CHAPTER TWO
What is Hate Crime?
[C]rimes motivated by bigotry usually arise not out of the pathological rantings and ravings of a few deviant types in organized hate groups, but out of the very mainstream of society.
Jack Levin and Jack McDevitt, Hate Crimes.
The Rising Tide of Bigotry and Bloodshed
We cannot talk about how much hate crime exists in the United States orwhat to do about it until we are clear about what a hate crime is. Thischapter shows that the concept of hate crime is loaded with ambiguitybecause of the difficulty of determining (1) what is meant by prejudice; (2)which prejudices qualify for inclusion under the hate crime umbrella; (3)which crimes, when attributable to prejudice, become hate crimes; and (4)how strong the causal link must be between the perpetrator's prejudice andthe perpetrator's criminal conduct.
Complexity of Prejudice
"Hate" crime is not really about hate, but about bias or prejudice. As we willsee in chapter 3, statutory definitions of hate crime differ somewhat fromstate to state, but essentially hate crime refers to criminal conduct motivatedby prejudice. Prejudice, however, is a complicated, broad, and cloudyconcept. We all have prejudices for and against individuals, groups, foods,countries, weather, and so forth. Sometimes these prejudices are rooted inexperience, sometimes in fantasy and irrationality, and sometimes they arepassed down to us by family, friends, school, religion, and culture. Someprejudices (e.g. anti-Fascist) are considered good, some (e.g., preferencefor tall people over short people) relativelyinnocuous; but other prejudices provoke strong social and political censure(e.g., racism, anti-Semitism, misogyny). Even in this latter group, as we shallsee, there is a great deal of confusion about what constitutes an acceptableopinion or preference (e.g., "I prefer to attend a historically blackcollege," or "I oppose Zionism and a Jewish state," or "I don't like men as much aswomen") and what constitutes unacceptable, abhorrent prejudice.
Though sociologists and social psychologists have long wrestled withthe concept of prejudice, they have been unable to agree on a singledefinition. One point of consensus is that there are many kinds of prejudice.An individual can be prejudiced in favor of something (e.g., his religion)or prejudiced against something (e.g., someone else's religion).
Some social psychologists have theorized that prejudice may be an innatehuman trait. According to one theory:
Because of various social pressures, we humans have a need to classify and categorize the persons we encounter in order to manage our interactions with them. We have a need to simplify our interactions with others into efficient patterns. This essential simplification leads naturally to stereotyping as a means to desired efficiency. The resultant stereotyping has as an unfortunate side effect, the bigotry and prejudice that so frequently make social relations with others extremely difficult.
Prejudice has also been explained as a "learned behavior." AbrahamKaplan, a professor of philosophy, offers the following illustration: Ayoung child returning from his first day of school is asked, "Are there anycolored children in your class?" to which the child replies, "No, just blackand white." Without instruction, the child has no concept of the prejudicethat gives meaning to the disparaging term "colored." (But one mightwonder how the child developed the constructs of "black" and "white"rather than there just being children with different shades of skin, hair,eyes, etc.)
In his classic book, The Naturee of Prejudice, the late Harvardpsychologist, Professor Gordon Allport, distinguished between hate-prejudiceand love-prejudice. With hate-prejudice, the hater "desires theextinction of the object of hate." Allport characterizes hate as
an enduring organization of aggressive impulses toward a person or toward a class of persons. Since it is composed of habitual bitter feeling and accusatory thought, it constitutes a stubborn structure in the mental-emotional life of the individual. By its very nature hatred is extropunitive, which means the hater is sure that the fault tics in the object of his hate. So long as he believes this he will not feel guilty for his uncharitable state of mind.
Certain groups and individuals (e.g., Nazis, Ku Klux Klan) hold prejudicesthat amount to an ideology, a set of more or less elaborated assumptions,beliefs, and opinions that are espoused as a basis for policy or action.Love-prejudice: occurs when "the very act of affirming our way of life" resultsin prejudice. It consists in "feeling about anyone [or anything] through lovemore than is right." As an example, Professor Allport presents the case of aSouthern woman who stated,
Of course I have no such prejudice [hate-prejudice]. I had a dear old colored mammy for a nurse. Having grown up in the South and having lived here all my life I understand the problem. The Negroes are much happier if they are just allowed to stay in their place. Northern troublemakers just don't understand the Negro.
Allport explained that this woman's love-prejudice was functional inallowing her to defend her position, privileges, and way of life. Althoughher opinion would be labeled racist by most people, she did not viewherself as a racist because she did not hate blacks or northerners, butloved the way her life used to be.
Often groups and individuals reject the accusation that they areprejudiced or argue that their prejudices are justified because they amountto factually correct observations. For example, some white "separatists"and even white supremacists characterize themselves not as anti-black, butas pro-white. (One segment of the Afrikaner population in South Africaadvocates a homeland for Afrikaners to preserve Afrikaner language andculture and insists that this is not an expression of racism towardblacks.) A white person who is persuaded by the evidence presented in CharlesMurray's and Richard Herenstein's controversial book, The Bell Curve, thatthe mean IQ of blacks is lower than the mean IQ of whites might object tobeing labeled a racist. Likewise, some blacks in the United States insistthat Afro-centrism is not (or, at least, is not necessarily) an expression ofanti-white: prejudice. Resolving these claims, especially with respect toparticular groups and situations, is no easy matter.
The apparent case with which individuals develop prejudice has nosingle explanation. Professor Allport noted that "[t]he easiest idea to sellanyone is that he is better than someone else." Accordingly, mostprejudices have some "functional significance" for the individual--theymake the individual feel secure, provide a source of self-esteem, or explainsocial or economic problems (i.e., scapegoating). For some individuals,prejudice may simply be "a matter of blind conformity with prevailingfolkways." In other words, a person may grow up assuming that membersof another group are mean, stingy, dirty, weak, stupid, or inferior, becausethat is what she has always been told. Hatred may not be involvedat all; indeed, some individuals holding such views may view themselves aswell-intentioned paternalists.
Whether prejudice is innate or learned, it is generally agreed that
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 a pathological nature, of traumatic experience, or whether they simply represent conformity to childhood socialization or to an established norm.
Individuals vary in how conscious they are of their prejudices and, ifconscious, in their willingness to admit to their prejudices. While only asmall minority of individuals espouse their prejudices as ideologies, mostdeny that they hold any prejudices, sometimes in good faith and sometimesbecause they are ashamed of them.
As overt racism has become increasingly unacceptable over the pastseveral decades, Americans often deny and repress their prejudices.Thus, psychoanalyst Joel Kovel speaks of the "aversive racist," who
believes in white superiority, but her conscience seeks to repudiate this belief or, at least to prevent her from acting on it. She tries to avoid the issue by ignoring the existence of blacks, avoiding contact with them, or at most being polite, correct, and cold, whenever she must deal with them. Aversive racists range from individuals who lapse into demonstrative racism when threatened ... to those who consider themselves liberals and, despite their sense of aversion to blacks (of which they are unaware), do their best within the confines of the existing social structure to ameliorate blacks' conditions.
There remains a great deal of disagreement about who is prejudicedand what constitutes discrimination. For example, a 1993 Gallup Pollrevealed starkly different attitudes between blacks and whitesregarding civil rights and the amount of discrimination faced byminorities. One question asked: "[o]n average, blacks have worse jobs,income, and housing than white people. Do you think this is mostly dueto discrimination against blacks, or is it mostly due to somethingelse?" Of the black respondents, 44 percent attributed the situationto discrimination, whereas only 21 percent of white respondents chosediscrimination as the cause.
Some writers assert that racial prejudice is nearly universal.Stanford Law School professor Charles R. Lawrence explains:
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 attitudes and beliefs that attach significance to an individual's race and induce negative feelings and opinions about non-whites. To the extent that 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.
Just as Professor Lawrence asserts that all whites harborunconscious feelings of prejudice and racism, Adam Jukes, counselor atthe London Men's Center and author of Why Men Hate Women, also writes:"Do all men hate women? My central contention is that they do." Jukesinsists that men harbor (at the very least) unconscious prejudiceagainst women.
The hatred of women may be, in most cases, a deeply repressed fact of the male character. At one extreme is the rapist or the sexual murderer; at the other extreme is the apparently ordinary man who does not rape or murder, and feels mild and hidden (at least socially) contempt for women, or expresses it only in the privacy of his own home.... These people, at these extremes, are expressing the same feelings, and that the differences between them are quantitative rather than qualitative.
Whether a particular individual or even a particular opinion shouldbe counted as prejudiced is sometimes debatable. For example, is a cabdriver who fears picking up young black males in New York Cityprejudiced, when young black males commit the majority of taxirobberies? Some people argue that supporters of caps on welfarebenefits and those who question the wisdom of affirmative action areracists. Sometimes an individual need not say or do anything towarrant being labeled "prejudiced." For example, a women's studiesprofessor at Brandeis University, Becky Thompson, explained that herteaching methods begin with the premise that "it is not open to debatewhether a white student is racist or a male student is sexist. He/shesimply is." The word "prejudice" is often used so loosely that it cancharacterize the values, beliefs, and attitudes of most Americans.
Consider this example. The National Conference (formerly theNational Conference of Christians and Jews) found that 55 percent ofa survey's respondents believe that Catholics "want to impose theirown ideas of morality on the larger society." The National Conferenceconcluded that this was proof of widespread anti-Catholic prejudice. Acritic might object that the survey respondents were giving anaccurate response based upon their perception that Catholics, or atleast the Catholic Church, had strong feelings and positions onmatters on the social agenda like abortion, homosexuality, governmentaid to parochial schools, and assisted suicide.
If practically everyone holds some prejudiced values, beliefs, andattitudes, every crime by a member of one group against a member ofanother group might be a hate crime; at least it ought to beinvestigated as such. Moreover, since criminals, as a group, aresurely less tolerant and respectful of others than noncriminals, theyare disproportionately likely to be motivated by prejudice. Indeed, inone sense, all (or at least most) violent crimes could be attributed,at least in part, to the offender's prejudice against the victim,based upon the victim's race, gender, age, size, looks, perceivedwealth, perceived attitude, and so forth.
Which Prejudices Transform Crime Into Hate Crime?
Criminals probably have many conscious and unconscious prejudices, forexample, against people who are (or appear to be) rich, poor,successful, unsuccessful, drunks, drug addicts, and so forth. Theseprejudices are not politically salient in contemporary Americansociety, and would not, even if they are motivating factors, transformordinary crime into hate crime. By contrast, racial, religious, andgender prejudice are widely and vigorously condemned. These prejudicesare officially denounced in our laws and political discourse. Hatecrime laws constitute a "next generation" effort. They condemn thesetraditionally and officially designated prejudices when they are heldby and acted upon by criminals. By "officially designated prejudices,"we mean to highlight that not all abhorrent prejudices are chosen bythe federal and state legislatures for official censure. Thelegislatures choose which prejudices they want to officially condemn.In some states, sexual orientation bias is included in the hate crimelaws, in other states it is not. The same goes for gender bias, biasbased upon mental or physical disability, and bias based on age.
The civil rights paradigm that has condemned and outlawed certainprejudices in employment and housing does not apply easily to theworld of crime. The first problem is that some of the groups that arethe classic targets of prejudice serve as active perpetrators ofprejudice-motivated crime. It is true that anti-discrimination lawsprotect white job applicants from being discriminated against by blackemployers, but that scenario rarely arises and, for that reason, doesnot have to be dealt with in considering the desirability ofanti-discrimination legislation. Many commentators continue to portraythe United States as a nation of two races, a dominant and oppressivewhite race and a subjugated and victimized black race. That picture,while a caricature, is more accurate in the context of employment andhousing than with respect to crime. The majority of crimes areintraracial (i.e., the perpetrator and victim are members of the sameracial group). Eighty percent of violent crimesinvolve an offender and victim of the same race. Ninety-two percent ofblack murder victims and 66.6 percent of white murder victims arekilled by murderers of the same race. For the 20 percent of violentcrimes that are interracial, 15 percent involve black offenders andwhite victims; 2 percent involve white offenders and black victims;and 3 percent involve other combinations. Robbery is the crime withthe highest interracial percentage; 37 percent involve victims andoffenders of different races: 31 percent involve black offenders andwhite victims, 4 percent involve other-race offenders and whitevictims, and just 2 percent involve white offenders and nonwhitevictims.
The number of black offender/white victim crimes has made somestrong proponents of hate crime laws uncomfortable. Some argue thatblack offenders who attack white victims are motivated by economicsnot prejudice. A few have proposed removing crimes based uponanti-white prejudice from the definition of hate crime. After theshootings (black perpetrator, white victims) and arson at Freddy'sclothing store in Harlem in 1995, which resulted in the death ofeight people, a number of politicians argued that the crime should notbe seen as a racial incident, but rather as a business dispute over alease between the owner of Freddy's, who was Jewish and the owner ofthe adjacent store, who was black. The crime was committed by a blackman, who previously had participated in demonstrations outsideFreddy's that involved racial insults against customers, and threatsagainst the owner and employees.
Jill Tregor, executive director of San Francisco's IntergroupClearinghouse, which provides legal services and counseling to hatecrime victims, claims that white crime victims are using hate crimelaws to enhance penalties against minorities, who already experienceprejudice within the criminal justice system. One law review authorproposes that in cases of interracial assault by a white offender,prejudice should be presumed, and the burden placed on the defendantto prove the absence of a prejudiced motivation. No such presumptionwould apply in interracial attacks by black perpetrators.
In theory, it would be possible to exclude from the definition of hatecrime those crimes motivated by minority group members' prejudiceagainst whites on the ground that such prejudices are more justifiedor understandable, and the crimes less culpable, or less destructiveto the body politic than crimes by whites against minorities. But suchan argument would be difficult to construct, and might well violatethe Fourteenth Amendment's Equal Protection Clause.
Just as it makes no sense to presume the prejudice of white offendersagainst black victims, it makes little sense to argue that black offenderscannot ever be prejudiced against their white victims. Blackprejudice and even hatred of whites, and especially Jews, is welldocumented. When the Reverend Louis Farrakhan, Nation of Islam leader,mentioned Colin Ferguson, the Long Island Railroad mass murderer, at arally in New York City, the audience cheered. In a speech before anaudience of 2,000 at Howard University, Nation of Islam spokesmanKhalid Muhammad drew loud applause when he stated, "I love ColinFerguson, who killed all those white folks on the Long Island train."Louis Farrakhan is probably the best-known avowedly racist andanti-Semitic black leader, but examples of such prejudice are commonin the black press and radio, at least in the New York City area. OnApril 19, 1989, a white female jogger was beaten and gang-raped by agang of black youths. After months of rehabilitation, she stillsuffered from vision, balance, and olfactory problems. Attorney AltonMaddox, Jr., during a program on black radio station WLIB, claimedthat the gang rape of the "Central Park jogger" was a racist hoax andquestioned whether the victim had really been hurt. "Who," he asked,"had seen the victim before her suspiciously `miraculous recovery?'"The Amsterdam News, a black newspaper, published the victim's name andlabeled the prosecution a racist conspiracy.
A second problem in importing the basic civil rights paradigm fromthe employment and housing contexts to the crime context is the sheerpervasiveness of prejudice, of one type or another, that plays a roleof some kind in a large percentage of crimes. Because of thatpervasiveness it will be difficult to prevent the category of hatecrime, if defined broadly, from expanding to be coextensive with theentire criminal law.
Our basic civil rights paradigm does not deal extensively withprejudice among European ethnic groups. However, such prejudices are asalient feature of American history and still are apparent in somecriminality. Should the criminal law and the criminal justiceapparatus begin hunting out these prejudices in "white-on-white"personal and property crimes?
Perhaps some percentage of black-on-black, Hispanic-on-Hispanic,and Asian-on-Asian crime could also be attributed to prejudice if wescour every crime for evidence. The contemporary multiculturaldiscourse refers to "Hispanics," "Asians," and "Africans" as if theywere single homogeneous groups without divisive ethnicities. Only amoment's reflection is needed to dispel that misconception. Theseclassifications disguise enormous differences, historic animosities,and prejudices.
Asian-American is perhaps the most distortive term. Asia, theworld's largest continent, includes nationality, ethnic, tribal, andreligious groups whose prejudices against one another are every bit aspalpable as European ethnic prejudices. Consider the animosities betweenSunni Muslims and Shiite Muslims and between Muslims and Hindus, betweenMuslims and Sikhs, and between Pakistanis and Indians. Consider theanimosities and hatreds between Chinese and Tibetans, between Japaneseand Chinese, and between Koreans and Japanese . There are intense,centuries-old hatreds held in Vietnam by minority ethnic groupsagainst the majority and in Cambodia by the Khem against theVietnamese minority. Therefore, if hate crime is to become a basiccategory for defining crime, it will be necessary to get beyondthinking of "Asians" as a homogeneous group among whose members onlynonhate crimes exist. Once we begin hunting down prejudices incriminals' motivations, we will find them in abundance.
In the last decade, there has been an increasing amount ofattention to the nationality and ethnic differences masked by theblanket term "Hispanic." But anyone familiar with Latin America andthe Caribbean Islands knows that there are great differences among thepeoples and cultures of this area. Just as European nationality groupshave their own cultures, foods, myths, and histories, so too doArgentineans, Colombians, Cubans, Mexicans, Nicaraguans, PuertoRicans, and so forth. There is no reason to exclude prejudices amongand between these peoples from the hate crime concept.
Sub-Sahara Africa is plagued by ethnic and tribal hatreds. Onlyrecently, the world has been appalled by massacres of the Tutsis andHutus in Rwanda, the Ibo and Hausa in Nigeria, and the Zulu and Xhosain South Africa. If members of these groups immigrate to the UnitedStates and commit crimes against one another, we will have yet anotherpotential species of hate crime. Even the category "African American"disguises ethnic or national prejudices, for example, between Americanblacks and blacks of Caribbean descent. Intrablack prejudice alsoextends to what is called, "colorism," or prejudice based on thedarkness or lightness of skin color. Are all of these ethnic or colorprejudices the proper subject of hate crime laws? If not, whatprinciple enables us to impose extra punishments for offenders who actout only certain prejudices, but not others?
The women's movement emerged as a political force later than theblack civil rights movement, but today it is equally well entrenched.Sexism is widely seen as racism's counterpart, and denunciations ofracism and sexism are frequently uttered in the same breath. Thus, asa matter of first impression, it would be natural to include genderprejudice under the hate crime umbrella, especially in light of theextent to which women as a group are victimized by men. Indeed, crimesagainst women would seem to be the most obvious candidate forrecognition as hate crime. For women, crime is overwhelmingly anintergroup phenomenon. In 1994, women reported approximately 500,000rapes and sexual assaults, almost 500,000 robberies and 3.8 millionassaults. The perpetrator was male in the vast majority of these offenses.
There is every reason to believe that a high percentage of maleviolence against women is motivated, at least in part, by anti-femaleprejudice, especially if prejudice is broadly defined. Practicallyevery act of male violence and intimidation against women is apotential hate crime. Should all crimes by men against women becounted twice, first as generic crimes (murder, assault, rape) andsecond as hate crimes? And should every crime by a male against afemale receive a harsher penalty than the same crime when committed bya male against a male? Surprisingly, as we shall see in chapter 5,there has been strong political resistance to treating crimes by menagainst women as hate crimes.
Discrimination and prejudice based on sexual orientation is themost recent addition to the civil rights movement, but it has not yetbeen fully accepted as an equal. During the last two decades, gay menand lesbians have demanded the same protection against discriminationas blacks, Jews, women, and other groups; they have demandedrecognition as a victimized minority. Although some states andmunicipalities have enacted laws prohibiting discrimination againsthomosexuals, many states and the federal government do not have anylaws extending civil rights protection to homosexuals. The SupremeCourt has held that states can make it a crime for adult homosexualsto engage in voluntary sexual relations. The president of the UnitedStates has ordered that military personnel who are open about theirhomosexuality be dismissed from the armed forces for that reasonalone.
So how should criminal law react to the ambivalence of Americanpolitical institutions? How should the criminal law regard crime byprejudiced heterosexuals against homosexuals? If that is a hate crime,then is it also a hate crime whenever one person attacks anotherbecause he or she dislikes (hates) that person's sexual practices?
Considering all the different contexts where discrimination againstgays and lesbians occurs, none is more compelling than the criminalcontext, with its bloody legacy of "gay bashing." Whatever argumentsmight be made to deny gays and lesbians protection againstdiscrimination in housing and employment, it is hard to imagine anycoherent argument in favor of their exclusion from the hate crimeumbrella. Indeed, such exclusion would rightly be perceived by gaysand lesbians as a case of blatant governmental discrimination.
There are many other prejudices toward which American society hasbecome more sensitive in the past several decades. One prominentexample is ageism--prejudice and discrimination against the elderly.Senior citizens, through their lobbying organization, the AmericanAssociation of Retired Persons, have become a powerful political force,and they have achieved considerable success in having agediscrimination prohibited. If crime based upon race discrimination isan especially heinous crime, then many people will no doubt concludethat crime based upon ageism ought also to be a hate crime trigger.The same kind of logic no doubt will lead advocates for the physicallyand mentally handicapped, undocumented aliens, HIV positive persons,and others to demand special condemnation and extra punishment forcriminals who victimize them. Thus, the creation of hate crime lawsand jurisprudence will inevitably generate a contentious politicsabout which prejudices count and which do not. Creating a hate crimejurisprudence forces us to proclaim which prejudices are worse thanothers, itself an exercise in prejudice. This controversy will reallyhave little to do with appropriate sentencing for criminals andeverything to do with the comparative symbolic status of variousgroups.
The Causal Link
For criminal conduct to constitute a hate crime, it must be motivatedby prejudice and there must be a causal relationship between thecriminal conduct and the officially designated prejudice. Must thecriminal conduct have been totally, primarily, substantially, or justslightly caused by prejudiced motivation? If the criminal conduct mustbe motivated by prejudice to the exclusion of all other motivatingfactors, there will not be much hate crime. Contrariwise, if the hatecrime designation is satisfied by a showing of merely a slightrelationship between prejudice and criminal conduct, a great deal ofcrime by members of one group against members of another group will belabeled as hate crime.
Which Crimes, When Motivated by Prejudice,Constitute Hate Crimes?
Vandalism or criminal mischief involving the defacement of public andprivate property presents another complicated problem. A great deal ofgraffiti, in public and private, expresses disparaging opinions ofwomen, gays and lesbians, Jews, blacks, and other minorities, whites,and other social categories. Should the act of scrawling such graffitibe included in the hate crime accounting system and trigger specialcondemnation and extra punishment? For example, should anti-homosexualgraffiti scrawled on a bathroom wall be counted as a hate crime, orshould it only count as hate crime if the graffiti is directed at anindividual, institution, or place identified with a particular group(e.g., anti-homosexual graffiti on a gay man's home, anti-homosexualvandalism on an AIDS center, or anti-Semitic graffiti in a Jewish cemetery)?
Should hate crimes include the use of racist, sexist, homophobic,and other disparaging epithets combined with in-your-face shouting,gesticulating, and threatening conduct that occurs all too often inthe context of ad hoc arguments and fights on playgrounds, streets,and in the workplace? Consider the following incident involving twoneighbors, a white woman and a Hispanic woman, which was reported tothe New York City Bias Incident Investigating Unit. According to theHispanic woman, her white neighbor insulted her and harassed her withanti-Hispanic epithets. After investigating, the police declined tolabel the incident a "bias crime" because the neighbors had beenengaged in an on-going dispute over building code violations and theepithets had been uttered during a heated argument on this samesubject. In Queens, New York, the following incident was treated as abias crime. A gay male couple knocked on their neighbors door andasked him to turn down the music, which was so loud it shook thewalls. The neighbor refused and hurled anti-gay epithets. Is this ahate crime?
Some instances like this do not qualify as crimes at all becausethey do not pass the threshold that separates offensive speech fromcriminal conduct. But other instances could be classified as criminalharassment or intimidation. Does hate crime include or exclude mixedspeech/ conduct?
The Many Faces of Hate Crime
Hate crime is a potentially expansive concept that covers a greatrange of offenders and situations. We can see this more clearly withthe aid of Table 1. On the horizontal aids we classify the offender'sprejudice (high/ low) and on the vertical axis the strength of thecausal relationship between the officially designated prejudice andthe criminal conduct (high/ low). The table shows that a broaddefinition of hate crime includes many run-of-the-mill crimes thattook far different from the Ideologically driven acts of extremeviolence that often color thinking about this subject.
High Prejudice/High Causation
When we think about clear-cut, unambiguous hate crimes, we call tomind the Ku Klux Klan's 1963 assassination of Medgar Evers or theJune 1984 assassination of Colorado Jewish radio show host, Alan Berg,by five members of Bruder Schweigen ("the Silent Brotherhood"), a neo-Nazigroup. If hate crimes included only cases like these, the conceptwould not be ambiguous, difficult to understand, or controversial. Butit would also not cover many cases and would have little, if any,impact on case outcome, because such crimes are already punished withthe most severe possible sentences.
Table 1 Labeling Hate Crime: The Prejudice and Causal Components
|----------------------------------| | | | | High Prejudice/ | Low Prejudice/ | High | High Causation | High Causation | | I | III | | | |Strength of |----------------------------------|Causal Relation | | | | High Prejudice/ | Low Prejudice/ | Low | High Causation | High Causation | | II | IV | | | | |----------------------------------| High Low Degree of Offender's Prejudice
Cell I on our table also includes hate crimes by individuals whoseprejudices are emotionally intense, but who are not part of anyorganized group. Consider Colin Ferguson, the black man who murderedsix white commuters and wounded 19 others on the Long IslandRailroad in December 1993. After the shooting, police found anote in his pocket explaining that he chose Long Island as the venuebecause it was predominantly white. In the note Ferguson expressedhatred for Asians, whites, and "Uncle Tom Negroes." Some commentatorssaid Ferguson's murders were not hate crimes because he was mentallyill or because he was prejudiced against "Uncle Tom Negroes" as wellas whites and Asians. According to Bob Purvis, legal director of theUniversity of Maryland's Center for the Applied Study ofEthnoviolence, the Ferguson rampage was not a hate crime: "By itsnature, a mass murder is a crime born of immense psychiatricdisturbance.... Mass murder is mass murder; it's not a hate crime."This argument, in effect, says that bona fide prejudice is irrationalbut not so irrational as to lead to crimes of grand scale. Suchreasoning might lead to the bizarre conclusion that Hitler was notprejudiced and the Holocaust not the ultimate hate crime. In short, weare quite prepared to accept that prejudice often includes extremeirrationality and even mental instability.
Here are some other cases that we think fall easily into cell I ofthe table.
* In November 1995, Robert Page, a white man, attacked Eddy Wu, an Asian man, stabbing him twice in the back puncturing a lung, in the parking lot of the Lucky Food Center. In a statement to police, Page said, "It all started this morning. I didn't have anything to do when I woke up.... So I figured, what the fuck, I'm gonna go kill me a Chinaman."
* In September 1990, a group of Kentucky youths beat a gay man with a tire iron, locked him in a car trunk containing snapping turtles and then tried to set the car on fire. The victim suffered severe brain damage.
* In December 1995, Roland Smith, a protester who participated in a boycott of Freddy's, a Jewish-owned clothing store, entered the store, shot four white people, and set the store on fire, killing the owner and six other white and Hispanic people. Smith also died in the fire. Before the attack, he reportedly said, that he would "come back and burn and loot the Jews." Upon entering the clothing store, Smith ordered all blacks to leave and started shooting the whites.
* Serial killer Joel Rifkin admitted to killing at least seventeen women from the late 1980s until 1993. According to psychiatrists who testified at his trial, since childhood Rifkin was obsessed by violence against women.
Some commentators would not label Rifkin a hate criminal, because ofhis mental instability or because they believe misogyny should not bea hate crime trigger. It seems to us that psychosis or mentalpathology cannot negate prejudice without stripping the concept ofsome of its meaning. Moreover, it is very difficult to imagine anintellectually coherent hate crime category that would include crimesmotivated by racism but not crimes motivated by sexism/misogyny.
High Prejudice/Low Causation
In cell II, we find crimes committed by extremely prejudiced offenderswhose crimes are not solely or strongly motivated by prejudice.Generally, these crimes, including the following examples, are notclassified as hate crimes. However, we include this category topresent a more complete picture of the configurations that prejudice,crime, and causation can take. It should not be presumed that everylaw violation committed by highly prejudiced individuals is a hatecrime and it is not sound to use the hate crime laws to persecutepersecutors. Suppose that the neo-Nazi leader, Tom Metzger, was toshoplift merchandise from a store owned by Jews?He might contest the hate crime designation by sayingthat although he abhors Jews, his primary motivation was to acquiresome goods for free and that had a Jewish store not been available hewould have stolen the merchandise from a non-Jewish store. The factthat the victims were Jewish was only of secondary importance.
* In 1986, David Dawson escaped from a Delaware prison. Dawson, while burglarizing the home of Richard and Madeline Kisner, murdered Mrs. Kisner. After a conviction for first-degree murder, the prosecution attempted at the capital punishment sentencing stage to introduce evidence of Dawson's membership in the White Aryan Brotherhood. The Supreme Court held that introduction of this evidence violated the First and Fourteenth Amendments because "the Aryan Brotherhood evidence was not tied in any way to the murder of Dawson's victim."
* In 1996, federal agents arrested a gang of four men, who committed 22 bank robberies throughout the Midwest during a two-year period. Law enforcement officials dubbed the gang, "the Midwestern bank bandits," but the men called themselves the "Aryan Republican Army." The Aryan Republican Army used money from the bank robberies to finance their revolution against the federal government and the extermination of all Jews.
Low Prejudice/High Causation
Cell III includes the majority of hate crimes covered by the new waveof American hate crime laws. The offenders in this category are notideologues or obsessive haters; some may be professional or at leastactive criminals with short fuses and confined psyches; some may behostile and alienated juvenile delinquents; others may be ignorant,but relatively law-abiding Archie Bunker types. The prejudices of suchindividuals are to some extent unconscious. Whether or not the authorsof hate crime legislation meant to cover these offenders, these arethe individuals who dominate the statistics. The following cases aregood examples:
* During a two-year crime spree, which culminated in a 1993 conviction for kidnapping, murder, and attempted murder, Dontay Carter targeted white men as his favorite robbery victims. Carter used his victims' credit cards to rent expensive hotel rooms and purchase jewelry and other luxury items for himself and his friends. No racial epithets were uttered during the crimes. According to Carter, who characterized himself as a victim of white oppression, he targeted white men because they are all rich.
* In May 1991, in Rumson, New Jersey, a 19 year-old male who had been drinking and smoking marijuana painted a swastika and the words "Hitler Rules" on a synagogue, and then proceeded to paint a satanic pentagram on the driveway of a Christian church. During the sentencing hearing, the defendant, Steven Vawter, told the judge, "I want to apologize. This is not the crime you think it is. I don't have a racist bone in my body. I don't hate anybody." The judge sentenced Vawter to four months imprisonment, but stated that Vawter's behavior was an aberration. The judge explained that during the trial evidence about Vawter's character and letters of support from "people of all walks of life" showed he was not a hatemonger.
* In December 1995, in Fayetteville, North Carolina, Randy Lee Meadows, a soldier stationed at Fort Bragg, was charged with conspiracy to commit murder in the shooting deaths of a black couple. Meadows joined fellow soldiers Malcolm Wright and James Burmeister, both avowed white supremacists, at a local bar. According to the police, Meadows drove the car and "was apparently just along for the ride and did not share the racist views of the other two men." When he heard the gun shots, Meadows ran out of the car to where the victims lay on the ground.
Low Prejudice/Low Causation
Many crimes which fall into cell IV are "situational"; they resultfrom ad hoc disputes and flashing tempers. Sometimes these incidentsare counted as hate crimes, but sometimes they are not.
* In 1993, an on-going dispute over grass clippings in San Jose, California culminated in a hate crime conviction. William Kiley, a gay man, lived across the street from the H. family and also owned the house next door to the H's, which he rented to a tenant. The trouble began in 1988 when Kiley's tenant's dog bit Mrs. H. She sued and Kiley was forced to pay damages; his tenant had to have the dog destroyed. Three years later, animosity between the H's and Kiley came to a head after Kiley purchased a lawnmower that had no grass catcher. When Kiley mowed the tenant's lawn, grass clippings blew onto the H.'s driveway. The H's frequently complained about the grass clippings. After six months, arguments over the grass clippings became so unpleasant that Kiley stopped mowing the lawn. The first time Kiley resumed mowing the lawn Mr. H. yelled at Kiley, "You cocksucker, I'm tired of your fucking games." Kiley interpreted this as harassment because of his sexual orientation. Later that day, Joshua, the H's son, asked Kiley to clean the grass off the driveway. Kiley agreed and swept the grass clippings into the street. Later in the day, Kiley discovered a pile of dirt and grass clippings on his front porch. When him. H. saw Kiley throwing the clippings back in their driveway, Mrs. H. said that all she wanted was for him to be "a reasonable neighbor." Yelling ensued and Mr. H. called the police. Joshua H. started shouting at Kiley to clean up the grass, calling him a "faggot," a "queer," and a "punk." Joshua, with his fists in the air, challenged Kiley to "come on, let's get it on you faggot queer." When Kiley ordered Joshua to get off his property, Joshua hit him. In retaliation, Kiley squirted Joshua with a hose. Enraged, Joshua hit and kicked Kiley several times. Joshua was convicted of bias-motivated assault--a felony.
* On December 23, 1993, the theft of a winter solstice banner depicting a yellow sun that said "Solstice is the reason for the season" was investigated by Wycoff, New Jersey police as a hate crime against atheists. The banner, erected by the New Jersey Chapter of American Atheists, was part of a holiday display open to all groups--Christian, Jewish, atheist, or any other group that wished to put up holiday decorations. A spokesperson for the American Atheists stated that the theft sends a message that "atheists will not be tolerated in Wycoff. It's like burning a cross on an African-American's lawn." No anti-atheist graffiti or other evidence indicating prejudice accompanied the theft.
Conclusion
"Hate crime" is a social construct. It is a new term, which is neitherfamiliar nor self-defining. Coined in the late 1980s to emphasizecriminal conduct motivated by prejudice, it focuses on the psyche ofthe criminal rather than on the criminal's conduct. It attempts toextend the civil rights paradigm into the world of crime and criminallaw.
How much hate crime there is and what the appropriate responseshould be depends upon how hate crime is conceptualized and defined.In constructing a definition of hate crime, choices must be maderegarding the meaning of prejudice and the nature of the causal linkbetween the offender's prejudice and criminal conduct.
"Prejudice" is an amorphous term. If prejudice is defined narrowly,to include only certain organized hate-based ideologies, there will bevery little hate crime. If prejudice is defined broadly, a highpercentage of intergroup crimes will qualify as hate crimes. If only aselect few crimes, such as assault or harassment, can be transformedinto hate crimes, the number of hate crimes will be small. Ifvandalism and graffiti, when motivated by prejudice, count as hatecrimes, the number of hate crimes will be enormous. If criminalconduct must be completely or predominantly caused by prejudice inorder to be termed hate crime, there will be few hate crimes. Ifprejudice need only in part to have motivated the crime, hate crimewill be plentiful. In other words, we can make the hate crime problemas small or large as we desire by manipulating the definition.
There are many different types of prejudices that might qualify forhate crime designation. Some civil rights and affirmative actionlegislation speaks in terms of "protected groups," but this does noteasily apply in the hate crime context because when it comes to crime,all victims are a protected group. Why should some victims beconsidered more protected than others?
Continues...
Excerpted from Hate Crimesby James B. Jacobs Copyright © 2000 by James B. Jacobs. Excerpted by permission.
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