Hate Crimes: Criminal Law and Identity Politics

by James Jacobs and Kimberly Potter

(New York: Oxford University Press 1998, 224 pages, $24.95.)

Throughout the early '90s, state legislatures across the country began to adopt new measures seeking to outlaw what are referred to as “hate crimes.” A typical hate crime statute increases the severity of punishment for a crime deemed to be motivated by prejudice against a victim's race, religion, ethnic origin, and, in some cases, sexual orientation. As of 1995, the federal government, 37 states, and the District of Columbia had all passed hate crime statutes. In addition, the federal government has established a central data bank for hate crime statistics, and the U.S. Congress mandates that every local and state law enforcement department track and prepare reports on instances of hate-and bias-motivated offenses.

Clearly, malicious and unlawful actions directed at persons because of their race, religion, ethnic origin, etc., are contemptible and should be strongly condemned by society. However there is no agreement on exactly how different types of “socially destructive” attitudes and prejudices should be handled. It is not at all clear whether passing laws that target specific beliefs or expressions of prejudice or bias serves to protect specific groups or society at large from the harm that results from hatred. A new book written by a pair of legal scholars from New York University (NYU) presents many reasons why the remedy that has been prescribed may be misguided.

James Jacobs, the director of the NYU's Center for Research in Crime and Justice, and Kimberly Potter, a former fellow at the center, express alarm at the thorny questions raised by the proliferation of hate crime statutes. Their thought-provoking examination concludes that hate statutes are an ill-conceived project, based on the promotion of what they call “identity politics.”

Rather than fostering a more tolerant society, the hate crime concept often solidifies attitudes one would hope to change, say the authors. They claim that hate statutes have “enormous potential, through the misuse of authority and power, to sow the seeds of dissension and conflict.” In addition, the book maintains that hate laws go against the grain of the Constitution: “The First Amendment is implicated when extra punishment is meted out for bigoted beliefs and motives.”

Ironically, one of the most controversial hate crime cases recounted in this work involved an additional five-year sentence meted out to an African-American teen-ager. After viewing Mississippi Burning, a film about the murder of civil rights workers in the South in the '60s, with friends at a theater in Wisconsin, Todd Mitchell became incensed and suggested to his friends that they “move on some white people.” As a young white man walked past, Mitchell shouted out, “there goes a white boy, let's get him.” The group roughed up the youth, causing him serious injuries; Mitchell himself did not take part in the beating. Mitchell was convicted and faced a maximum two-year sentence for aggravated assault. The trial judge, however, decided to charge Mitchell under the state's new hate crime statute, and sentenced him to an additional five years, making his sentence seven years in all. The Wisconsin Supreme Court reviewed the case and overturned the added penalties. In its decision, the state's high court noted, “the defendant could face a dramatically larger sentence simply for uttering the wrong word.” As the judges wrote, such a statute “creates nothing more than a thought crime,” a concept which they rejected as “Orwellian.”

In 1993, however, the ruling was reversed; the U.S. Supreme Court Justices voted 9-0 to restore the original sentence imposed on Mitchell. According to the high court, the legislature may single out such conduct for increased punishment “because bias inspired conduct is thought to inflict greater individual and societal harm and incite community unrest” — to quote the words of Chief Justice William Rehnquist.

According to the authors, hate crime statutes were the product of an intensive lobbying, media, and public relations campaign, which began in the mid-1980s and culminated in a blitz of federal and state legislation in 1992 and 1993, mostly based on a single model drafted by the Anti-Defamation League. Lobbyists, members of victimized groups, and politicians anxious to represent themselves as “opposed to discrimination and violence,” combined to rush such bills into law. The statutes work on a principle the book calls “victim status,” tending thereby to encourage a trend toward “identity politics.” Officially designated victim groups gain special entitlements at the expense of other groups or the general population. These statutes differ from laws which seek to fulfill a universal standard or entitle everyone to due process, such as the first wave of civil rights laws or, for that matter, the Bill of Rights.

The authors hold that hate laws “may not promote social harmony but, to the contrary, may reinforce social divisions and exacerbate social conflict.” Supporters of hate crime laws will likely dispute the course of action that Potter and Jacobs suggest. Asserting that bias crime law was, in juridical terms, probably ill-advised from the very beginning, the authors suggest a number of practical steps which they say could bring the problem under control.

First of all, they suggest that society simply terminate hate crime incident reporting and statistics gathering, claiming that these practices raise serious fairness questions, and have dealt with the question of people's prejudices in an ambiguous, subjective, and contentious manner. Second, they call for a much narrower definition of hate-related crimes. They would reserve the term “hate crime” for cases involving the commission of a specific felony by a known member of a terrorist or violent group, carried out for the purpose of furthering the stated goals or objectives of that group. Third, the authors would repeal the various federal, state, and local hate crime laws in their entirety. As the book bluntly states, “we think the Supreme Court was wrong” in the Mitchell case, adding that “enhancing the criminal sentence because of the offender's prejudiced motivation is essentially punishing the offender for his beliefs and opinions.” As they insist, “To punish prejudiced offenders two or three times more severely than other similarly situated offenders strains constitutional doctrine and violates the principles of proportionality.”

Hate Crimes is an important work which draws our attention to a serious issue. As a new wave of hate crime legislation comes forward in the wake of the Matthew Shepard case, this book could be a vital resource for elected officials who may want to take a critical look at attempts to reform hate crime laws.

David Peterson writes from Chicago.