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by James B. Jacobs
ON MAY 29, 1989, a white man, David Wyant, occupied a compsite next to Jerry White, an African-American. White complained to the park authorities that Wyant was playing his music too loudly during "quiet hours." White and his companion later heard three comments directed at them from the Wyants' campsite: 1) "We didn't have this problem until those niggers moved in next to us"; 2) "The black motherfucker over there; I will take this gun and kill him"; 3) "In fact, I will go over and beat his black ass now."
On the basis of these statements, without any accompanying conduct or evidence that there actually was a gun, Wynat was convicted of "ethnic intimidation" and sentenced to eighteen months incarceration.
State v. Wyant is the kind of case that ought to be carefully considered by proponents of hate crime legislation. The imagery that animates the passage of such legislation posits hardcore racists and anti-Semites waging a systematic campaign against blacks and Jews. By contrast, most of the cases that are labeled hate crimes result from impulsive behavior or situational disputes, often involving juveniles. One could easily think of the Wyant case as a fight about noise at a campground that activated the defendant's racial prejudice. Such prejudice is certainly not pretty but, unlike hardcore neo-Nazism, is widespread and often bubbles to the surface in the arguments, altercations, and conficts that punctuate life in a multi-racial and multi-ethnic society. This kind of prejudice certainly needs attention, but not the kind of attention that is provided by elevating an occasional low-level, harassment-type crime into a serious offense.
The problem of motive
Wyant also reveals a more serious flaw in hate crime legislation. Criminal law has long struggled to define the criminal intent (mens rea) that transforms a harm into a crime. Defining criminal motivation is even trickier, because it requires getting to the source of the defendant's intent. For this reason criminal law generally has steered clear of motivation.
Motivation is particularly problematic in hate crime cases because thB presumed motive, "prejudice," defies precise definition. According to the Intelrnational Encyclopedia of the Social Sciences:
Prejudice is not a unitary phenomenon ... [I]t 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.
Indeed, some people speak of prejudice as being unconscious as well as conscious. Consider the view of Charles Lawrence III, an influential professor of law at Stanford University:
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 ideas, attitudes and beliefs that attach significance to an individual's race and induce negative feelings and opinions about non-whites. To the extent tha[ 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.
If prejudice is this pervasive, subtle, and complex, the criminal justice system will certainly have a hard time sorting out which interracial crimes are motivated by prejudice and which are not. Moreover, recent efforts by law enforcement agencies and courts to define hate crimes more precisely to do inspire confidence. For example, the U.S. Department of Justice Guidelines, which set out the government's criteria for labeling a hate crime, define ethnic prejudice as a "preformed negative opinion or attitude toward a group of persons of the same race or national origin who share common or similar traits, languages, customs, and traditions." If the prejudice required is no more than "a preformed negative opinion," most interracial crimes could be prosecuted as hate crimes.
Presecutors in hate crime cases must prove not only that the defendant was prejudiced, but that prejudice motivated his crime. But must prejudice be the sole or primary motivation, or simply a comtributing motivation? If prejudice must be the sole or the primary motivation, it will be very difficult to prove a hate crime, since criminal behavior, like all behavior, is almost always motivated by many factors.
If, however, prejudice must be merely a contributing factor, practically any interracial crime could be prosecuted as a hate crime. Contemplate, for example, the percentage of interracial muggings, robberies, and assults in bars that might be said to be "in part" attributable to a preformed negative opinion about the victim's racial group. Thus far, courts and legislatures have opted for an inclusive interpretation, so that in most jurisdictions the prosecution has to prove only that the criminal conduct was "in whole or in part" attributable to prejudice.
In labeling hate crimes there is immense potential for confusion and arbitrariness. In New York City, the police are instructed not to apply the hate crime label to an offense that started off as something else (e.g. a fight over a parking space) and then escalated into name calling. But they are also instructed: "If after applying the [even] criteria listed and asking the appropriate questions, substantial doubt exists as to whether or not the incident is bias motivated or not, the incident should be classified as bias motivated for investigative and reporting purposes."
It is uncertain where things will go from there. Police commissioners and politicians obviously will not wish to have their cites labeled the "hate crime capital." Yet they are also under constant pressure from advocacy groups to recognize racism, anti-Semitism, and homophobia, and they are vulnerable to criticism when they do not denounce, label, investigate, and prosecute various offeneses as hate crimes. So there will probably be a tendency to err on the side of inclusion.
The First Amendment
In R.A.V. v. st. Paul (1991), the Supreme Court, in an opinion by Justice Scalia, held unconstitutional on First Amendment grounds a St. Paul hate ordinance that outlawed symbolic speech (including cross burning and swastikas) which insults or provokes violence on the basis of race, color, creed, religion, or gender.
Although R.A.V. dealt with an ordiance that prohibited offensive "fighting words," the decision also cast a cloud over laws that enhance sentences for ordinary crimes (e.g. harassment, assault, rape) motivated by particular prejudices. Critics of such laws charge that enhancing the sentence of an offender for conduct motivated by politically disfavored opinion, thought, or belief also violates the First Amendment. Adopting that view, the Wisconsin Supreme Court held the state's hate crime enhancement statute to be unconstitutional: "the Wisconsin legislature cannot prohibit bigoted thought with which it disagrees."
In Mitchell v. Wisconsin (1993), however, the U.S. Supreme Court overruled the Wisconsin Supreme Court. Chief Justice Rehnquist's opinion for a unanimous Court noted that, "whereas the ordinance struck down in R.A.V. was explicitly directed at expression, the statute in this case is aimed at conduct unprotected by the First Amendment." The Court also rejected as "simply too speculative" the defendant's argument that the statute would have a chilling effect on speech, causing citizens to fear making prejudiced or racist statements or engaging in politically disfavored activities (reading, memberships, etc.) lest their words or deeds be used against them at some future criminal trial.
In response to the defendant's claim, the Court explained that "the First Amendment does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent." Thus, accoridng to the Court, the admissibility of speech, speech-related, or associational activity can be properly managed under long-established evidentiary rules of relevancy and reliability.
That may turn out to be wishful thinking. In Mitchell, there was testimony of a close relationship between racist speech and criminal conduct--the defendant said to his friends: "Do you feel hyped up to move on some white people?" and "You all want to fuck somebody up? There goes a white boy; go get him." Clearly, the racist speech immediately preceding the brutal assault was relevant to proving that Mitchell had selected his victim because of racial prejudice. But how will the criminal justice system deal with beliefs, words, or associations that are not as closely connected to the criminal conduct?
In interracial cases, should the police routinely investigate the defendant's prejudices: what publications he subscribes to, what organizations he's a member of, what jokes he tells, what stereotypes he holds? Suppose, in Mitchell, that several days or weeks earlier the defendant had told friends or co-workers that he wanted to retaliate against whites for the injustice portrayed in the movie Mississippi Burning. Since prejudice would be an element of the offense, the defendant's conversations and activities regarding prejudice would definitely be relevant and, in my judgment, admissible. I am also led to this conclusion by cases like People v. Aishman (1993), where the fact that one of the defendants wore two tattoos, one a swastika and another reading "Thank God I'm White," was held admissible in considering whether the defendant selected his Mexican-American victim because of ethnicity. While admitting such evidence may not be unconstitutional, it certainly is not consistent with the spirit of a strong First Amendment. It bristles with potential for defendants to be convicted or sentenced more harshly because of their "bad" beliefs and attitudes.
In an effort to defend against a hate crime charge, some defendants may try to prove their lack off prejudice by introducing evidence of non-racist speech, memberships, and activities How could a judge rule such evidence irrelevant? If the defendant is permitted to adduce such evidence, however, the prosecutor will almost certainly be allowed to introduce rebuttal evidence of the defendant's racism.
Thus, there is the all too likely possibility that hate crime trials will degenerate into inquisitions on the defendant's beliefs, attitudes, and personality. In Wyant, the attempt to determine the defendant's motivation led to the following cross-examination:
Q: And you lived next door to [Mrs. Ware, 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. Never had dinner with her?
A. No.
Q. Never gone out 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, no.
Q. You don't associate with her, do you?
A. I talk with 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.
Examinations like this one are unlikely to ease racial tension. Rather, they seem more likely to turn hate crime trials into character tests of the most pernicious kind and to widen social divisions.
Even if judges find a way to limit cross-examination and the admissibility of speech and thought evidence, the defendant's arguably racist words and thoughts will still be ventilated at pretrial and trial hearings on the admissibility of evidence. Even if the jury does not hear the evidence, the media can and will seize on the defendant's beliefs as newsworthy. With prejudice the key factor distinguishing hate crime from ordinary crime, the inevitable result will be the further politicization of the criminal justice process. That can only have a negative effect on racial and other intergroup relations in American society.
Hate crime politics
On the one hand, to denounce hate crimes is to affirm the goal of a fair and tolerant society. On the other, to highlight the prejudicial and racial aspects of as many crimes as possible, transforming the crime problem into a prejudice problem, is to present an unduly bleak picture of the state of inter-group relations and rub salt into the wounds of festering angers and prejudices. Rather than defining violence as a social problem that unites all Americans in a search for a solution, this new approach defines the problem as a composite of different types of intergroup hate, and so may divide the political community.
In the last several years, New York City has experienced a new kind of political controversy: whether a particular crime merits denunciation as a hate crime by the criminal justice system, mayor, police commissioner, and media. These high visibility controversies put the politicians and police brass in a no-win situation. If they do not utter the words "hate crime," they are excoriated by the victim's group for bias and insensitivity. If they do apply the hate crime label, they are similarly criticized by the perpetrator's group for bias, hasty judgment, and double standards.
When the gang rape of the Central Park jogger was not classified as a hate crime (because of a few of the victims of the marauding youths were black or Hispanic), some journalists charged that there exists a double standard, whereby white-on-black crimes are labeled hate crimes, while black-on-white crimes are not. Some women expressed outrage that a gang rape was not considered a hate crime regardless of the racial element. Meanwhile, some black observers denounced the prosecution of the youths as itself racist. To take another example, after Mayor Dinkins forcefully denounced the beating of Ralph Nimmons, a homeless black man, as a bias crime, the Jewish Lubavitcher community reacter angrily to the hate crime charge, claiming that Nimmons had been apprehended burglarizing a school.
The very existence of the hate crime label raises the political and social stakes in intergroup crimes. Groups are beginning to keep score cards. Applying of failing to apply the hate crime label triggers heated political battles. The result is not greater racial and ethnic harmony, but exacerbated social conflict.
Adding hate crime charges in high-visibility interracial cases can make them even more socially divisive. Consider the pending trial in Los Angeles of two black defendants charged with pulling Reginald Denny, a white driver, out of his truck and brutally beating him. What good would be served in charging the defendants with a hate crime and trying to demonstrate their racial prejudice? Doing so would politicize the trial even more, and, given the seriousness of the charges, would have little effect on the actual punishment.
In cases like this, prosecutors frequently do not want the jury to focus on racial prejudice. The fear is a jury polarized along racial lines. Indeed, in the Denny trial and other high-visibility interracial prosecutions, defendants have attempted to turn their trials into referanda on the racist exercise of police and prosecutional discretion.
The basic civil rights paradigm posits whites as the prototypical discriminators or offenders; it does not contemplate discriminate by minorities against whites or against one another. Blacks and Hispanics, however are disproportionately involved in violent crimes. Most of these are intragroup, but many are against whites and members of other minority groups.
While violence by whites against blacks occurs all too frequently, blacks also commit many crimes against whites. Thus, unlike other civil rights legislation and jurisprudence, hate crime laws will not necessarily work to advance the interests of all black Americans (although they might arguably advance the interests of nearly all gays and lesbians, who rarely engage in "heterosexual bashing"). Indeed, at some point in the future, some supporters of hate crime laws may be dismayed to find that these laws are frequently used against black offenders. Anticipating this outcome, several student law review writers have urged that hate crime laws should apply only (or more easily) to white defendants. To my knowledge, these proposals have not been seriously considered by state legislatures.
The politics of victimization
Hate crime legislation attempts, as noted, to import the civil rights paradigm into criminal law. Some groups are defined as needing special protection against discriminatory treatment, albeit not at the hands of government officials or employers, but at the hands of criminals.
If such a status is available, every conceivable minority group will naturally lobby to be included. If the law says that criminal conduct motivated by racism warrants enhanced punishment, why shouldn't crime conduct motivated by sexism and homophobia also be covered? Not surprisingly, many women cannot understand why rape and spouse abuse do not qualify as hate crimes motivated by gender prejudice. Gays and lesbians, who in other contexts have not been fully successful in obtaining recognition as a bona fide minority group entitled to social, legal, and economic advantages, have argued with incontrovertible logic that to ignore the history of gay-bashing in the formulation of hate crime legislation would itself constitute an act of blatant prejudice.
Women and gays and lesbians are slowly obtaining inclusion in hate crime statutes, although their inclusion is by no means universal or uncontroversial. In the state of New York, for example, the legislature has refused to pass a hate crime law that includes gays and lesbians. Some state legislators also have argued that the victimization of women is already recognized in specific criminal statutes. Perhaps without fully realizing it, legislators are resisting the temptation to expand the hate crime label to the extent that it becomes nearly co-extensive with crime itself.
But some states, like Wisconsin, include prejudice based upon mental or physical disability in their hate crime statues. Many other prejudices will undoubtedly be recognized over time (age, marital status, political memberships and beliefs). To exclude any group, once it petitions to have its victimization recognized as equivalent to that of other groups, would provoke justifiable anger. Except where a particular prejudice enjoys substantial support (e.g. anti-gay sentiment in some states), politicians will almost certainly bestow hate crime victim status on practically any group that can make its voice heard; there is no political payoff in opposing such a demand. Eventually, a large percentage of all crimes could qualify for secondary condemnation as hate crimes. At that point, those whose victimizations do not fall within any hate crime category might feel discriminated against.
Hate crime law fits uneasily within the civil rights paradigm. Civil rights laws attempt to extend positive rights and opportunities to minorities and women. They are directed at the conduct of government officials and private persons who govern, regulate, or sell goods and services. By contrast, hate crime law deals with conduct that is already criminal and with wrongdoers who are already criminals. The possibility that criminals can be threatened into not discriminating in their choice of crime victims seems slight. Whether the criminal law can be employed successfully in eradicating or reforming deep-rooted prejudices is doubtful.
Enchancing deterrence
The horrendous crimes that provide the imagery and emotion for the passage of hate crime legislation are already so heavily punished under American law that any talk of "sentence enhancement" must be primarily symbolic. In fact, we have all the criminal and sentencing law we need to respond severely and punitively to criminal conduct inspired, in whole or in part, by prejudice.
I do not mean to say that the availability of enhanced punishments for hate crimes can never have any practical implications. When new powers are given to police and prosecutors, they will be used and from time to time make a difference. This is more likely to happen in low-level crimes which, because of overloaded dockets and jails, would otherwise fall through the cracks but for the added emphasis that a hate crime label might provide.
In speculating about the possible deterrent effect of hate crime laws, we need also take into account some facts about the offenders who commit these crimes. According to data from New York City and Los Angeles, the majority are teenagers. In New York City in 1990, over 50 percent of hate crime arrestees were under the age of nineteen, and over 20 percent were under sixteen. ironically, hate crime laws do not apply to juveniles who are charged with "delinquency" rather than with specific code offenses. Moreover, when juveniles are convicted they are "committed" to juvenile institutions for indefinite terms, not "sentenced"; thus, sentencing enhancement statutes are not applicable. Even if they were, they youthful offenders who are arrested for such crimes are often alienated, impulsive, and generally hostile, hardly the kind of individuals likely to be deterred by sentencing enhancements.
Even if the new wave of hate crime laws does not deter any hate crimes, some advocates, believe these laws are justified because hate crimes are "worse" than other crimes in the same generic offense category and so deserve greater punishment. I agree that certain extremely violent, racist crimes warrant the most intense condemnation, but i would not be prepared to say that these crimes are without moral equals. it is invariably worse to be raped by someone who hates you because of your race, rather than for your gender, appearance, social class, or for no reason at all? Is a racially bigoted rapist deserving of more condemnation than a "merely" hostile and anti-social rapist? Does it really matter whether the rapists in the Central Park jogger case were motivated in whole or in part by racism?
The most horrible crimes--murder, rape, kidnapping, arson--are so devastating that it seems to deprecate the victim's pain and anguish to conclude, as the hate crime laws do, that there is more trauma if the perpetrator is a bigot as well as a brute. If distinctions must be made, wouldn't a more neutral statute make more sense; i.e. a rape warrants enhanced punishment if it involves terror, torture, or substantial gratuitous violence beyond the rape itself? Sentencing law already provides this option in many states.
Those who lobby for more hate crime laws claim that a crime motivated by prejudice ought to be punished more severely than other crimes because the effects ripple out beyond the individual victim; all members of the victim's group are made less secure and, depending upon which groups are involved, there may be retaliation or group conflict. Once again, I believe that this conclusion is applicable to some hate crimes, but I do not believe that every hate crime (e.g. an act of shoving on the subway) generates serious social instability. Moreover, all sorts of crimes have serious social repercussions: carjackings, shootings and stabbings in schools and housing projects, "wildings" in parks, shootouts by rival gangs and drug dealers, and murderous attacks in subways. Over the last several decades, fear of crime has been a prime reason that hundreds of thousands, perhaps millions, of people have moved from cities to suburbs or from one neighborhood to another. Thus, it is surely an exaggeration to say that hate crimes are unique in their impact on people beyond the immediate victims.
The wrong tool
While many civil rights advocates view the passage of hate crime laws as a step toward the reduction of hate crimes and prejudice generally, I am skeptical. To fragment criminal law into specialized laws recognizing a moral hierarchy of motives and offender/victim configuations will have little, if any, crime-control benefit, while carrying serious risks for race relations and social harmony. The attempt to extend the civil rights paradigm to crimes committed by one private party against another is well-meaning but misguided. Prejudice and hate will not be stamped out by enhancing criminal penalties, and considerable damage may result from enforcing these laws. The new hate crime laws both reflect and contribute to the politicization of the crime problem and the criminal justice process, especially around issues of race, and thereby exacerbate social divisions and social conflict.
Reducing prejudice and hate must be a high priority for American society, but more criminal law is the wrong tool. We should exhaust all other strategies of social education and institution-building before pinning our hopes on the criminal law, which has, at best, a very unimpressive record in ameliorating social problems.
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