Hate Crimes

Hate crimes are crimes in which the perpetuator is motivated by prejudice toward the victim and/or toward the group to which the defendant belongs. Typically, hate crimes punish conduct in which race, ethnicity, gender, religion, and often sexual orientation are motives for the prohibited conduct. Efforts to prosecute hate crimes began in earnest in the 1980s, and have been coupled with federal and state legislation requiring the compilation of hate crime data. Some point to an ‘‘epidemic’’ of hate crime over the last two decades. Those who disagree note that there are enormous differences in what constitutes hate crimes in different jurisdictions, and that more generally ‘‘hate crime’’ data are easily manipulated, difficult to collect, and subject to different interpretations. Also, in assessing hate crime data, distinctions need to be drawn between minor crimes motivated by hate (for instance, graffiti), and major crimes with a hate component (for example, a murder of a black man because of his race).

It is important to distinguish between ‘‘hate crimes’’ and ‘‘hate speech.’’ The latter clearly implicates the First Amendment’s free speech protections, and most efforts to proscribe ‘‘hate speech’’—for instance, in college speech codes—have been struck down by the courts. The fairly consistent view of these courts has been that words—no matter how heinous, how hateful—are protected speech, and cannot be criminalized. In contrast, ‘‘hate crimes,’’ the courts have stressed, deal with conduct. This conduct unarguably can be prohibited by the states or federal government, whether it is part of a hate crime or not. The ‘‘hate’’ designation is applied when, as suggested above, the defendant is motivated by prejudice with respect to the victim’s race, ethnicity, gender, and so on. The Court, while striking down laws that exclusively punish hate speech, has upheld Sentencing enhancements against defendants for hateful motivations. In short, standing alone, punishment of words or ideas no matter how prejudiced are not proscribable; it is only when coupled with conduct that a ‘‘hateful motivation’’ can result in an enhanced sentence. The major exception to this rule involves the expression of a hateful idea by burning a cross. In 2003, the Court ruled that this kind of expression— unlike other kinds of ways to convey a message of hate—can be criminally punished. The long history of cross burning in the United States was considered so substantial a form of intimidation that states could prohibit cross burning even if not specifically linked to another underlying crime.

Hate crime appellations are introduced for two main reasons. First and foremost is the matter of symbolic politics. A jurisdiction intends to send a message about not countenancing certain kinds of hateful behavior, and wants to send this message by harsher penalties for behavior associated with hateful motivations. Second, proponents of hate crime statutes (and often of special units within police departments whose task it is to collect data on, and prosecute hate crimes) argue that by calling matters hate crimes these automatically receive higher priority treatment by the police. In serious crimes in which ‘‘hate’’ is also charged, this ironically is less important since the defendant can/will be subject to a substantial sentence for the underlying felony; however, in less serious felonies and misdemeanors (including, for example, incidents of graffiti or malicious destruction of property), calling these relatively minor matters hate crimes makes it more likely the perpetrator will receive a tougher sentence.

MILTON HEUMANN

References and Further Reading

• Bell, Jeannine, Deciding When Hate Is a Crime: The First Amendment, Police Detectives, and the Identification of Hate Crime, Rutgers Race & Law Review 4 (2002): 1:33–76.
• Gould, Jon. Speak No Evil. Chicago: University of Chicago Press, 2005.
• Heumann, Milton, and Thomas Church, eds. Hate Speech on Campus. Boston: Northeastern University Press, 1997.
• Jacobs, James, and Kimberly Potter. Hate Crimes: Criminal Law and Identity Politics. New York: Oxford University Press, 1998.
• Lawrence, Frederick. Punishing Hate. Cambridge, MA: Harvard University Press, 1999.
• R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).
• Virginia v. Black, 538 U.S. 123 (2003).
• Wisconsin v. Mitchell, 508 U.S. 476 (1993).

See also Beauharnais v. Illinois, 343 U.S. 250 (1952); Campus Hate Speech Codes; Cross-Burning