Hate Crimes: Criminal Law and Identity Politics / Edition 1

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Overview

This book places the evolution of the hate crime concept in socio-legal perspective. James B. Jacobs and Kimberly Potter adopt a skeptical if not critical stance, maintaining that legal definitions of hate crime are riddled with ambiguity and subjectivity. No matter how hate crime is defined, and despite an apparent media consensus to the contrary, the authors find no evidence to support the claim that the United States is experiencing a hate crime epidemic - instead, they cast doubt on whether the number of hate crimes is even increasing. The authors further assert that, while the federal effort to establish a reliable hate crime accounting system has failed, data collected for this purpose have led to widespread misinterpretation of the state of intergroup relations in this country.
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Editorial Reviews

New York Times Book Review
This slim, well-written volume does the legal heavy lifting of many books five times its size. . . an essential guide to the origin, politics, and enforcement of hate crime laws.
Jim Sleeper
Activists, pundits, and legislators who champion "hate crime" laws will be hard-put to answer this stunning, caring book. Jacobs and Potter show how such laws may advance their sponsors' political status and moral self-importance yet diminish tolerance and justice. This definitive analysis will change the debate -- and, let us hope, a sorry miscarriage of the law.
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Product Details

  • ISBN-13: 9780195114485
  • Publisher: Oxford University Press, USA
  • Publication date: 5/28/1998
  • Series: Studies in Crime and Public Policy Series
  • Edition number: 1
  • Pages: 224
  • Product dimensions: 6.30 (w) x 5.20 (h) x 1.20 (d)

Meet the Author

James B. Jacobs, Director of New York University's Center for Research in Crime and Justice, is Professor of Law at the NYU School of Law. Kimberly Potter, formerly a Senior Research Fellow at NYU's Center for Research in Crime and Justice, is now in private law practice in Bronxville, NY.

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Table of Contents

1 Introduction 3
2 What Is Hate Crime? 11
3 Hate Crime Laws 29
4 Social Construction of a Hate Crime Epidemic 45
5 The Politics of Hate Crime Laws 65
6 Justification for Hate Crime Laws 79
7 Enforcing Hate Crime Laws 92
8 Hate Speech, Hate Crime, and the Constitution 111
9 Identity Politics and Hate Crimes 130
10 Policy Recommendations 145
Notes 155
Bibliography 187
Table of Cases 199
Index 201
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First Chapter

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 or what to do about it until we are clear about what a hate crime is. This chapter shows that the concept of hate crime is loaded with ambiguity because 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 and the perpetrator's criminal conduct.

Complexity of Prejudice

"Hate" crime is not really about hate, but about bias or prejudice. As we will see in chapter 3, statutory definitions of hate crime differ somewhat from state to state, but essentially hate crime refers to criminal conduct motivated by prejudice. Prejudice, however, is a complicated, broad, and cloudy concept. We all have prejudices for and against individuals, groups, foods, countries, weather, and so forth. Sometimes these prejudices are rooted in experience, sometimes in fantasy and irrationality, and sometimes they are passed down to us by family, friends, school, religion, and culture. Some prejudices (e.g. anti-Fascist) are considered good, some (e.g., preference for tall people over short people) relatively innocuous; but other prejudices provoke strong social and political censure (e.g., racism, anti-Semitism, misogyny). Even in this latter group, as we shall see, there is a great deal of confusion about what constitutes an acceptable opinion or preference (e.g., "I prefer to attend a historically black college," or "I oppose Zionism and a Jewish state," or "I don't like men as much as women") and what constitutes unacceptable, abhorrent prejudice.

    Though sociologists and social psychologists have long wrestled with the concept of prejudice, they have been unable to agree on a single definition. 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 innate human 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." Abraham Kaplan, a professor of philosophy, offers the following illustration: A young child returning from his first day of school is asked, "Are there any colored children in your class?" to which the child replies, "No, just black and white." Without instruction, the child has no concept of the prejudice that gives meaning to the disparaging term "colored." (But one might wonder 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 Harvard psychologist, Professor Gordon Allport, distinguished between hate-prejudice and love-prejudice. With hate-prejudice, the hater "desires the extinction 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 prejudices that 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" results in prejudice. It consists in "feeling about anyone [or anything] through love more than is right." As an example, Professor Allport presents the case of a Southern 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 in allowing her to defend her position, privileges, and way of life. Although her opinion would be labeled racist by most people, she did not view herself as a racist because she did not hate blacks or northerners, but loved the way her life used to be.

    Often groups and individuals reject the accusation that they are prejudiced or argue that their prejudices are justified because they amount to factually correct observations. For example, some white "separatists" and even white supremacists characterize themselves not as anti-black, but as pro-white. (One segment of the Afrikaner population in South Africa advocates a homeland for Afrikaners to preserve Afrikaner language and culture and insists that this is not an expression of racism toward blacks.) A white person who is persuaded by the evidence presented in Charles Murray's and Richard Herenstein's controversial book, The Bell Curve, that the mean IQ of blacks is lower than the mean IQ of whites might object to being labeled a racist. Likewise, some blacks in the United States insist that Afro-centrism is not (or, at least, is not necessarily) an expression of anti-white: prejudice. Resolving these claims, especially with respect to particular groups and situations, is no easy matter.

    The apparent case with which individuals develop prejudice has no single explanation. Professor Allport noted that "[t]he easiest idea to sell anyone is that he is better than someone else." Accordingly, most prejudices have some "functional significance" for the individual--they make the individual feel secure, provide a source of self-esteem, or explain social or economic problems (i.e., scapegoating). For some individuals, prejudice may simply be "a matter of blind conformity with prevailing folkways." In other words, a person may grow up assuming that members of another group are mean, stingy, dirty, weak, stupid, or inferior, because that is what she has always been told. Hatred may not be involved at all; indeed, some individuals holding such views may view themselves as well-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, if conscious, in their willingness to admit to their prejudices. While only a small minority of individuals espouse their prejudices as ideologies, most deny that they hold any prejudices, sometimes in good faith and sometimes because they are ashamed of them.

    As overt racism has become increasingly unacceptable over the past several 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 prejudiced and what constitutes discrimination. For example, a 1993 Gallup Poll revealed starkly different attitudes between blacks and whites regarding civil rights and the amount of discrimination faced by minorities. One question asked: "[o]n average, blacks have worse jobs, income, and housing than white people. Do you think this is mostly due to discrimination against blacks, or is it mostly due to something else?" Of the black respondents, 44 percent attributed the situation to discrimination, whereas only 21 percent of white respondents chose discrimination 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 harbor unconscious feelings of prejudice and racism, Adam Jukes, counselor at the 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." Jukes insists that men harbor (at the very least) unconscious prejudice against 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 should be counted as prejudiced is sometimes debatable. For example, is a cab driver who fears picking up young black males in New York City prejudiced, when young black males commit the majority of taxi robberies? Some people argue that supporters of caps on welfare benefits and those who question the wisdom of affirmative action are racists. Sometimes an individual need not say or do anything to warrant being labeled "prejudiced." For example, a women's studies professor at Brandeis University, Becky Thompson, explained that her teaching methods begin with the premise that "it is not open to debate whether a white student is racist or a male student is sexist. He/she simply is." The word "prejudice" is often used so loosely that it can characterize the values, beliefs, and attitudes of most Americans.

    Consider this example. The National Conference (formerly the National Conference of Christians and Jews) found that 55 percent of a survey's respondents believe that Catholics "want to impose their own ideas of morality on the larger society." The National Conference concluded that this was proof of widespread anti-Catholic prejudice. A critic might object that the survey respondents were giving an accurate response based upon their perception that Catholics, or at least the Catholic Church, had strong feelings and positions on matters on the social agenda like abortion, homosexuality, government aid to parochial schools, and assisted suicide.

    If practically everyone holds some prejudiced values, beliefs, and attitudes, every crime by a member of one group against a member of another group might be a hate crime; at least it ought to be investigated as such. Moreover, since criminals, as a group, are surely less tolerant and respectful of others than noncriminals, they are disproportionately likely to be motivated by prejudice. Indeed, in one 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, perceived wealth, perceived attitude, and so forth.

Which Prejudices Transform Crime Into Hate Crime?

Criminals probably have many conscious and unconscious prejudices, for example, against people who are (or appear to be) rich, poor, successful, unsuccessful, drunks, drug addicts, and so forth. These prejudices are not politically salient in contemporary American society, and would not, even if they are motivating factors, transform ordinary crime into hate crime. By contrast, racial, religious, and gender prejudice are widely and vigorously condemned. These prejudices are officially denounced in our laws and political discourse. Hate crime laws constitute a "next generation" effort. They condemn these traditionally and officially designated prejudices when they are held by and acted upon by criminals. By "officially designated prejudices," we mean to highlight that not all abhorrent prejudices are chosen by the federal and state legislatures for official censure. The legislatures choose which prejudices they want to officially condemn. In some states, sexual orientation bias is included in the hate crime laws, in other states it is not. The same goes for gender bias, bias based upon mental or physical disability, and bias based on age.

    The civil rights paradigm that has condemned and outlawed certain prejudices in employment and housing does not apply easily to the world of crime. The first problem is that some of the groups that are the classic targets of prejudice serve as active perpetrators of prejudice-motivated crime. It is true that anti-discrimination laws protect white job applicants from being discriminated against by black employers, but that scenario rarely arises and, for that reason, does not have to be dealt with in considering the desirability of anti-discrimination legislation. Many commentators continue to portray the United States as a nation of two races, a dominant and oppressive white race and a subjugated and victimized black race. That picture, while a caricature, is more accurate in the context of employment and housing than with respect to crime. The majority of crimes are intraracial (i.e., the perpetrator and victim are members of the same racial group). Eighty percent of violent crimes involve an offender and victim of the same race. Ninety-two percent of black murder victims and 66.6 percent of white murder victims are killed by murderers of the same race. For the 20 percent of violent crimes that are interracial, 15 percent involve black offenders and white victims; 2 percent involve white offenders and black victims; and 3 percent involve other combinations. Robbery is the crime with the highest interracial percentage; 37 percent involve victims and offenders of different races: 31 percent involve black offenders and white victims, 4 percent involve other-race offenders and white victims, and just 2 percent involve white offenders and nonwhite victims.

    The number of black offender/white victim crimes has made some strong proponents of hate crime laws uncomfortable. Some argue that black offenders who attack white victims are motivated by economics not prejudice. A few have proposed removing crimes based upon anti-white prejudice from the definition of hate crime. After the shootings (black perpetrator, white victims) and arson at Freddy's clothing store in Harlem in 1995, which resulted in the death of eight people, a number of politicians argued that the crime should not be seen as a racial incident, but rather as a business dispute over a lease between the owner of Freddy's, who was Jewish and the owner of the adjacent store, who was black. The crime was committed by a black man, who previously had participated in demonstrations outside Freddy's that involved racial insults against customers, and threats against the owner and employees.

    Jill Tregor, executive director of San Francisco's Intergroup Clearinghouse, which provides legal services and counseling to hate crime victims, claims that white crime victims are using hate crime laws to enhance penalties against minorities, who already experience prejudice within the criminal justice system. One law review author proposes that in cases of interracial assault by a white offender, prejudice should be presumed, and the burden placed on the defendant to prove the absence of a prejudiced motivation. No such presumption would apply in interracial attacks by black perpetrators.

In theory, it would be possible to exclude from the definition of hate crime those crimes motivated by minority group members' prejudice against whites on the ground that such prejudices are more justified or understandable, and the crimes less culpable, or less destructive to the body politic than crimes by whites against minorities. But such an argument would be difficult to construct, and might well violate the Fourteenth Amendment's Equal Protection Clause.

    Just as it makes no sense to presume the prejudice of white offenders against black victims, it makes little sense to argue that black offenders cannot ever be prejudiced against their white victims. Black prejudice and even hatred of whites, and especially Jews, is well documented. When the Reverend Louis Farrakhan, Nation of Islam leader, mentioned Colin Ferguson, the Long Island Railroad mass murderer, at a rally in New York City, the audience cheered. In a speech before an audience of 2,000 at Howard University, Nation of Islam spokesman Khalid Muhammad drew loud applause when he stated, "I love Colin Ferguson, who killed all those white folks on the Long Island train." Louis Farrakhan is probably the best-known avowedly racist and anti-Semitic black leader, but examples of such prejudice are common in the black press and radio, at least in the New York City area. On April 19, 1989, a white female jogger was beaten and gang-raped by a gang of black youths. After months of rehabilitation, she still suffered from vision, balance, and olfactory problems. Attorney Alton Maddox, Jr., during a program on black radio station WLIB, claimed that the gang rape of the "Central Park jogger" was a racist hoax and questioned 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 and labeled the prosecution a racist conspiracy.

    A second problem in importing the basic civil rights paradigm from the employment and housing contexts to the crime context is the sheer pervasiveness of prejudice, of one type or another, that plays a role of some kind in a large percentage of crimes. Because of that pervasiveness it will be difficult to prevent the category of hate crime, if defined broadly, from expanding to be coextensive with the entire criminal law.

    Our basic civil rights paradigm does not deal extensively with prejudice among European ethnic groups. However, such prejudices are a salient feature of American history and still are apparent in some criminality. Should the criminal law and the criminal justice apparatus 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 we scour every crime for evidence. The contemporary multicultural discourse refers to "Hispanics," "Asians," and "Africans" as if they were single homogeneous groups without divisive ethnicities. Only a moment's reflection is needed to dispel that misconception. These classifications disguise enormous differences, historic animosities, and prejudices.

    Asian-American is perhaps the most distortive term. Asia, the world's largest continent, includes nationality, ethnic, tribal, and religious groups whose prejudices against one another are every bit as palpable as European ethnic prejudices. Consider the animosities between Sunni Muslims and Shiite Muslims and between Muslims and Hindus, between Muslims and Sikhs, and between Pakistanis and Indians. Consider the animosities and hatreds between Chinese and Tibetans, between Japanese and Chinese, and between Koreans and Japanese . There are intense, centuries-old hatreds held in Vietnam by minority ethnic groups against the majority and in Cambodia by the Khem against the Vietnamese minority. Therefore, if hate crime is to become a basic category for defining crime, it will be necessary to get beyond thinking of "Asians" as a homogeneous group among whose members only nonhate crimes exist. Once we begin hunting down prejudices in criminals' motivations, we will find them in abundance.

    In the last decade, there has been an increasing amount of attention to the nationality and ethnic differences masked by the blanket term "Hispanic." But anyone familiar with Latin America and the Caribbean Islands knows that there are great differences among the peoples and cultures of this area. Just as European nationality groups have their own cultures, foods, myths, and histories, so too do Argentineans, Colombians, Cubans, Mexicans, Nicaraguans, Puerto Ricans, and so forth. There is no reason to exclude prejudices among and between these peoples from the hate crime concept.

    Sub-Sahara Africa is plagued by ethnic and tribal hatreds. Only recently, the world has been appalled by massacres of the Tutsis and Hutus in Rwanda, the Ibo and Hausa in Nigeria, and the Zulu and Xhosa in South Africa. If members of these groups immigrate to the United States and commit crimes against one another, we will have yet another potential species of hate crime. Even the category "African American" disguises ethnic or national prejudices, for example, between American blacks and blacks of Caribbean descent. Intrablack prejudice also extends to what is called, "colorism," or prejudice based on the darkness or lightness of skin color. Are all of these ethnic or color prejudices the proper subject of hate crime laws? If not, what principle enables us to impose extra punishments for offenders who act out only certain prejudices, but not others?

    The women's movement emerged as a political force later than the black civil rights movement, but today it is equally well entrenched. Sexism is widely seen as racism's counterpart, and denunciations of racism and sexism are frequently uttered in the same breath. Thus, as a matter of first impression, it would be natural to include gender prejudice under the hate crime umbrella, especially in light of the extent to which women as a group are victimized by men. Indeed, crimes against women would seem to be the most obvious candidate for recognition as hate crime. For women, crime is overwhelmingly an intergroup phenomenon. In 1994, women reported approximately 500,000 rapes and sexual assaults, almost 500,000 robberies and 3.8 million assaults. The perpetrator was male in the vast majority of these offenses.

    There is every reason to believe that a high percentage of male violence against women is motivated, at least in part, by anti-female prejudice, especially if prejudice is broadly defined. Practically every act of male violence and intimidation against women is a potential hate crime. Should all crimes by men against women be counted twice, first as generic crimes (murder, assault, rape) and second as hate crimes? And should every crime by a male against a female receive a harsher penalty than the same crime when committed by a male against a male? Surprisingly, as we shall see in chapter 5, there has been strong political resistance to treating crimes by men against women as hate crimes.

    Discrimination and prejudice based on sexual orientation is the most recent addition to the civil rights movement, but it has not yet been fully accepted as an equal. During the last two decades, gay men and lesbians have demanded the same protection against discrimination as blacks, Jews, women, and other groups; they have demanded recognition as a victimized minority. Although some states and municipalities have enacted laws prohibiting discrimination against homosexuals, many states and the federal government do not have any laws extending civil rights protection to homosexuals. The Supreme Court has held that states can make it a crime for adult homosexuals to engage in voluntary sexual relations. The president of the United States has ordered that military personnel who are open about their homosexuality be dismissed from the armed forces for that reason alone.

    So how should criminal law react to the ambivalence of American political institutions? How should the criminal law regard crime by prejudiced heterosexuals against homosexuals? If that is a hate crime, then is it also a hate crime whenever one person attacks another because he or she dislikes (hates) that person's sexual practices?

    Considering all the different contexts where discrimination against gays and lesbians occurs, none is more compelling than the criminal context, with its bloody legacy of "gay bashing." Whatever arguments might be made to deny gays and lesbians protection against discrimination in housing and employment, it is hard to imagine any coherent argument in favor of their exclusion from the hate crime umbrella. Indeed, such exclusion would rightly be perceived by gays and lesbians as a case of blatant governmental discrimination.

    There are many other prejudices toward which American society has become more sensitive in the past several decades. One prominent example is ageism--prejudice and discrimination against the elderly. Senior citizens, through their lobbying organization, the American Association of Retired Persons, have become a powerful political force, and they have achieved considerable success in having age discrimination prohibited. If crime based upon race discrimination is an especially heinous crime, then many people will no doubt conclude that crime based upon ageism ought also to be a hate crime trigger. The same kind of logic no doubt will lead advocates for the physically and mentally handicapped, undocumented aliens, HIV positive persons, and others to demand special condemnation and extra punishment for criminals who victimize them. Thus, the creation of hate crime laws and jurisprudence will inevitably generate a contentious politics about which prejudices count and which do not. Creating a hate crime jurisprudence forces us to proclaim which prejudices are worse than others, itself an exercise in prejudice. This controversy will really have little to do with appropriate sentencing for criminals and everything to do with the comparative symbolic status of various groups.

The Causal Link

For criminal conduct to constitute a hate crime, it must be motivated by prejudice and there must be a causal relationship between the criminal conduct and the officially designated prejudice. Must the criminal conduct have been totally, primarily, substantially, or just slightly caused by prejudiced motivation? If the criminal conduct must be motivated by prejudice to the exclusion of all other motivating factors, there will not be much hate crime. Contrariwise, if the hate crime designation is satisfied by a showing of merely a slight relationship between prejudice and criminal conduct, a great deal of crime by members of one group against members of another group will be labeled as hate crime.

Which Crimes, When Motivated by Prejudice, Constitute Hate Crimes?

Vandalism or criminal mischief involving the defacement of public and private property presents another complicated problem. A great deal of graffiti, in public and private, expresses disparaging opinions of women, gays and lesbians, Jews, blacks, and other minorities, whites, and other social categories. Should the act of scrawling such graffiti be included in the hate crime accounting system and trigger special condemnation and extra punishment? For example, should anti-homosexual graffiti scrawled on a bathroom wall be counted as a hate crime, or should it only count as hate crime if the graffiti is directed at an individual, institution, or place identified with a particular group (e.g., anti-homosexual graffiti on a gay man's home, anti-homosexual vandalism 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 in the context of ad hoc arguments and fights on playgrounds, streets, and in the workplace? Consider the following incident involving two neighbors, a white woman and a Hispanic woman, which was reported to the New York City Bias Incident Investigating Unit. According to the Hispanic woman, her white neighbor insulted her and harassed her with anti-Hispanic epithets. After investigating, the police declined to label the incident a "bias crime" because the neighbors had been engaged in an on-going dispute over building code violations and the epithets had been uttered during a heated argument on this same subject. In Queens, New York, the following incident was treated as a bias crime. A gay male couple knocked on their neighbors door and asked him to turn down the music, which was so loud it shook the walls. The neighbor refused and hurled anti-gay epithets. Is this a hate crime?

    Some instances like this do not qualify as crimes at all because they do not pass the threshold that separates offensive speech from criminal conduct. But other instances could be classified as criminal harassment or intimidation. Does hate crime include or exclude mixed speech/ conduct?

The Many Faces of Hate Crime

Hate crime is a potentially expansive concept that covers a great range of offenders and situations. We can see this more clearly with the aid of Table 1. On the horizontal aids we classify the offender's prejudice (high/ low) and on the vertical axis the strength of the causal relationship between the officially designated prejudice and the criminal conduct (high/ low). The table shows that a broad definition of hate crime includes many run-of-the-mill crimes that took far different from the Ideologically driven acts of extreme violence that often color thinking about this subject.

High Prejudice/High Causation

When we think about clear-cut, unambiguous hate crimes, we call to mind the Ku Klux Klan's 1963 assassination of Medgar Evers or the June 1984 assassination of Colorado Jewish radio show host, Alan Berg, by five members of Bruder Schweigen ("the Silent Brotherhood"), a neo-Nazi group. If hate crimes included only cases like these, the concept would not be ambiguous, difficult to understand, or controversial. But it would also not cover many cases and would have little, if any, impact on case outcome, because such crimes are already punished with the 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 whose prejudices are emotionally intense, but who are not part of any organized group. Consider Colin Ferguson, the black man who murdered six white commuters and wounded 19 others on the Long Island Railroad in December 1993. After the shooting, police found a note in his pocket explaining that he chose Long Island as the venue because it was predominantly white. In the note Ferguson expressed hatred for Asians, whites, and "Uncle Tom Negroes." Some commentators said Ferguson's murders were not hate crimes because he was mentally ill or because he was prejudiced against "Uncle Tom Negroes" as well as whites and Asians. According to Bob Purvis, legal director of the University of Maryland's Center for the Applied Study of Ethnoviolence, the Ferguson rampage was not a hate crime: "By its nature, a mass murder is a crime born of immense psychiatric disturbance.... Mass murder is mass murder; it's not a hate crime." This argument, in effect, says that bona fide prejudice is irrational but not so irrational as to lead to crimes of grand scale. Such reasoning might lead to the bizarre conclusion that Hitler was not prejudiced and the Holocaust not the ultimate hate crime. In short, we are quite prepared to accept that prejudice often includes extreme irrationality and even mental instability.

    Here are some other cases that we think fall easily into cell I of the 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 of his mental instability or because they believe misogyny should not be a hate crime trigger. It seems to us that psychosis or mental pathology cannot negate prejudice without stripping the concept of some of its meaning. Moreover, it is very difficult to imagine an intellectually coherent hate crime category that would include crimes motivated by racism but not crimes motivated by sexism/misogyny.

High Prejudice/Low Causation

In cell II, we find crimes committed by extremely prejudiced offenders whose crimes are not solely or strongly motivated by prejudice. Generally, these crimes, including the following examples, are not classified as hate crimes. However, we include this category to present a more complete picture of the configurations that prejudice, crime, and causation can take. It should not be presumed that every law violation committed by highly prejudiced individuals is a hate crime and it is not sound to use the hate crime laws to persecute persecutors. Suppose that the neo-Nazi leader, Tom Metzger, was to shoplift merchandise from a store owned by Jews? He might contest the hate crime designation by saying that although he abhors Jews, his primary motivation was to acquire some goods for free and that had a Jewish store not been available he would have stolen the merchandise from a non-Jewish store. The fact that 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 wave of American hate crime laws. The offenders in this category are not ideologues or obsessive haters; some may be professional or at least active criminals with short fuses and confined psyches; some may be hostile and alienated juvenile delinquents; others may be ignorant, but relatively law-abiding Archie Bunker types. The prejudices of such individuals are to some extent unconscious. Whether or not the authors of hate crime legislation meant to cover these offenders, these are the individuals who dominate the statistics. The following cases are good 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 result from ad hoc disputes and flashing tempers. Sometimes these incidents are 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 neither familiar nor self-defining. Coined in the late 1980s to emphasize criminal conduct motivated by prejudice, it focuses on the psyche of the criminal rather than on the criminal's conduct. It attempts to extend the civil rights paradigm into the world of crime and criminal law.

    How much hate crime there is and what the appropriate response should be depends upon how hate crime is conceptualized and defined. In constructing a definition of hate crime, choices must be made regarding the meaning of prejudice and the nature of the causal link between 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 be very little hate crime. If prejudice is defined broadly, a high percentage of intergroup crimes will qualify as hate crimes. If only a select few crimes, such as assault or harassment, can be transformed into hate crimes, the number of hate crimes will be small. If vandalism and graffiti, when motivated by prejudice, count as hate crimes, the number of hate crimes will be enormous. If criminal conduct must be completely or predominantly caused by prejudice in order to be termed hate crime, there will be few hate crimes. If prejudice need only in part to have motivated the crime, hate crime will be plentiful. In other words, we can make the hate crime problem as small or large as we desire by manipulating the definition.

    There are many different types of prejudices that might qualify for hate crime designation. Some civil rights and affirmative action legislation speaks in terms of "protected groups," but this does not easily apply in the hate crime context because when it comes to crime, all victims are a protected group. Why should some victims be considered more protected than others?

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