punishment is largely nonexistent among organized hate groups, and "gay bashers" or un-organized bigots who are driven by stupidity and passion of the moment -- and likewise un-deterred by hate crime laws.   Intergroup street gang violence (of which there is a great deal) is also largely unaffected by hate crime statutes.  Imagine, if you could, a hard core street thug stopping to consider how much time he'll get if he pulls the trigger to avenge the death of his home boy.  The call for ever harsher punishment and ever-expanding legislation, which comes from liberal, left and "progressive" leaders, is curious at best.  Some of the same leaders and groups, who have vehemently opposed "three strikes" laws and various "get tough on crime" measures, and stand at the forefront of efforts to abolish the death penalty, simultaneously argue that somehow, miraculously, tougher policies and enhanced sentences for those who commit "hate crimes" will result in a deterrence of this kind of criminal behavior. 

I am additionally troubled by the rhetorical rush to claim that America is in the midst of an "epidemic" of hate crime.   While this rhetoric may assist various political and programmatic agendas, it harms attempts to craft realistic approaches to the actual material conditions facing our nation.  Whether coming from the left or right, excessive rhetoric is of no good use.  I argue that so-called hate crime in America has not increased, however, the quantity and quality of the data collection has increased.  Today, with Attorney General Janet Reno applying "carrot-and-stick" methods, with rare exceptions, most law enforcement agencies in major American cities report "hate crimes."  The realities of race, gender and sexual orientation in America have changed dramatically in the past 30 years.  Bigots of all kinds have been pushed to the margins of society, emerging occasionally to wreak havoc.  While racism and discrimination have certainly not been totally eradicated, it is far from being on the rise and is in fact of declining significance in our nation.      

However, it is in the realm of racial politics surrounding hate crime that gives me the best reason for pause.  There is an overriding perception that hate crime is something done by whites to minority groups.  And, to be fair, the stench of racists, skinheads, and other white supremacist formations, hangs thick over many acts of hate.  This cannot be diminished.  But why the reluctance to call similar acts committed against whites "hate crime."  Search as you may, you are hard pressed to find the term "hate crime" applied to Colin Ferguson's fatal rampage on the Long Island Railroad, nor was the term used when a gang of young thugs gang raped and brutally beat a white female jogger in New York City's Central Park.  Because these acts (among others) were committed by "people of color" there was, and is currently, a distinct fear of defining such crimes against whites as acts of racial hate.  Even white liberals all too willingly buy into the notion that only whites can be racists.  The rise of intergroup violence between Latinos, African-Americans and Asians has also caused a great deal of anguish among many advocates of hate crime laws.  There has been a great deal of reluctance among left of center political forces to identify conflict and violence between "people of color" as acts of racial hate because hate crime legislation is often viewed -- illogically in my view -- as a logical extension of the fight against white racism.

Some argue that "hate crime" laws have had little or no discernable impact on First Amendment issues.  I disagree.  Flowing directly from the increasing intrusion of hate crime legislation has been a tendency to enact speech codes on college campuses and codes of personal conduct in the workplace.  Saying the "wrong thing" can bring severe sanctions or ejection from a university campus, or cause one to be fired from their job.  It has rarely been actual conduct that causes the difficulty.  John Rocker, the idiotic Atlanta Braves pitcher, publically expressed his narrow-minded views about New York City's diversity  and wound up sanctioned by organized baseball and forced to undergo "psychological counseling." We can all agree that the punishment of conduct has been found constitutional by various courts.  However, more frequently it is has been speech, not connected to conduct, that has caused punishment.  For instance, campus speech codes have attempted to regulate student expression, personal discussions, jokes, and comments in class - including topics covered by professors. And while many of these speech codes have been successfully challenged, they have nonetheless chilled the academic climate and perhaps deepened the nation's racial divisions.

A basic component of hate crime is the belief that all crime is not equal, that crime motivated by racial or other bias is worse than other crime which may not have a motive based on some particular bias.  There is also a belief that hate crimes terrorize entire communities, and make people fearful, even those who may not even know the victim.  But that's certainly true of all violent crime.  Don't women lock their doors and windows more securely following a rape in their neighborhood?  Does a date rape not cause a women to be fearful of all men?  Are community people not terrorized as a result of a gang shooting, a drive-by incident, or a homicide in their neighborhood?  I wish to suggest with this brief article that breaking criminal law into new crimes with a hierarchy of punishment, which depends on the prejudices of criminals and the identities of victims exacerbates rather than lessening societal conflicts and tensions.  "Hate crime" allows crime to be yet another arena for intergroup conflict.  Additionally, such laws and public policy actually reinforces the politics of identity by supporting the proposition that each group's victimization at the hands of other identity groups is worsening, something contradicted by the facts.  It is my view that now is the time to rethink our approach to what's called "hate crime."