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A hate crime is a crime committed as an act of prejudice against the person or property of a victim as a result of that victim’s real or perceived membership in a particular group. Many of the most notorious hate crimes have been murders, such as the racially motivated murder of James Byrd, Jr., in Texas in 1998 or the homophobicmotivated murder of Matthew Shepard in North Dakota later that same year. The vast majority of hate crimes, however, are cases of assault or vandalism.
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The critical identifying element of hate crimes is the bias motivation of the perpetrator. The distinguishing factor can be obscured by the very term hate crime, which is the popular term used in connection with bias-motivated violence. In fact, bias crime is a more accurate label. Many if not most crimes are motivated by hatred of one kind or another. Not every crime that is motivated by hatred for the victim is a bias crime. Hatebased violence causes a bias crime only when this hatred is connected with antipathy for a group, such as a racial or ethnic group, or for an individual because of membership in that group. In some form, virtually every state in the United States expressly criminalizes bias crimes.
Elements of Bias Crimes
Bias crime statutes in the United States encompass crimes that are motivated by the race, color, ethnicity, national origin, or religion of the victim. Many reach sexual orientation or gender as well, and some include other categories such as age or disability. Bias crime laws may either create a specific crime of bias-motivated violence or raise the penalty of a crime when committed with bias motivation.
The key factor in identifying an actor as a bias criminal is the motivation for the conduct. Bias crimes are unusual but not unique in their focus on motivation rather than the traditional focus on intent. Some scholars have criticized bias crime laws on this basis, a critique that is addressed below.
There are two analytically distinct, albeit somewhat overlapping models of bias crimes. These models may be referred to as the discriminatory selection model and the group animus model. (In this terminology, group is used to represent all group characteristics that constitute bias crimes, such as ethnicity, race, or religion.)
The discriminatory selection model of bias crimes defines these crimes in terms of the perpetrator’s selection of his victim. It is irrelevant why an offender selected his victim on the basis of race or other group; it is sufficient that the offender did so. The discriminatory selection model received much attention because it was a statute of this model that was upheld by the Supreme Court in Wisconsin v. Mitchell, 508 U.S. 476 (1993). The group animus model of bias crimes defines crimes on the basis of a perpetrator’s animus for the group of the victim and the centrality of this animus in the perpetrator’s motivation for committing the crime. Florida and Massachusetts, among other states, have adopted group animus bias crimes laws. Many and perhaps most cases of discriminatory selection are in fact also cases of group animus bias crimes, but not all. A purse snatcher, for example, who preys solely on women, finding it more efficient to grab purses than to pick wallets out of men’s pockets, would have discriminatorily selected a victim on the basis of gender, but not with group animus.
Most states with bias crime laws have adopted statutes that draw on both models. These laws provide enhanced sentences for crimes committed ‘‘because of ’’ or ‘‘by reason of ’’ the victim’s real or perceived membership in a particular group. Although these statutes lack explicit reference either to discriminatory selection or animus, they share attributes of both. ‘‘Because of ’’ statutes look to the perpetrator’s selection of the victim. In addition, particularly in those states that require a finding of maliciousness, ‘‘because of ’’ statutes are akin to animus as well.
Under any of these models, bias crimes can arise out of mixed motivation where the perpetrator of a violent crime is motivated by a number of different factors in the commission of the crime, bias among them. To constitute a bias crime, the bias motivation must be a substantial motivation for the perpetrator’s criminal conduct. Under the Supreme Court decision in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), all elements of a bias crime must be submitted to a jury (or judge as a trier of fact) and proven beyond a reasonable doubt; a sentence enhancement for a bias crime may not be imposed on a finding by preponderance of evidence by the sentencing judge.
How Bias Crimes Differ from Other Crimes
The justification for bias crime laws turns primarily on the manner in which bias crimes differ from other crimes. Bias crimes cause greater harm than parallel crimes, that is, those crimes that lack a prejudicial motivation but are otherwise identical to the bias crime. This is true on three levels: harm to the individual victim, the victim’s group or community, and the society at large.
Bias crimes generally have a more harmful emotional and psychological impact on the individual victim. The victim of a bias crime is not attacked for a random reason (e.g., the person injured during a drive-by shooting) nor for an impersonal reason (e.g., the victim of a violent robbery). Rather the victim of a bias crime is attacked for a specific, personal reason: for example, race, religion, ethnicity, or sexual orientation. Moreover, the bias crime victim cannot reasonably minimize the risks of future attacks because the victim is unable to change the characteristic that made him a victim in the first place. The heightened sense of vulnerability caused by bias crimes is beyond that normally found in crime victims. Studies have suggested that the victims of bias crimes tend to experience psychological symptoms such as depression or withdrawal, as well as anxiety, feelings of helplessness, and a profound sense of isolation.
The impact of bias crimes reaches beyond the harm done to the immediate victim or victims of the criminal behavior. There is a more widespread impact on the ‘‘target community’’—that is, the community that shares the race, religion, ethnicity, or other group characteristic of the victim. The target community experiences bias crime in a manner that has no equivalent in the public response to parallel crimes. The reaction of the target community goes beyond mere sympathy with the immediate victim. Members of the target community of a bias crime perceive that crime as if it were an attack on themselves directly and individually.
Finally, the impact of bias crimes may spread beyond the immediate victims and the target community to the general society. This effect may be seen on a number of levels, and includes a spectrum of harms from the very concrete to the most abstract. On the most prosaic level—but by no means least damaging—the isolation effects discussed above have a cumulative effect throughout a community. Members of the community, even those who are sympathetic to the plight of the victim family, may be reluctant to place themselves or their children in harm’s way, and will shy away from socializing with the victims, thus exacerbating the problems associated with social isolation.
Bias crimes cause an even broader injury to the general community. Such crimes violate not only society’s general concern for the security of its members and their property but also the shared value of equality among its citizens and racial and religious harmony in a heterogeneous society. A bias crime is therefore a profound violation of the egalitarian ideal and the antidiscrimination principle that have become fundamental not only to the American legal system but to American culture as well. Indeed, when a legislature defines the groups that are to be included in a bias crime law, it unavoidably makes a normative statement as to the role of certain groups or characteristics. Bias crime laws are concerned with those characteristics that implicate social fissure lines, divisions that run deep into the social history of a culture. Thus every bias crime law in the United States includes race as a category; racial discrimination, with its earliest roots in slavery, is the clearest example of a social fissure line in American society. Strong cases can similarly be made for the other classic bias crime categories—color, ethnicity, religion, and national origin. When a state legislature debates the inclusion of other categories to its bias crime law, the debate is partly over the place of those groups in society. Drafting the scope of a bias crime law is necessarily a process that includes the locating of social fissure lines.
Scope of The Problem
Although there is some reason to believe that the level of bias crimes increased over the last two decades of the twentieth century, it remains difficult to gauge whether the bias crime problem has actually worsened. During the 1980s, public concern over the level of bias-motivated violence in the United States rose dramatically. Such concern and the consequent enactment of bias crime statutes across the United States probably stemmed, at least in part, from an apparent worsening of the bias crime problem. Statistics from both independent and governmental datagathering organizations support the conclusion that bias crime increased over the course of the 1980s and, to a large extent, leveled off during the 1990s. These statistics, however, remain inconsistent and incomplete. Moreover, the statistics gathered toward the end of the 1980s and throughout the early to mid-1990s reflected not only a growth in the bias crime problem, but also a growth in legislative and administrative awareness of the problem.
In general, experts and commentators on bias crime agree that these crimes had, throughout the mid and late 1980s and early 1990s, increased annually. The main organizations that collect data on the subject of bias-motivated violence—the Anti-Defamation League, the Southern Poverty Law Center, and the National Gay and Lesbian Task Force—all reported such persistent growth.
In 1990 Congress passed the Hate Crime Statistics Act (HCSA) in an effort to provide official statistics concerning the level of bias crimes. Under this act, the Department of Justice must collect statistics on the incidence of bias crimes in the United States as a part of its regular information-gathering system. The Attorney General delegated the development and implementation of the HCSA to the Federal Bureau of Investigation’s Uniform Crime Reporting Program for incorporation among its sixteen thousand voluntary law enforcement agency participants. Beginning with the HCSA’s implementation in 1991 and through the early 1990s, the F.B.I. documented a general rise in bias crimes. However, these figures, like those reported by other data-gathering organizations, remain vulnerable to charges of inaccuracy. Because the F.B.I.’s numbers simply mirror the numbers reported by state and local law enforcement agencies, and because agency participation under the HCSA is voluntary, the completed data more aptly reflect popular perception of the bias crime problem rather than the problem itself.
There is a mutual-feedback relationship between the bias crime problem and both the popular perception and official response to the problem. A perceived increase in bias crime as fostered by independent data-gathering and reporting leads to increased public concern regarding such crimes. Such concern leads, in succession, to legislative and administrative response, to increased official reporting, and, in effect, to an even greater perceived increase in bias crime. Thus, problem and perception conflate, and the apparent growth in bias crime becomes not simply a reflection of increased hatred and apathy (as the statistics alone would suggest) but also an indication of increased understanding and action (as the increased response to the problem suggests).
On the other hand, there is reason to believe that, despite increased bias crime reporting by police agencies, a majority of bias crime victims do not report incidents at all. Victims’ distrust of the police, language barriers, and fear of either retaliation by the offender or public exposure generally may well lead to systemic underreporting of bias crimes.
In addition to all of the problems with measuring the current level of bias crimes, there is a significant problem with establishing a baseline for a meaningful comparison. Data collection on the levels of bias crimes prior to the mid-1980s was virtually nonexistent. For example, it was not until 1978 that the Boston City Police Department became the first law enforcement agency to track bias-motivated crimes; it was not until 1981 that Maryland became the first state to pass a reporting statute.
It is thus not possible to say with confidence the extent to which bias crimes are increasing and the extent to which the increase is one of perception. However, the obvious relationship between perception and problem in no way undercuts the severity of the problem. Whatever the difficulties of measuring bias crime levels with precision, the existence of a serious level of bias-motivated crime is confirmed. Moreover, the mutual-feedback relationship between the level of bias crime and the popular perception of this level does not necessarily undermine a determination of the severity of the problem. As the understanding of what constitutes a bias crime is broadened, that which may have been dismissed as a ‘‘prank’’ in an earlier time is now properly revealed as bias-motivated criminal conduct. This does not mean that bias crimes are being overcounted; rather it means that previously these crimes were undercounted.
Critique of Bias Crimes
The enhanced punishment of bias-motivated violence has been criticized on a number of grounds. One critique argues that bias crime laws punish thoughts and not criminal acts. This critique itself takes two forms: a constitutional argument that bias crime laws violate the First Amendment right to free expression of ideas, and a criminal law theory argument that bias crime laws improperly focus on motivation rather than mens rea. An additional critique, which applies only to federal bias crime laws, involves questions of federalism and the constitutional authority for such legislation.
The free expression challenges to bias crime laws were the subject of a great deal of scholarly attention as well as a number of judicial opinions. Judicial consideration of the issue culminated in two Supreme Court decisions, R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), which struck down a municipal cross-burning ordinance, and Wisconsin v. Mitchell, which upheld a state law that provided for increased penalties for bias crimes. Three general positions have emerged among observers concerning the challenge to bias crime laws based in principles of free expression. One position argues that bias crime laws unconstitutionally punish thought because the increased punishment is due solely to the defendant’s expression of a conviction of which the community disapproves. A second position permits the enhanced punishment of bias crimes, arguing that bias motivations and hate speech are not protected by the First Amendment. Ironically, these two opposing positions share a common premise: that bias crime laws do involve the regulation of expression.
The third position distinguishes between hate speech and bias crimes, protecting the former but permitting the enhanced punishment of the latter. This has been understood in two related ways. One approach is based on the distinction between speech and conduct, protecting hate speech as the former and punishing bias crimes as the latter. This is the approach adopted by the Court in Wisconsin v. Mitchell. An alternative approach focuses on the perpetrator’s state of mind, and distinguishes behavior that is intended to communicate from behavior that is intended to cause focused and individualized harm to a targeted victim.
The critique that bias crime laws punish bad thoughts rather than criminal acts also has been based on criminal law doctrine. This argument criticizes bias crime laws for impermissibly straying beyond the punishment of act and purposeful intent to reach the punishment of motivation. The argument rests on the assertion that motive can be distinguished from mens rea, based on the formal distinction between motive and intent: intent concerns the mental state provided in the definition of an offense in order to assess the actor’s culpability with respect to the elements of the offense, whereas motive concerns the cause that drives the actor to commit the offense.
Several responses have been made to this critique. First, as a matter of positive law, concern with the punishment of motivation may be misplaced. Motive often determines punishment. In those states with capital punishment, the defendant’s motivation for the homicide stands prominent among the recognized aggravating factors that may contribute to the imposition of the death sentence. For instance, the motivation of profit in murder cases is a significant aggravating factor adopted in most capital sentencing schemes. Bias motivation itself may serve as an aggravating circumstance. In Barclay v. Florida, 463 U.S. 939 (1983), the Supreme Court explicitly upheld the use of racial bias as an aggravating factor in the sentencing phase of a capital case. The Court reaffirmed Barclay in Dawson v. Delaware, 503 U.S. 159 (1992).
A second response to this critique of bias crime laws more broadly questions the usefulness of the formal distinction between intent and motive, arguing that the decision as to what constitutes motive and what constitutes intent largely turns on what is being criminalized. Criminal statutes define the elements of the crime and a mental state applies to each element. The mental state that applies to an element of the crime is ‘‘intent’’ whereas any mental states that are extrinsic to the elements are ‘‘motivation.’’ The formal distinction, therefore, turns on the elements of the crime. What is a matter of intent in one context may be a matter of motive in another. There are two equally accurate descriptions of a bias-motivated assault: the perpetrator possessed a (i) mens rea of purpose with respect to the assault along with a motivation of bias; or (ii) a mens rea of purpose with respect to the parallel crime of assault and a mens rea of purpose with respect to assaulting this victim because of group identification. The defendant in description (i) ‘‘intends’’ to assault the victim and does so because the defendant is a bigot. The defendant in description (ii) ‘‘intends’’ to commit an assault and does so with both an intent to assault and a discriminatory or animus-driven intent as to the selection of the victim. Both descriptions are accurate. The formal distinction between intent and motive may thus bear less weight than some critics have placed upon it. Whether bias crime laws punish motivation or intent is not inherent in those prohibitions. Rather the distinction mirrors the way in which the law describes these crimes.
The federalism challenges to the constitutionality of a federal bias crime law arise from the fact that the vast majority of bias crimes are state law crimes that are motivated by bias. The question of constitutional authority for a federal bias crime law is especially pressing after the Supreme Court’s decisions in United States v. Morrison, 120 S.Ct. 1740 (2000), striking down the civil remedy provisions of the Violence Against Women Act, and United States v. Lopez, 514 U.S. 549 (1995), striking down the Federal Gun-Free Zones Act. Each decision held that the legislation in question exceeded Congress’ authority under the commerce clause. It is partially for this reason that, at the time of writing, there is no pure federal bias crimes statute. Bias motivation is an element of certain federal civil rights crimes such as 18 U.S.C. § 245. Moreover, in 1994, Congress directed the U.S. Sentencing Commission to promulgate guidelines enhancing the penalties for any federal crimes that are motivated by bias. These statutes, however, cover only a small range of cases involving bias motivation.
After Morrison and Lopez, the commerce clause, the constitutional authority for civil rights legislation during the 1960s barring discrimination in public accommodations, housing, and employment, is a more doubtful source for constitutional authority for a federal bias crime law. A more promising source for such authority may lie in the post–Civil War constitutional amendments, at least for bias crimes involving racial, ethnic, and possibly religious motivation. In enacting section 245, Congress expressly relied, in part, upon the Fourteenth and Fifteenth Amendments as authority for the federalization of biasmotivated deprivation of certain specified rights individuals hold under state law. Not all bias crimes deprive the victim of the ability to exercise some right under state law. It has been argued, however, that the Thirteenth Amendment as well provides constitutional authority for a federal bias crime law. The modern view of the Thirteenth Amendment, articulated in Jones v. Alfred H. Mayer, 392 U.S. 409 (1968), and Runyon v. McCrary, 427 U.S. 160 (1976), understands the amendment as a constitutional proscription of all the ‘‘badges and incidents’’ of slavery, authorizing Congress to make any rational determination as to what constitutes a badge or incident of slavery and to ban such conduct, whether from public or private sources. The abolition of slavery in the Thirteenth Amendment, although immediately addressed to the enslavement of AfricanAmericans, has been held to apply beyond the context of race to include ethnic groups and perhaps religions as well. The Thirteen Amendment would not, however, provide constitutional authority for elements of a federal bias crime law reaching sexual orientation, gender, or other categories.
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