Jesse Larner sounds a shrill alarm in his broadside against hate crime laws ("Hate Crime/Thought Crime," Spring 2010), raising a variety of seemingly dire libertarian, First Amendment, and slippery-slope arguments. Yet, despite the fact that federal and state hate crime laws have been on the books for forty years, he fails to illustrate his parade of horribles with a single actual case to demonstrate the kind of "policing of mind and tongue" about which he frets.
Larner recognizes that hate crimes are a "real problem" and asks many of the right questions about the purpose and application of these laws. But Larner's questions have been thoroughly examined—and answered—by police officials and prosecutors who have enforced them and by dozens of court decisions interpreting these laws.
Larner is wrong about the impact of hate violence, the policy purposes of hate crime laws, and their constitutionality.
The Policy Rationale
The starting point is to recognize that criminal activity motivated by bias is different from other criminal conduct.
First, these crimes occur because of the perpetrator's bias or animus against the victim on the basis of actual or perceived status—the victim's race, religion, national origin, gender, gender identity, sexual orientation, or disability is the reason for the crime. In the vast majority of these crimes, absent the victim's personal characteristic, no crime would occur at all.
One recent, dramatic example of this phenomenon is the murder of Marcelo Lucero, a thirty-seven-year-old Ecuadoran immigrant who was killed in November 2008 in Patchogue, New York. According to the testimony of one of the Long Island teenagers who pleaded guilty to second-degree attempted assault as a hate crime, and other charges, several bored teenagers decided to go "beaner hopping"—a periodic practice in which they hunted Hispanics to beat up for sport. They had allegedly already shot at a Hispanic man on his porch with a BB gun and harassed another Hispanic man on a bike when they came across two Hispanic men near the Patchogue train station. The teenagers taunted the two with racist names and picked a fight. During the fight, Lucero was knifed. He subsequently died.
Second, hate violence is intentionally, specifically targeted at individuals because of their personal, immutable characteristics. These are, therefore, very personal crimes, with very special emotional and psychological impact on the victim—and the victim's community. Hate crimes physically wound and may effectively intimidate other members of the victim's community, leaving them feeling terrorized, isolated, vulnerable, and unprotected by the law. By making the victim's community fearful, angry, and suspicious of other groups—and of the power structure that is supposed to protect them—these incidents can damage the fabric of our society and fragment communities. Larner cites House Judiciary Committee Chair John Conyers and former Human Rights Campaign senior counsel Cristina Finch for this proposition, but he is much too dismissive of its significance.
Hate crimes are message crimes. Gay men beaten outside of a gay bar are rarely robbed. Vandals do not often spray-paint messages like "Jane Loves Bobby" on the side of synagogues; it is much more frequently defacement featuring threats and a swastika. And bigots do not burn parallelograms on the front lawns of African American families who have just moved into a previously all-white neighborhood. The message of the parallelogram might be misunderstood. Not so the remains of a burned cross. As Supreme Court Justice Sandra Day O'Connor wrote in a 2003 case involving a First Amendment challenge to the Commonwealth of Virginia's cross-burning statute:
… the burning cross often serves as a message of intimidation, designed to inspire in the victim a fear of bodily harm. Moreover, the history of violence associated with the Klan shows that the possibility of injury or death is not just hypothetical.…when a cross burning is used to intimidate, few if any messages are more powerful. (Virginia v. Black, 538U.S.343, 357 )
In addition, over the past thirty years, many studies and surveys about hate violence—and the impact on the victims—indicate that these crimes are qualitatively different from other crimes. They are more serious ("…hate crimes are inherently more harmful to the social fabric than comparable crimes without bias motive," McDevitt, Balboni, Garcia, and Gu, 2001); more likely to involve violence ("…the victim of a hate crime assault is four times more likely to require hospital treatment than the victim of a parallel assault." McDevitt and Levin, 1993); more harmful in their aftermath ("The negative effects of hate crimes may be longer lasting than those of other crimes." Herek, Gillis, and Cogan, 1999).
Few individual crimes can spark riots, but bias-motivated crimes can. Civic leaders and police officials have come to recognize that strong enforcement of these laws can have a deterrent impact and can limit the potential for a hate crime incident to explode into a cycle of violence and widespread community disturbances.*
The FBI and law enforcement officials recognize the special impact of hate crimes. The FBI has been the nation's repository for crime statistics since 1930. It publishes an annual encyclopedic report called Crime in the United States. Every year, the FBI disaggregates that data and publishes two—only two—other separate reports on crime issues that it believes have a dramatic impact on Americans. One report is focused on law enforcement officers killed in the line of duty and the other is about hate crimes in America. In 2008, 13,690 police agencies reported 7,783 hate crimes—almost one hate crime for every hour of every day. Race-based hate crimes were most frequent, second were religion-based (anti-Jewish crimes composed a disturbing 66 percent of the reported religion crimes), and third most frequent were crimes against gay men and lesbians.
Larner seems to recognize the special nature of hate violence when he asserts that crimes in which the victim is intentionally selected for violence on the basis of racial bigotry can be rightly condemned as "morally worse" than other crimes. However, then he questions whether society can act to make them "legally worse."
We can and we should.
It was Sir William Blackstone, the eighteenth-century British legal scholar, who said that "it is but reasonable that among crimes of different natures those should be most severely punished, which are the most destructive of the public safety and happiness." In recognition of the odious nature of these crimes and their serious impact, it is entirely appropriate that they be treated differently.
We cannot outlaw hate, but laws shape attitudes. And attitudes influence behavior. We Americans have communally determined to try to prevent and remedy bigoted behavior in the housing market or workplace through thousands of federal, state, and local laws that prohibit invidious discrimination because of race or other identifying personal characteristics. In fact, hate crime laws are a criminal justice system parallel to these laws. In language, structure, and application, the majority of the nation's hate crime laws are directly analogous to anti-discrimination civil rights laws. Under our nation's workplace civil rights laws, for example, an employer can refuse to hire, fire, or fail to promote non-unionized employees for virtually any reason. It is only when that decision is made "by reason of" race, religion, national origin, gender, or disability (and in too-few state and local jurisdictions, sexual orientation) that the conduct becomes unlawful.
First Amendment Protections
Hate crime statutes—federal criminal civil rights statutes and laws now on the books in forty-five states and the District of Columbia—do not punish speech or thoughts. The First Amendment does not protect violence, nor does it prevent the government from imposing criminal penalties for violent discriminatory conduct directed against victims on the basis of their personal characteristics. Americans are free to think, preach, and believe whatever they want. It is only when an individual commits a crime based on those biased beliefs and intentionally targets another for violence or vandalism that a hate crime statute can be triggered.
Under these laws, a perpetrator can face more severe penalties only if the prosecutor can demonstrate, beyond a reasonable doubt, that the victim was intentionally targeted on the basis of his or her personal characteristics because of the perpetrator's bias against the victim.
Over the years, federal and state hate crime laws have been upheld against a variety of challenges under the Fourteenth Amendment's equal protection clause and due process clause, and under the First Amendment. The most important case,Wisconsin v. Mitchell, involved a challenge to Wisconsin's penalty-enhancement hate crime statute, under which Mitchell had received an enhanced sentence for having instigated a vicious racial assault by a group of young black men against a white boy in Kenosha, Wisconsin.
Larner wrongly claims that Mitchell was convicted "under a statute that criminalizes bigoted speech leading to violence." The Wisconsin hate crime law does no such thing. Instead, it provides enhanced sentencing when the perpetrator "intentionally selects the person against whom the crime [is committed] in whole or in part because of the actor's belief or perception regarding the race, religion, color, disability, sexual orientation, national origin or ancestry of that person…" Speech is not criminalized. The crime is triggered by conduct—when the perpetrator intentionally selects the victim for violence or vandalism because of the victim's personal characteristic.
The Supreme Court held that the Wisconsin statute was intended to address conduct that the Wisconsin legislature thought would "inflict greater individual and societal harm." Removing any doubt that such laws wrongly penalize speech, the Court held,
The First Amendment … does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent. Evidence of a defendant's previous declarations or statements is commonly admitted in criminal trials subject to evidentiary rules dealing with relevancy, reliability, and the like. (Wisconsin v. Mitchell, 508 U.S. 476, 478 )
The case attracted unusual attention. Among those who urged the Court to uphold the Wisconsin hate crime statute were many major law enforcement and civil rights organizations, including the National ACLU and the Anti-Defamation League (filing a brief for sixteen national civil rights and law enforcement organizations, including the unlikely pairing of the Fraternal Order of Police and the Center for Constitutional Rights) and a brief filed by the attorney general of Ohio on behalf of the other forty-nine states and the District of Columbia.
Larner plainly does not much like the Court's holding in Mitchell. He warns ominously about the First Amendment implications of the decision: "We are living with them now." But then: nothing! Eighteen years after the Supreme Court's decision, he fails to cite a single case to illustrate his dire concern—no misapplications of a statute, no overreach by a federal or state prosecutor, no sliding down a slippery slope.
Larner concludes with a final warning about the future: "[m]ake no mistake: hate crime laws do set us up for hate speech laws." He rightly notes that hate crime laws require an underlying crime—that speech or thought alone cannot create legal liability. But then he asserts that "it is but a small step" to criminalizing speech or thought alone. To illustrate his assertion, Larner detours northward across the border to Canada, where he grew up, to describe the experience Canada has had with criminalizing hate speech.
But the comparison fails. The United States is plainly not Canada—the First Amendment makes the United States unique. Many democratic countries penalize hate speech, and many criminalize Holocaust denial. That is not, however, the U.S. approach—and dire predictions that take into account neither the robust speech protections guaranteed by the First Amendment nor the forty-year experience with federal and state hate crime laws in this country fall flat.
On June 25, 2009, I testified before the Senate Judiciary Committee in support of the Matthew Shepard and James Byrd, Jr. Hate Crime Prevention Act on behalf of a broad coalition of civil rights, religious, education, civic, professional, and law enforcement organizations. I noted then that it was quite unusual for these groups to advocate for expanded federal police powers—and that it was even more extraordinary that we were doing so alongside virtually every major law enforcement organization in the country. This important legislation, signed into law by President Obama on October 28, 2009, provides important new tools to combat violent hate crimes and encourages federal-state partnerships to investigate and prosecute them.
We should have no delusions about hate crime laws. Bigotry, racism, homophobia, and anti-Semitism cannot be legislated out of existence. The law is absolutely a blunt instrument; it is much better to prevent these crimes from happening in the first place.
But when these crimes do occur, we must send an unmistakable message that they matter, that our society takes them very seriously. Hate crime laws demonstrate an important commitment to confront and deter criminal activity motivated by prejudice. Like anti-discrimination laws, hate crime statutes are content-neutral, color-blind mechanisms that appropriately allow society to redress a unique type of wrongful conduct in a manner that reflects that conduct's seriousness.
Hate violence merits priority attention—and hate crime laws help ensure they receive it.
Michael Lieberman is Washington Counsel for the Anti-Defamation League. He has testified in support of hate crime laws in Congress and state legislatures, trained law enforcement officials in training academies across the country, and chaired the broad coalition of civil rights, religious, civic, and professional organizations in Washington working to improve the federal response to hate violence.
*The Leadership Conference on Civil Rights Education Fund has published a comprehensive report on hate violence in America,Confronting the New Faces of Hate: Hate Crimes in America 2009, of which this writer is a co-editor. It is available online.