what's hate got to do with it

8/14/2019 What's Hate Got to Do With It

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night in November 1988, three skinheads,of a group called East Side White Pride,

were cluising the streets of Portland, Oregon, when they sawthree Ethiopian immigrants. Shouting racial epithets, the skin-heads leaped from their car, clubbed the Ethiopians with abaseball bat, and kicked them with steel-toed boots. One oftheir victims, Mulugeta Seraw, died a few hours later.In July 1989, two white men in Raleigh, North Carolina,murdered Jim Loo, a 24-year-old Chinese-American, attackinghim with the butt of a gun and a broken bottle. The men saidthey did not like "Orientals."

In September 1990, reports National Journal, a group ofassailants in Kentucky "beat a gay man with a tire iron, lockedhim in a car hunk with a bunch of snapping turtles and then triedto set the car on fm. He was left with severe brain damage."

When you read about incidents like these, it's easy to under-stand the appeal of hate-crime laws. In recent years all but fourstates have adopted such laws. most of which raise the penaltiesfor existing offenses when they are motivated by bigotry.Supporters of hate-crime laws say they do not want to suppressspeech or ideas--only a particularly dangerous kind of crime.Opponents argue that such laws punish what people say, think,and believe, in violation of the First Amendment.

The Supreme Court left this debate unresolvedlast summer,when it addressed the issueof hate-crime laws forthe first time.In RAV v. St . Paul, the Court unanimously overturned a St. Paulordinance that banned the display on public or private propertyof "a symbol, object, appellation, characterization or graffiti"likely to arouse "anger, alarm or resentment in others on thebasis of race, color, creed, religion or gender."

The case arose after a teenager, Robert Viktora, burned across on the lawn of a black family in June 1990. In addition tocharging him with assault under state law, the city prosecutedhim under the hate-crime ordinance. And because that ordi-nance banned specific expressive acts-rather than simplyraising the penalty for existing crimes-the Supreme Court'sdecision may or may not apply more broadly to "penalty-en-hancement" statutes. Since the ruling, state supreme courtshave overturned penalty-enhancement laws in Wisconsin andOhio but upheld one in Oregon. So hatecrime laws, in theirmost common form, remain very much the subject of legal,political, and philosophical debate.

L ke the prospect of Nazis marching in Skokie, this con-troversy has divided traditional defenders of the FirstAmendment. Many members of the American Civil LibertiesUnion favor penalty enhancement, although they oppose lawssuch as St. Paul's thatcriminalizeexpression alone. The union'snational board is split on the issue, and state chapters haveadopted conflicting positions.

This ambivalence was evident in the ACLU's mixed reactionto the Supreme Court's decision in RAV v. St. Paul. The organi-zation applauded the result but faulted the majority's reasoning,which seemed to question the constitutionality of singling outacts motivated by bigotry.

"Any of the laws being passed by the state legislatures thattreat crimes motivated by racial, ethnic, religious, or genderbias in a special way are now going to be vulnerable to consti-tutional attack because of this decision. That concerns us,"ACLU attorney Loren Siegel told The New York 7imes.

But Kevin O'Neill, who wrote the Ohio ACLU chapter'sbrief against that state's law, has no such qualms. "Our basicconcern about hate-crimes legislation in general, and Ohio'sethnic intimidation law in particular, is that it is an effort bygovernment to punish people because of their ideas," he tolda wire-service reporter, pointing out that each state ACLUchapter is autonomous.

Susan Gellman, a public defender who challenged Ohio'shate-crime law, notes that both sides of the debate are dedi-cated to the ideal of tolerance. "The difference is only in thelevel of focus," she writes in the UCLA Law Review. 'Theproponents of ethnic intimidation laws are focusing on in-dividual intolerance, i.e., bigotry; the critics are focusing onsocietal intolerance, i .e., repression."In fact, the penalty-enhancement approach was designedprecisely to avoid First Amendment problems. The modelstatute developed by the Anti-Defamation League of B'naiB'rith, which most states have imitated, raises the seriousnessof an offense when it is committed "by reason of the actual orperceived race, color, religion, national origin or sexual orien-tationof another individual or group of individuals."Themodelstatute also boosts penalties for "institutional vandalism" andallows hate-crime victims to sue for special, general. andpunitive damages.

Twentyaine states have adopted penalty-enhancement lawssince 1980, when Maryland became he first. The effect of suchlaws can be dramatic. In a case that led the W~consin upremeCourt to overturn that state's hate-crime law last summer, ToddMitchell was convictedof aggravated battery afterleading agroupof blacks in a racist attack on a white teenager. Wisconsin'spenalty-enhancementStatutein~rea~edthemaximumsentenceforthe crime from two to seven years, and Mitchell got four.

Legislatures passed these laws largely in response to lobby-ing by the ADL, which presented its fmt model bill in 1981.Lawmakers were also influenced by statistics suggesting thathate crimes were on the rise, coupled with publicity surmund-ing particularly egregious incidents. Both kinds of informationare cause for concern, but they have limitations, and the con-junction of the two can be especially misleading.The ADL's annual audit of anti-Semitic incidents, begun in1979, is probably the best-known nationwide indicator of hatecrimes. Its numbers show a steady increase every year from1986 (906) through 1991 (1,879). But since the ADL's audit isbased on reports to its chapters throughout the country, thesenumbers are affected by changes in reporting behavior. Themore people hear about hate crimes-including publicity aboutthe audit itself-the more likely they are to report such inci-dents to the ADL or the police. This sets up a feedback loop inwhich one year's numbers push up the next year's.

And hate-crime numbers can go up when police depart-ments change their classification methods. After passage of the

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federal Hate Crim eStatistics Actof 1990, forexa mple, the NewYork P olice Department broadened its definition of hate crimeto m eet federal reporting requirements. Originally, the depart-ment defined a hate crime a s an offense in w hich bias is theprevailing motive; now it counts as a hate crime any act inwhich bias is p an o f the motive. So it's not clear to what extenthate-crime figures reflect an actual rise in incidents.Plus, a single random even t can skew the num bers, falselysuggesting an alarming nationwide rise. For example, theADL coun ted twice as many anti-Semitic assaults in 19 91 asit did in 1990. But all but a handful of the add itional attack swere associated with unrest in Crown Heights, Brooklyn.following a car accident in which a Hasidic Jew killed ablack boy. If that accident hadn't happened, the number ofassaults would have been rough ly the same.

Perhaps more disturbingthan the raw numbers are sto-ries about panicular crimes,such as the skinhead attack inPortland o r the gay bashing inKentucky. On an emotionallevel, at least, case s of viciousb e a t i n g s a n d s e n s e l e s smurders seem to bolster thea rgument fo r pena l t y en-hancement. But their verybrutality would merit addi-tional punishment under ordi-nary criminal law, regardlessof the reasons fo r the attacks.And as horrifying as suchcrimes are, it's important toremember that they are veryunusual. For example. of the1.879 anti-Semitic incidents

example, if A strikes B in the face he commits a criminalbattery. However, should A add a word such as 'nigger,''honkey.' 'jew,' 'mick,' 'kraut,' 'sp ic,' or 'queer,' the crim ebecomes a felony, and A will be punished not for his conductalone--a misdemeano r--but for using the spoken word."Supporters of h ate-crime laws recognize this concern. JoeRoy, chief investigator for Klanwatch, an organization thatmo niton hate groups, emphasizes that an epithet is not suffi-cient evidence of a hate crime. "Each particular situation hasto be scrutinized by the investigating officers," he says. 'Ther eis a danger w here somebody calls somebody a name, and thevictim hollers, 'Hate crime!' "Th e FBI's Hate C rime Data Collection Guidelinesdescribehypothetical cases to help police identify the real thing. Forexamole. ao urse snatching in which the thief knocks hisJewish

catalogued by the ADL in 1991, only 60 were physical attacks.The vast majority involved threats, harassment, or van dalism;many of the incidents were slurs or vague threats that wouldnot even qualify as crimes.It's also worth rememb ering how infrequent hate crimes arerelative to other offenses. In 1990, the sam e year the ADLcounted 3 0 anti-Semitic assaults, the Federal B ureau of Inves-tigation cou nted n early 1 million arrests for assault nationwide.Jews represent about 2.4 percent of the p opulation, and let'sassume they suffer a proportionate nu mber of assaults. Thatmeans that for every assault motivated by anti-Semitism, Jewsexperienced roughly 800assaults for other reasons (assumingthat every assault led to an arrest).

B creating adistinction based on motive, hate-crime lawsare bound to ounish ~ e o o l eased on their sceech. sinc e.that is usually the only evidence of bigoted m otivation. As theWisconsin Supreme Court observed: "There are numerousinstances where the statute can be applied to convert a mis-demeanor to a felony merely because of the spoken word. For

victim to the ground and callsher a "kike" would not be re-ported as a hate crime. On theother hand, po lice should re-port a hate crim e after inves-tigating a c ase of synagoguevandalism in which the per-petrators destroyed religiousobjects and painted a swastikaand the slogan "Death to theJews!" on the walls, but didnot steal anything.Real-life cases are oftenmore comp licated. Dirk Rog-geveen, a former U S. JusticeDepartment prosecutor whohandled hate-crime cases, re-calls a teenager w hom the de-partment considered chargingunder a federal law that for-

bids interfering with housing rights on the basis of race, re-ligion, or national origin. The teenager had burned a cross inthe driveway of a black family's home. But it turned out thathe had a long-lunning feud with a member of the family.stemming from an incident in art class. (She had som e dispar-aging things to say about one of his paintings.) Since then, theyhad been playing increasingly cri~el ractical jokes on eachother, some of them involving racial elements.

"He burned a cross because he figured that would be thething that wou ld piss her off the most," Rog geveen says. Butthe department concluded that theb oy had not intended to drivethe family ho rn the neighbo rhood: nor had he targeted the girlbecause she was black.With suc h careful distinctions to be m ade, there's alway s thedanger that less conscientious prosecutors might abuse theirdiscretion. In any case that involves a slur or an element ofbigotry, prosecutors can choose to bring hatecrime charges, auto-matically boosting the penalty that the defendan t might face.In 1991. for example, a police officer responded to a dom es-tic disturbance at the home of M ichael Hamm in Punta Gorda,Florida. "As I tried to make contact with Mr. Hamm," the

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of ic er later reported, "he becam e verbally aggressive towardsme and stated, 'I'll shoot you, white cracker.' " Hamm wascharged not only with simple assault but also with violatingFlorida's hate-crime law, which boosted the m aximum penaltyhe could receive from one year to three years. The charge waseventually dropped, but the c ase illustrates how police officersand prosecutors might use hate-crime laws to impose extrapunishment on people who have offended them in someway-for example, by talking back to a cop .Gellman, the Ohio public defender, wam s that penalty-en-hancemen t statutes are a pt to result in arbitrary and discrimi-natory enforcement. She suggests they might even he usedagainst political protesters, especially members of minoritygroups. 'That's not what the legislatures have in mind whenthev enact these thines." she savs. "but I could see it beine.applied in a ca se like that."Steven Freeman, the ADL'slegal director, says the possi-bility does not worry himmu cb."Prosecutors still bear the bur-den of proving that the crime isbias-motivated." he say s, "and Idon't think that's so easy to do.It's not enough to say that thisperson is bigoted, and this per-son committed a crime." ButFreeman is talking about theburden of proof in a trial, andmost cases don't mak e it that far.Hate-crime laws can give pros-ecutors added leverage in pleabargaining, whether or not thecharges would stand up in co un.

tors, not victims, determine the charges in individual cases,making special hate-crime penalties a crude instmment forbalancing punishment with harm.In fact, the ADL's model ha te-crime statute booststhe penaltyrange even when the perp etrator mistakenly thought his victim

belonged to a certain group. In its 19 91 status report on hate-crime statutes, the ADL describes a case in which a C aliforniafamily suffered through a two-year campaign of terrorism. Aman wrote anti-Semitic graffiti on their home, sent themthreatenin g letters, and burned sm all crosses in their yard. Laterhe attempted to bum their home down and fired shots throughthe kitchen window. He was prosecuted under California'sreligious-terrorism statute, amon g other law s. Yet it turns out thefamily was Ca tholic. Surely they suffered because of his crimes,but did thev suffer more because he thought thev were Jewish?

I e strongest argument for punishing hate crimes moreseverely than other crimes is that they d o more h arm, inthe same way that armed robbery causes more harm thanshoplifting and thus merits a greater penalty. "We can sho w thatthere's a greater harm to the individual, that other memb ers ofthe target group who lea m about [a hate crime] are intimidatedby it, and that each one of these ac ts exacerbates the intergroupand racial tensions that are tearing this country apart," saysRobe rt Pu wis , administrative director of the Nation al InstituteAgainst Prejudice and Violence. "All of those things togetherspell out a very compelling state interest in targeting thisparticular kind of crime."To back up his claim of greater individual harm, P uw iscite sa nationwide telephone survey that his group conducted in 1989using a random samp le of more than 2,000 subjects. Th e studyfound that respondents who had been victims of violencemotivated by p rejudice were significantly more likely to reportnegativ e psych ologica l reactions-including anger, greaternervousness, increased alcohol or d rug use, and fear of sleepingalone-than were other victims of violence. But these feelingsvary from case to case, individual to individual, and prosecu-

the penalties even for offenses that do not attract attention.Nor is it clear that the conce ntratedfea r caused by som e hatecrimes is worse than the more widespread fear engendered by

ordinary crimes. "Why is it more terrorizing or socially desta-bilizing to stab som eone because h e is Jewish, for instance, thanto stab someone for his sneakersT' writes Jonathan Rauch inThe New Republic. "The form er signals that Jews are in danger;the latter signals that everyone is in danger."And the social effects of hate crimes are unpredictable. Sucha crime m ay indeed increase ethnic tensions, but it may alsobring a community together. Early one morning in November1991, for example, 52 mezuzahs were stolen from the door-posts of dormitory rooms at Bamard College. "In a positiveoutgrow th of the incident," the ADL reports in its annua l audit,"many non-Jewish students at Barnard expressed solidaritywith the victims of the vandalism." And last March, aftervandals broke into the office of a Moslem professor at theUniversity of Southern California and spray-painted anti-Iranian slogans on the walls, a coalition that included Jews,blacks, and Japanese-Americans condemned the crime.In any case, the acts that lead to the worst intergroup

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tensions and violence need not be hate crimes. Ordinary streetcrime aggravates racial tensions, making middle-class whitesfearful of young black men, w ho in turn resent the suspicion.And a community's response to an incident often hinges onpublic perceptions of m otivation, which may be mistaken orunverifiable. In the Rodney King case, for example, the copsclearly did not beat him merely because of his race, since histwo black companions were unharmed. Although m any peoplesuspected that King w as beaten more severely than he wouldhave bad he been white, we will probably never know for sure.Yet that perception, coupled w ith the impre ssion that the policeofficers would not have been acquitted had King been white,was enough to set off the L.A. riots.

Utimately, hate crimelaws are a way to teachpeople that bigotry is bad.That's why they concentrateless on specific harms to vic-tims--which judges, after all,can con sider in sentencing-and more on perpetrators 'b e l i e f s . T h e p u r p o s e o fpenalty enhancement, says theADL's Freeman, is "to send amessage that society is notgoing to tolerate crimes m oti-vated by bigotry, that they'rereprehensible."

DeannaD uby, deputy legaldirector of People for theAmerican Way, says " therationale behind hate-crimestatutes generally has been thedesire to make a statement thatsociety sees any kind of crime

the case for m ost of recorded history; consider the situation ofJews in medieval Europe or blacks in the old South. When thegovernment was no t actively persecuting them, it was turninga blind eye as others did. Hate-crime laws might be seen as away of m aking u p fo r that history, just as affirmative action isbilled as an attempt to comp ensate for a history of gnvernm ent-enforce d discrimina tion. (Althou gh these laws officially p r etect everyone, the vast majority of hate crimes involvememb ers of minority groups.)

R t the promise of a liberal democracy is that mem bersu o f inority groups will be from aggression,iust like evervo ne else. If someon e wrones a Jew o r a black. he

based on hatred directed at a specific group of people to heparticularly abhorrent." The c o w is saying that the criminal iswrong to h e a bigot. But this is no different in principle fromgiving extrajail time to a m ember of EarthFirst! w ho sabotagesa bulldozer because it is wron g to be an environmentalist.The main principle underlying the First Amendment-thatpeople should not be punished for their beliefs-is also a basicprinciple of justice in liberal societies. Our legal system distin-guishes between acts and ideas. In the cas e of hate crimes, act andidea seem intertwined, so we tend to lose sight of the distinction.

But suppose the gay man beaten by bigots in Ken tucky wasinstead a cancer researcher beaten just a s brutally by anima l-rightsactivists. Many of the same people who would demand extrapunishment for the bigots would object to imposing extrapun ish-ment on the animal-rights activists. Yet the principle is the sam e.On e argument for special laws is that hate crimes otherwisemight be treated less seriously than ordinary crimes, preciselybecause most people do not feel threatened by them or becausethe public is unsym pathetic to their victims. Certainly this was

against w omen). Like affirmative action, hate-crime laws en -force a double standard in the name of treating individualsequally.It's hard to generate much sym pathy for bigots. Perhaps forthis reason, the arguments against hate-crime laws have fo-cused on how they might hurt decent, tolerant, law-abidingpeople like you and me: the chilling effect, the slippely slope,and s o on. W hile these arguments have merit, they leave theimpression that hate-crime laws might be all right if we couldavoid such side effects.People find it hard to accept that penalty enhancement itselfis unjust, because deep dow n they sense that a crime is worsewhen it's motivated by bigotry. This feeling is a healthy sign,because it sho ws that those who express ithave rejected intoler-ance. We hate the crime mo re because of the idea it represents.It is right that w e shou ld, but it is wrong for the law to adoptthe same attitude. nJacob SuNum is associate editor of REASON,

DECEMBER 1992

what's hate got to do with it

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