Hate crimes hurt some more than others: implications for the just sentencing of offenders.

Teaching and Learning Guide for: Isn’t Every Crime a Hate Crime? The Case for Hate Crime Laws

Supporters of hate crime legislation suggest that the primary reason for the codification of hate crime laws is “to send a strong message of tolerance and equality, signaling to all members of society that hatred and prejudice on the basis of identity will be punished with extra severity.” However, hate crime laws may actually be accomplishing the opposite effect of tolerance and equality because they encourage U.S. citizens to view themselves, not as members of our society, but as members of a protected group. The enactment of hate crime legislation at the federal and state levels has led to unintended consequences and unfair practices. Today, the controversy regarding the effectiveness of hate crime laws is debated, and people question whether this type of legislation is beneficial to society. This article will candidly reevaluate hate crime legislation. Part II will provide the definition of the term “hate crime” and the theoretical justification for enhanced sentencing involving discrimination-based conduct. Focus will be placed on data that disproves the theory that hate crime laws reduce or deter future hate crimes. It will also explain the underlying reasons for the enactment of hate crime laws, such as the media’s role and political influences, and it will present several of the misconceptions associated with hate crime legislation. Part III will present the unintended consequences associated with the enactment of hate crime statutes, including constitutional violations. It will also explain why hate crimes are rarely prosecuted, and will focus on the inconsistency, redundancy, and arbitrary usage/application of hate crime legislation. Part III will also present an individual’s response to the negative, unintended effects of hate crime legislation. Part IV will determine that hate crime legislation is not cost-effective. Part V sets forth a recommendation on improving community efforts to educate or reeducate citizens on respecting diversity. Finally, the article analyzes hate crime laws from supporting and opposing viewpoints and concludes that there is no need to separate hate crimes from other types of crimes as a means to promote a more tolerant, equal, and stable society.

In light of the Christchurch terror attack, a review of New Zealand’s hate crime laws is needed. This paper considers one potential reform option - the adoption of a separate hate crime offence. Firstly, I reconsider the question of whether hate crimes are the type of conduct that should be additionally criminalised. Additional criminalisation of hate crimes is necessary for a number of reasons. Hate crimes are a violation of the victim’s human rights and cause additional harm, to the victim and wider society. The increased moral reprehensibility of hate crimes makes deterring these crimes particularly important. I then critique the sentence enhancement approach, arguing that New Zealand’s current hate crime provision is inadequate. There is uncertainty in the weight that should be attributed to hate crime, the balancing exercise undertaken in sentencing gives insufficient recognition to the hate crime element and sentencing fails to deter hate crime offending. I also consider some issues with a separate hate crime offence: the limited nature of the provisions and the potential difficulties in prosecuting. I then consider the fair labelling principle. A separate offence is important for fair labelling of hate crime. The offence would more accurately communicate the nature of the wrongdoing to the offender, the public and other criminal justice agencies. It would also give more recognition to the victim. There are a number of issues that would need to be addressed if a separate offence were enacted. In particular, which underlying offences should be covered by the separate offence, which characteristics or grounds of hostility should be protected and the requisite motive or causation that should be required. This paper considers how these issues might be addressed. I conclude that New Zealand’s current approach to hate crimes is inadequate and change is needed. More consideration of the exact scope of any changes is required, particularly to determine whether to adopt a separate hate crime offence or a hybrid system.

Hate crimes have been found to have more severe consequences than other parallel crimes that were not motivated by the offenders' hostility toward someone because of their real or perceived difference. Many countries today have hate crime laws that make it possible to increase the penalties for such crimes. The main critique against hate crime laws is that they punish thoughts. Instead, proponents of hate crime laws argue that sentence enhancement is justified because hate crimes cause greater harm. This study compares consequences of victimization across groups of victims to test for whom hate crimes hurt more. We analyzed data that were collected through questionnaires distributed to almost 3,000 students at Malmö University, Sweden, during 2013. The survey focused on students' exposure to, and experiences of, hate crime. A series of separate logistic regression analyses were performed, which analyzed the likelihood for reporting consequences following a crime depending on crime type, perceived motive, repeat victimization, gender, and age. Analyzed as one victim group, victims of hate crime more often reported any of the consequences following a crime compared with victims of parallel non-hate-motivated crimes. And, overall victims of threat more often reported consequences compared with victims of sexual harassment and minor assault. However, all hate crime victim groups did not report more consequences than the non-hate crime victim group. The results provide grounds for questioning that hate crimes hurt the individual victim more. It seems that hate crimes do not hurt all more but hate crimes hurt some victims of some crimes more in some ways.

Hate crime policy has developed from the early legislation of the 1968 Civil Rights Act to the 2009 Matthew Shepard and James Byrd Jr. Hate Crime Prevention Act, to be increasingly inclusive in terms of identity and comprehensive in terms of ramifications. Hence a body of scholarship around the trajectory and implications of hate crime laws has developed, as has a robust discourse on the definitions of hate crime itself and theories on who perpetrates bias-motivated violence and why it occurs. Between definitions of hate crime, a tension exists between legal definitions and those of theorists who are attempting incorporate understanding of context into the definition. Similarly, the theories on who perpetrates hate crimes and why they occur exhibit tensions between strain-based theories. While some scholars have deployed Merton’s (1938) strain theory associated with societal anomie, others point to changing norms. As hate crime laws have become more inclusive of sexual orientation and gender identity/expression, avenues of research into the disparities in experience of bias-motivated crimes between enumerated categories has increased. Persistent in the research on hate crime is the deficiency of data on victimization and ramifications beyond direct victims. While data on the scope of the policies is clear, inconsistencies in data collection around victimization render available resources insufficient. Most recently, research on hate crime policy has intersected with queer theory to question whether hate crime laws are positive for the LGBTQ community or society at large. Organizations such as the Silvia Rivera Law Project, for example, have pushed back on calls for inclusive hate crime laws via challenging the propensity to provide additional resources to the prison-industrial complex. Furthermore, queer scholars of history find a disconnect between the origins of the LGBTI movement in resisting police powers to be antithetical to promoting increased police powers in the form of hate crime legislation.

The impression often conveyed by the media about hate crime offenders is that they are hate-fuelled individuals who, in acting out their extremely bigoted views, target their victims in premeditated violent attacks. Scholarly research on the perpetrators of hate crimes has begun to provide a more nuanced picture. However, the preoccupation of researchers with convicted offenders neglects the vast majority of hate crime offenders that do not come into contact with the criminal justice system. This book widens understanding of hate crime by demonstrating that many offenders are ordinary people who offend in the context of their everyday lives. The book takes a victim-centred approach to explore and analyse hate crime as a social problem, providing an empirically informed and scholarly perspective. The book draws out the connections between the individual agency of offenders and the background structural context for their actions. It adds a new dimension to the debate about criminalising hate in light of concerns about the rise of punitive and expressive justice, scrutinising the balance struck by hate crime laws between the rights of offenders and the rights of victims.

violation of the equality ideal. At most, this latter conception of bias crime statutes can assert that crimes based on the protected characteristics threaten the equality ideal because these characteristics have generally been the basis of past discrimination—but they cannot locate either the harm risked by the perpetrator or his individual culpability more precisely. 2. The Potential Underinclusiveness Problem This proposed solution to the overinclusiveness problem of bias crimes does not address the potential underinclusiveness question. Why, for example, are the elderly and the disabled typically not included within bias crime statutes? Formulating the list of protected characteristics that should be included within bias crimes statutes is a complex question without a single solution whose full elaboration is beyond the scope of this article. A few points, however, follow naturally from the above analysis. Clearly, political factors influence the calculation of the proper scope of bias crime laws, as debates over the inclusion of gender and sexual orientation as protected characteristics demonstrate. In response to political pressure, the scope of bias crimes has been rapidly increasing. This phenomenon threatens to seriously weaken bias crime laws. Legislative judgment about which characteristics are likely to make their bearers targets of violent discrimination helps sharpen the focus of bias crimes, feeding more clearly into the historical experience that justifies the penalty enhancement associated with these crimes. Having too many groups including within 149. See, e.g., Julie Goldscheid, Gender-Motivated Violence: Developing A Meaningful Paradigm for Civil Rights Enforcement, 22 Harv. Women’s L.J. 123 (1999). 150. Martin S. Zwerling, Legislating Against Hate in New York: Bias Crimes and the Lesbian and Gay Community, 11 Touro L. Rev. 529 (1995); Anthony S. Winer, Hate Crimes, Homosexuals, and the Constitution, 29 Harv. C.R.-C.L. L. Rev. 387 (1994). 151. Historical and contemporary social contexts suggest why certain aspects of peoples’ identity provoke a strong sense of solidarity with other members of the This content downloaded from 157.55.39.177 on Tue, 15 Nov 2016 03:56:32 UTC All use subject to http://about.jstor.org/terms DANNERMACRO 5/5/2003 4:42 PM 2002] CULPABILITY IN CONTEXT 447 the definition of bias crimes risks reducing the higher stigma associated with this kind of crime. Generally rejecting the expansion of bias crime statutes, however, does not resolve the question of which groups should properly be included within their reach. Whether gender should be considered a protected characteristic, for example, demonstrates the difficulty of the inquiry about which characteristics should be included and which should be excluded. Women have historically been subjected to discrimination in many facets of their lives, including voting and employment. Whether women are still subject to widespread discrimination is less obvious. The model of bias crime presented here focuses on the perpetrator’s choice of the victim as a representative of a group of which he is a member. The victim’s group affiliation has more importance than any individual characteristics of the victim; indeed, this is what distinguishes bias crimes from general vulnerable victim statutes. Thus, some crimes typically committed against women, like acquaintance rape, fit uncomfortably within the bias crimes model. The question of whether gender group. For these reasons, vulnerability can and should be seen as especially salient along the dimensions of the protected characteristics currently articulated in existing bias crimes. Thus, I believe that Kenneth Simons’s response to Harel & Parchomovsky’s article is misguided. See Simons, supra note 21, at 241 (arguing that race, religion, and the other characteristics protected by bias crimes are less important predictors of victims’ vulnerability due to other factors, like “geography, wealth, class, and similar factors”). Vulnerability generally might be more dependent on the factors that Simon mentions, but these characteristics are less likely to constitute the basis of widespread harm to other members of the “group,” precisely because the relevant characteristics are less salient to their members. 152. Cf. William A. Schabas, Genocide in International Law 114 (2000) (arguing for a narrow definition of the crime of genocide: “for society to define a crime so heinous that it will occur only rarely is testimony to the value of such a precise formulation. Diluting the definition, either by formal amendment or its terms or by extravagant interpretation of the existing text, risks trivializing the horror of the real crime when it is committed”). 153. Perhaps the problem can be resolved through the statutory formulation of bias crimes. In a bias crime, the perpetrator must select the victim in at least substantial part because of his or her membership in a protected group. The acquaintance rapist might not primarily select his victim because she is a woman but instead because of some other characteristic. If that characteristic is not This content downloaded from 157.55.39.177 on Tue, 15 Nov 2016 03:56:32 UTC All use subject to http://about.jstor.org/terms DANNERMACRO 5/5/2003 4:42 PM 448 BUFFALO CRIMINAL LAW REVIEW [Vol. 6:389 should be included in bias crimes statutes should turn on the pervasiveness of discrimination against women, and how many of the crimes committed against women reflect perpetration because of their identity as women, rather than other factors less central to the purpose of bias crime statutes. The discussion of bias crimes in this article also provides legislators with other criteria they might use when evaluating the propriety of expanding the scope of characteristics protected by bias crimes. History is clearly an important factor. Has the characteristic historically been the basis for discrimination? Race, ethnicity, national origin, and religion easily qualify here, as would sexual orientation. Contemporary circumstances must also be considered. Prejudices that were vivid hundreds of years ago but have no contemporary currency clearly should not be included within these statutes. Legislators should also consider the particular characteristics of discrimination within their jurisdiction. Some groups, one could imagine, would be likely targets of discrimination across the United States and thus would be included in all bias crime statutes, while others might be particularly vulnerable only in particular regions. specifically included within the reach of the bias crime statute, the acquaintance rape should not be considered a bias crime. Even assuming, however, that the “because of” formula helps distinguish between crimes that fit within the bias crimes model and those that do not, this resolution does not identify which characteristics should be included within the statute generally. 154. Cf. United States v. McCall, 174 F.3d 47, 50 (2d Cir. 1998) (construing the federal vulnerable victim enhancement and stating “broad generalizations about victims based upon their membership in a class are disfavored where a very substantial portion of the class is not in fact particularly vulnerable to the crime in question. In such cases, courts have required that the enhancement be based on individualized findings as to the vulnerability of particular victims”). While individualized findings as to particular victims would not be appropriate for bias crimes statutes because of the relative importance of the group over the individual, considering the proportion of crimes committed against members of a group that are likely to be considered bias crimes might prove a useful way of determining whether or not the characteristic should be included within the bias crime statute. 155. Gays and lesbians, for example, might fit this description. See Herek, supra note 14, at 945 (noting that “sexual prejudice is still acceptable in many quarters of American society”). I imagine that African Americans, Latinos, and other minority racial groups would also likely be considered vulnerable groups This content downloaded from 157.55.39.177 on Tue, 15 Nov 2016 03:56:32 UTC All use subject to http://about.jstor.org/terms DANNERMACRO 5/5/2003 4:42 PM 2002] CULPABILITY IN CONTEXT 449 Legislators also might consider whether the characteristic is likely to make the victims subject to attack because of social discrimination against this group or because it is a proxy for some other quality, such as physical helplessness. This type of inquiry makes some characteristics, like age and disability, problematic for inclusion within the reach of bias crime statutes. While crimes against the elderly should certainly be seen as crimes targeting vulnerable victims, they should not be defined as bias crimes. Discrimination—not opportunism— is the foundation of the bias crime perpetrator’s culpability. If one believes, as I do, that the category of bias crimes should be narrow, inevitably groups that resemble those already included within the reach of bias crime statues will feel unfairly excluded. As Jacobs and Potter point out in their comprehensive critique of bias crimes, the judgment about the proper scope of these statutes is inescapably political. While the legislative crafting of bias crime statutes should be informed by clear questions and criteria, the difficulty of the inquiry is unavoidable.

This study investigated how racial prejudice influences White college students' perceptions of hate crime. We also examined the moderating effects of the race of the victim of hate crimes and the absence of hate crime laws. Our sample included 581 White students in a predominantly White university located in a state that does not have a hate crime law. The study was set up in a 2 (race of the victim and the perpetrator) × 3 (level of assault) factorial design. Participants rated their perceptions of three scenarios (i.e., non-racially biased simple assault, racially biased simple assault, and racially biased aggravated assault). The dependent variables were perceptions of hate crime and willingness to report. The key independent variable was participants' level of racial prejudice. The moderators included race of the victim in each scenario and whether participants' state of origin has a hate crime law. Results suggest that higher levels of modern racism were associated with lower perceptions of hate crime and lower willingness to report racially biased simple and aggravated hate crime. When the victim was White, participants with higher levels of racial prejudice were more likely to perceive a hate crime and more willing to report it. The opposite was true when the victim was Black. The absence of state hate crime laws and race of victim were significant moderators. Our study suggests that racial prejudice is associated with lower perceptions of hate crime and willingness to report. Furthermore, the moderating effect of the race of victims provides insights on how racial prejudice can lead to a differential perception of hate crime, depending on whether one's racial in-group is targeted. Our findings also highlight the importance of having state-level hate crime laws to mitigate the linkage between modern racism and perceptions of hate crime.

The impression often conveyed by the media about hate crime offenders is that they are hate-fuelled individuals who, in acting out their extremely bigoted views, target their victims in premeditated violent attacks. Scholarly research on the perpetrators of hate crimes has begun to provide a more nuanced picture. However, the preoccupation of researchers with convicted offenders neglects the vast majority of hate crime offenders that do not come into contact with the criminal justice system. This book widens understanding of hate crime by demonstrating that many offenders are ordinary people who offend in the context of their everyday lives. The book takes a victim-centred approach to explore and analyse hate crime as a social problem, providing an empirically informed and scholarly perspective. The book draws out the connections between the individual agency of offenders and the background structural context for their actions. It adds a new dimension to the debate about criminalising hate in light of concerns about the rise of punitive and expressive justice, scrutinising the balance struck by hate crime laws between the rights of offenders and the rights of victims.

Future developments for hate crime thinking: who, what and why?, Neil Chakraborti Part One: Developing More Nuanced Understandings of Hate Crime 1. The more things change - post 9/11 trends in hate crime scholarship, Barbara Perry 2. The victimisation of Goths and the boundaries of hate crime, Jon Garland 3. Future challenges for hate crime policy: lessons from the past, Hannah Mason-Bish 4. Homophobic hate crime in Northern Ireland, Marian Duggan 5. Verbal and textual hostility in context, Nicole Asquith 6. Hate crime offenders, Jack McDevitt, Jack Levin, Jim Nolan and Susan Bennett Part Two: Developing More Nuanced Responses to Hate Crime 7. Law enforcement and hate crime: theoretical perspectives on the complexities of policing 'hatred', Nathan Hall 8. From hate to prevent: community safety and counter-terrorism, Derek McGhee 9. Hate crime victims and hate crime reporting: some impertinent questions, Kris Christmann and Kevin Wong 10. Racial aggravation or aggravating racism: overcoming the disjunction between legal and subjective realities, David Gadd 11. Healing harms and engendering tolerance: the promise of restorative justice for hate crime, Mark Walters and Carolyn Hoyle

Crime and violence motivated by hatred and bigotry, what we now refer to as hate or bias crime, is a centuries-old problem. However, a coherent body of law that explicitly punishes this conduct only emerged in the late 20th century. The first hate crime laws were enacted in the early 1980s, and today these laws appear in the criminal codes of 45 states and in federal law. The specific features of hate crime laws differ from state to state, but there is no doubt that hate crime has been firmly institutionalized in American jurisprudence, and it represents a type of behavior that governments seek to curtail and scholars try to understand and predict.

Research on hate crime has largely been limited to official statistics collected by the Federal Bureau of Investigation and some independent scholarly research of hate crime victims. Few, however, have studied hate crime offenders. Offender narratives of hate crime participation are the focus of this study. Further, few have studied hate crimes against the Amish and their offenders. This study examines hate crime against the Amish with a particular focus on the bias motivation that generates anti-Amish hate crime. To accomplish this task, non-Amish hate crime offenders were enlisted to share their experiences and stories about anti-Amish hate crime. A total of eight subjects were interviewed; the subjects supplied over 16 hours of audiotaped narrative describing acts of "Claping" they had committed against Old Order Amish. The data were transcribed and an analysis of the interview data revealed that themes emerged from offender narratives within each element of routine activities theory. The data support that the subjects were motivated offenders, the Amish were perceived as suitable targets, and there was a perception that guardians were lacking within the community to discourage anti-Amish hate crime. However, it is important to consider the themes that emerged within each dimension of routine activities when applying the theory to anti-Amish bias crime.

Hate crime research has increased, but there are very few studies examining hate crime offenders. It is, therefore, difficult to determine to what extent those who perpetrate this offence might be different from those who have not committed hate crime. This study is the first to provide an account of the demographics and criminal histories of those serving time in prison for committing a hate crime. It is based on a large complete population of offenders in the UK. Hate crime offenders released from prison were found to have prolific criminal careers, having committed a wide range and large number of different types of offences. When compared with those who committed a general (non-hate) violent offence, violent hate crime offenders were significantly older and were considerably more prolific in their previous offending. Violent hate crime appeared quantitatively, as opposed to qualitatively, different from violent non-hate crime, but this was less clearly true when those who had committed public order hate crime were compared with other public order offenders. Interventions to reduce the later offending of violent hate crime offenders should be based on the effective interventions that exist for violent offenders, but should take into account knowledge about the surprisingly prolific criminal careers of hate crime offenders.

A growing body of evidence shows that minorities are disproportionately targeted for hate crimes. However, few studies have examined how increasing the representation of minority officers in police departments can impact hate crime rates. Drawing on cross-section and longitudinal data from sources such as Law Enforcement Management and Administration Statistics (LEMAS), the U.S. Census, and Challengers from the Sidelines, the current study examines the relationship between police diversity and hate crimes. We hypothesize that high levels of police diversity will be associated with low hate crime rates. Moreover, we argue that the relationship between police diversity and hate crimes is moderated by police departments’ geographic location (urban, rural, and suburban), hate crime laws, and high-profile hate crime cases. The findings reveal that police diversity is associated with low hate crime rates in our longitudinal analyses. Also, the police diversity-hate crime nexus is moderated by geographic location, suggesting the effect of police diversity on hate crimes was stronger in urban police districts relative to suburban and rural districts. Our findings move beyond prior studies by proposing conditions under which police diversity may be most meaningful. Thus, police diversity can help reduce hate crimes, particularly in urban districts.

When love meets hate: The relationship between state policies on gay and lesbian rights and hate crime incidence