A wide range of laws can be used to prosecute hate crimes (also known as bias crimes), which are crimes motivated by bias based on race, religion, national origin, sexual orientation, gender, or other social group membership. First, it is important to remember that almost every case of hate crime can be prosecuted as a violation of the ordinary criminal law (for example, as an assault or trespass), without regard to the defendant’s bias motivation. However, because hate crimes are believed to be more harmful to the individual victim, the targeted social group, and society at large, Congress and most state legislatures have enacted a variety of criminal statutes that directly address bias-motivated acts. These laws include traditional approaches that criminalize specific conduct that has long been associated with racial, ethnic, or religious hatred, and a more modern approach that increases the penalty for criminal conduct based on the defendant’s biased motivation.
Although the idea of treating bias-motivated crime as a distinct category of crime can be traced only to the 1980s. The United States and most of the individual states have for well over a century had laws specifically addressing acts that today we would label hate crimes. These older laws take primarily two approaches: (1) criminalizing civil rights violations and (2) outlawing particular acts that historically have been associated with racial, religious, and ethnic hatred and violence.
The civil rights approach dates back to the enactment of the oldest of the relevant federal statutes, 18 U.S.C. section 241 (‘‘Conspiracy against rights’’) and section 242 (‘‘Deprivation of rights under color of law’’), during the post–Civil War Reconstruction Era. In addition to those laws, the major federal criminal civil rights statutes used to prosecute hate crime are 18 U.S.C. section 245 (‘‘Federally protected activities’’), 18 U.S.C. section 247 (‘‘Damage to religious property; obstruction of persons in the free exercise of religious beliefs’’), 18 U.S.C. section 248 (prohibiting interference with religious freedom), and 42 U.S.C. section 3631 (‘‘Prevention of intimidation’’ provision of the Fair Housing Act). The federal government prosecutes hate crimes primarily as civil rights violations, and several states have enacted statutes modeled on the federal laws.
The essence of a civil rights offense is interference with the free exercise of a right protected by law. Therefore, the key element under these statutes is that the defendant intended to intimidate the victim in or to interfere with the free exercise of rights under the constitution or laws of the United States or a particular state. Some of these statutes—particularly the newer ones—also require the prosecution to prove that the defendant was motivated by bias; they therefore resemble antidiscrimination laws in many respects.
Another group of traditional statutes takes a different approach, prohibiting specific acts that historically have been associated with racial, religious, and ethnic hostility, primarily practices that traditionally were employed by the Ku Klux Klan. The common theme of these laws is the prohibition of acts that induce fears of persecution, particularly in members of minority groups. Thus, several states have criminalized cross burning and the placement of similar exhibits, including Nazi swastikas, that have traditionally been interpreted as threats of violence or physical intimidation against a particular group.
Many states also have enacted special institutional vandalism statutes to punish individuals who deface or destroy churches, synagogues, and other institutional property, such as monuments, memorials, or cemeteries, that are associated with or significant to particular groups. Related statutes prohibit interfering with religious worship or obstructing a person in the free exercise of his or her religion. Finally, several states have ‘‘anti-mask’’ statutes, which prohibit wearing a mask or hood under specified circumstances. These statutes were enacted in two waves during the 1920s and 1950s, in response to the terrorism of minority groups that was practiced by ‘‘nightriding’’ members of the Ku Klux Klan, who carried out campaigns of violence and intimidation while wearing the traditional Klan regalia of white robe, hood, and mask.
Like the modern, penalty enhancement approach discussed below, these statutes have been vulnerable to constitutional challenge based upon the First Amendment right to freedom of expression. The most vulnerable of the traditional statutes have been those that prohibit conduct that may be viewed as expressive or symbolic, such as cross burning or mask wearing. Conduct of this type lies on the boundary between hate crime and hate speech, and a number of cross-burning and anti-mask statutes have been struck down in cases where courts found that they regulated expressive conduct. In cases where the courts have found the statutes to punish intimidation or threats, however, the statutes have tended to survive constitutional attack.
The newest and most controversial hate crime laws are penalty enhancement statutes. These laws increase the punishment for a crime in a case where the prosecution proves that, in committing the crime, the defendant was motivated by bias based upon the race or other group-based status of the victim, such as religion or gender. Penalty enhancement laws have generated a great deal of controversy, with many critics arguing that they are unconstitutional because they punish a defendant for his or her unpopular or offensive viewpoint, thereby infringing on the right to freedom of speech and thought, or unwise because their focus on the defendant’s bias draws attention to tensions between groups. Nevertheless, the penalty enhancement approach has gained widespread acceptance, and almost every state now has a penalty enhancement or ethnic intimidation statute for prosecuting hate crimes. The federal sentencing guidelines also incorporate the penalty enhancement approach, in a provision (U.S.S.G. sec. 3A1.1[a]) that directs the sentencing court to adjust the sentence for a federal crime upward based upon the defendant’s biased motivation.
The Anti-Defamation League of B’nai B’rith introduced the penalty enhancement approach in 1981, when it published its model ethnic intimidation statute. Under this model, punishment for conduct that already violates some provision of the criminal code is to be increased if the defendant committed the crime ‘‘by reason of the actual or perceived race, color, religion, national origin, sexual orientation, or gender of another individual or group of individuals.’’ States that follow this model typically either adopt the enhancement as a separate sentencing provision or create a new, higher-grade crime that comprises an existing crime plus a bias motive. States vary in their designations of which crimes are subject to hate crime enhancement; some state statutes provide that the enhancement applies only to specified crimes (such as trespass, harassment, intimidation, assault, and battery), while others would apply the enhancement to any crime.
The identifying feature of ethnic intimidation laws is their focus on the defendant’s bias-related state of mind. The precise phrasing of the prohibited state of mind varies from statute to statute, with most states defining a bias crime as one in which the actor committed the offense ‘‘because of’’ another person’s race or other protected status. Some statutes also require that the defendant be motivated by malice or animus. All hate crime penalty enhancement statutes punish bias based on race, color, religion, or national origin. In addition, several statutes include other protected categories, such as gender, handicap, age, disability, or sexual orientation.
All of the hate crime laws discussed above have raised constitutional and policy questions, but the most controversial have been the penalty enhancement statutes.
The penalty enhancement approach stirred controversy from the beginning. During the early 1990s, the debate centered on fundamental issues concerning the constitutionality, legitimacy, and wisdom of penalty enhancement. Proponents of the laws contended that they were needed in order to recognize the unique and serious harms that hate crimes inflict on the victim, the targeted social group, and the larger community. They also argued that increased punishment was justified because someone who commits a crime because of bias is more culpable than a person who commits the same criminal act without a bias motivation.
Critics raised several concerns. First, they argued that penalty enhancement laws created unconstitutional ‘‘thought crimes’’ in violation of the First Amendment—that is, that the laws violated a defendant’s right to freedom of expression by punishing racist speech, mental processes, or opinions based upon the state’s disagreement with their ideological content. Critics also argued that the laws would have a ‘‘chilling effect’’ on free speech, because people would be fearful of exercising the right to attend racist talks or read racist literature because their activities might be brought into trial as evidence against them should they one day be charged with committing a hate crime. Challenges to the legitimacy and wisdom of the laws included the arguments that penalty enhancement is not warranted because bias crimes are no different from any other criminal act committed for an unpopular reason or that hate crimes are viewed as different only if one attributes some heightened sensitivity or weakness to the victims, who in most cases are members of minority social groups. Based on the latter argument, bias crime laws were sometimes characterized as stigmatizing or insulting to minority groups. Conversely, they also were viewed as insulting to other crime victims, because they were said to send the message that these individuals’ lives and well-being are not ‘‘worth’’ as much as the lives andwell-being ofminorities.Critics also contended that hate crime laws would exacerbate rather than reduce tensions between groups, because they draw attention to the perpetrator’s group-based animus.
Hate crime laws appeared vulnerable to constitutional attack following the U.S. Supreme Court’s 1992 decision, in R.A.V. v. City of St. Paul, striking down a municipal hate speech ordinance on free speech grounds. However, the following year the Court directly addressed the constitutionality of penalty enhancement legislation in Wisconsin v. Mitchell. In Mitchell, a unanimous Court upheld a Wisconsin statute that enhanced the punishment for a crime where the defendant ‘‘intentionally selected’’ the victim based on race or other protected group status. The Court distinguished the penalty enhancement statute from the ordinance it had struck down in R.A.V., noting that the ordinance had been directed at expression, while the statute in Mitchell was ‘‘aimed at conduct unprotected by the First Amendment.’’ The Court further found that the state could single out bias-motivated crimes for enhanced punishment based upon its assessment that such crimes inflict greater harm than non–bias-motivated crimes, because its desire to redress those greater harms was distinct from ‘‘mere disagreement’’ with the perpetrator’s beliefs or biases. Finally, the Court rejected the argument that the statute would chill free speech as being ‘‘too speculative.’’
Before and since Mitchell, several state courts have addressed free speech and other constitutional challenges to hate crime penalty enhancement laws. In addition to the free speech issues, defendants have argued that hate crime laws violate their right to due process of law because they are unconstitutionally vague—that is, they fail to provide fair warning of the conduct prohibited and therefore may permit arbitrary and discriminatory enforcement or inhibit individuals’ exercise of their First Amendment freedoms— or to equal protection of the law because they treat offenders differently based upon their viewpoints or victims differently based upon their social group membership. With few exceptions, these constitutional challenges have failed.
In addition to the constitutional issues, hate crime laws raise important policy questions. Chief among these has been the question of which categories of social group membership to include among the punishable biases. The categories that have inspired the greatest controversy have been gender and sexual orientation. As a result, many states do not yet include gender or sexual orientation in their penalty enhancement statutes.
In addition to the criminal laws described above, many jurisdictions have adopted a variety of other laws to address hate crime. For example, a number of state statutes create a civil action under which victims of hate crimes can sue their perpetrators for money damages or other relief. In addition, the federal Hate Crimes Statistics Act of 1990 directs the U.S. Department of Justice to collect and report data on hate crimes every year, and many states have enacted similar laws.
References and Further Reading
Cases and Statutes Cited
See also Campus Hate Speech Codes; Content-Based Regulation of Speech; Freedom of Speech: Modern Period (1917–Present); Overbreadth Doctrine; Shepard, Matthew; Virginia v. Black, 123 S.Ct. 1536 (2003)