The Hate Debate:
Constitutional and Policy
Problems
Chapter Three
First Amendment to the US
Constitution
„
Freedom of Religion, Press, Expression
„
Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof; or abridging the
freedom of speech, or of the press; or the
right of the people peaceably to assemble,
and to petition the Government for a redress
of grievances
Hate Crime Laws and the
Constitution
ƒ
ƒ
Some of the strongest arguments against
hate crime laws have focused on the First
Amendment’s p
protections of speech
p
and
association
The problems are related to a unique
aspect of hate crime laws
ƒ
They are the only kind of laws for which
motive is an element of the crime
1
Hate Crime Laws and the
Constitution (cont.)
ƒ
Motive vs. intent
ƒ
Most crimes contain some intent requirement or
mens rea
ƒ
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Motive refers to the reason why a person
commits a particular act
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Intent refers to the degree to which a person means to
commit a particular action or cause a particular result
Motive is virtually never made an element of crimes
Hate crimes are the exception to this rule
Hate Crime Laws and the
Constitution (cont.)
ƒ
Punishing motive leads to some
problems
ƒ
Constitutional perspective
ƒ
Can be argued that:
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Hate crimes amount to thought crimes
Hate crime laws impermissibly penalize speech
and group affiliation
Are Hate Crimes Thought
Crimes?
ƒ
A basic principle of American jurisprudence
is that thought alone, no matter how
abhorrent, cannot be punished
ƒ
If persons are treated differently for
committing identical acts because of their
motives, does this not amount to punishing
thoughts?
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ƒ
R.A.V. v. St. Paul
Some state courts have agreed
2
Discussion of Hate Crimes as
Unconstitutional – Arguments For
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Others have strongly disagreed and argue
that hate crime laws do comply with the
Constitution
ƒ
Although laws that consider motive as an element
of the crime are rare, law does consider motive in
some situations
ƒ
If motive can be considered by a judge, why can’t
the legislature not mandate that certain motivations
will increase punishment?
ƒ
Sentencing decisions
Discussion of Hate Crimes as
Unconstitutional – Arguments for (cont.)
ƒ
The other situation in which motive
matters is in civil antidiscrimination
cases (federal Title VII cases)
ƒ
Someone fired because the boss doesn’t
like them, vs. someone fired because of
their race
Discussion of Hate Crimes as
Unconstitutional – Arguments Against
ƒ
Counter-arguments
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Determining the appropriate sentence for
someone already convicted of a crime is
significantly
i ifi
tl diff
differentt ffrom convicting
i ti
someone of a crime itself
Additionally, the impact of aggravating
circumstances such as bias motives in
sentencing decisions is tempered by the
fact that the sentencer can also consider
mitigating factors
3
Discussion of Hate Crimes as
Unconstitutional – Arguments Against
(cont.)
ƒ
With regard to antidiscrimination laws,
there are important differences between
civil and criminal law
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No one will go to prison or lose citizenship
rights for discrimination in housing,
employment, or education
They might for committing a hate crime
Finally, it is often exceedingly difficult to
determine motive
Discussion of Hate Crimes as
Unconstitutional – Arguments For (cont.)
ƒ
Hate crime legislation does not punish
thought; it punishes conduct
ƒ
Thought and expression are protected by
the First Amendment; conduct is not
ƒ
Opinion of a person vice choosing that person
to be a victim
Discussion of Hate Crimes as
Unconstitutional – Arguments Against
(cont.)
ƒ
The fact remains that the actual
observable behavior committed by the
offender is identical to behaviors that are
not motivated by bias, yet only the
offender with bigoted thoughts will
receive an enhanced sentence
4
Discussion of Hate Crimes as
Unconstitutional – Arguments For (cont.)
ƒ
Hate-motivated crimes are not identical
to other crimes
ƒ
They differ in other dimensions, most
notably their effects on the victims and the
community
The Law’s Answer to the Puzzle:
Wisconsin v. Mitchell
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Kenosha, WI
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A group of African-Americans were discussing a
scene from the movie Mississippi Burning
One of them,
them Todd Mitchell,
Mitchell 19,
19 asks the group
group,
“Do you feel all hyped up to move on some white
people?”
They see Gregory Riddick, 14, who is white,
walking by across the street
Mitchell then says, “You want to fuck somebody
up? There goes a white boy; go get him.”
The Law’s Answer to the Puzzle:
Wisconsin v. Mitchell (cont.)
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The group beats Riddick so severely that he is
left in a coma for four days
Mitchell is convicted of aggravated battery
which in Wisconsin has a max sentence of 2
yrs
However, because the jury found that Mitchell
was motivated by race he was subject to the
hate crime penalty enhancement statute
He was sentenced to 4 yrs in prison
5
The Law’s Answer to the Puzzle:
Wisconsin v. Mitchell (cont.)
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Mitchell appealed his conviction
The Wisconsin Supreme Court declared the
hate crime law unconstitutional
ƒ
ƒ
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St t d that
Stated
th t it “punished
“
i h d what
h t the
th legislature
l i l t
h
has
deemed to be offensive thought”
Stated that the law was unconstitutionally broad in
that in order to prove a person selected a victim in
the prohibited manner, the state would need to
introduce evidence of a person’s prior speech
Stated that this would have a “chilling effect” on
free speech in general
The Law’s Answer to the Puzzle:
Wisconsin v. Mitchell (cont.)
ƒ
ƒ
Wisconsin appealed to the US Supreme Court
SCOTUS unanimously held that Wisconsin’s
law met constitutional standards
ƒ
ƒ
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The law punished conduct unprotected by the First
Amendment, not thought
Agreed with arguments that bias-motivated
offenses were worse than other crimes
It is relatively commonplace for a defendant’s prior
speech to be presented in court as evidence in
order to determine motive
Do Hate Crime Laws Have a
“Chilling Effect”?
ƒ
Motive must frequently be determined
through circumstantial evidence
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No other apparent motive
The defendant uttered slurs around the
time of the crime
The defendant was affiliated with a hate
group
These last two kinds of evidence raise
First Amendment issues
6
Do Hate Crime Laws Have a
“Chilling Effect”? (cont.)
A prosecutor might prove premeditation
in a murder case by showing that prior to
the killing, the offender said to a witness,
“I’m
I m going to kill him
him.”
The problem with hate crimes is that their
motives are proven almost exclusively by
the defendants speech and groups
ƒ
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Many hate crime convictions rest almost
entirely on the defendants biased words
ƒ
Do Hate Crime Laws Have a
“Chilling Effect”? (cont.)
Critics argue that to rest a hate crime conviction
nearly exclusively on proof of constitutionally
protected activities comes dangerously close to
punishing those activities themselves
ƒ
They claim that hate crime laws will have a chilling
effect on unpopular speech
ƒ
They also argue that heavy reliance on such
things as racial slurs and group membership to
determine motive is poor policy
ƒ
Heat of the moment utterances
Ulterior motives
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Do Hate Crime Laws Have a
“Chilling Effect”? (cont.)
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Others, including the SCOTUS have not
been convinced by these arguments
ƒ
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Evidence of a defendant’s prior speech is
common in criminal trials of all kinds
There is a significant difference between
making speech an element of a crime and
using speech to prove a crime
7
Other Constitutional Issues – Fourteenth
Amendment: Equal Protection Clause
ƒ
Equal protection clause was intended to
protect people from discrimination by the
government
ƒ
The SCOTUS has interpreted the clause
to allow differentiation, as long as the law
is supported by a legitimate state interest
ƒ
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In reality the govt. discriminates all the time
“Rational relationship” test
Other Constitutional Issues – Fourteenth
Amendment: Equal Protection Clause
(cont.)
ƒ
In a few cases, defendants have claimed that
hate crime laws violate the equal protection
clause
ƒ
No one has been successful with this argument
ƒ
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Gi greater
Give
t protection
t ti to
t some groups than
th others
th
Court stated that laws were based on a legitimate
state interest in preventing bias-related crimes
Court stated that it was not necessary to prove that
hate crimes are actually more harmful, but rather
they reasonably might be
Other Constitutional Issues – Fourteenth
Amendment: Due Process Clause
ƒ
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Meant to ensure that laws were fair,
both in substance and in
implementation
Two types of claims have been made
under the due process clause
8
Other Constitutional Issues – Fourteenth
Amendment: Due Process Clause (cont.)
1) The laws are so vague as to lead an ordinary
person to be uncertain of their meaning
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Terminology within the law
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“Color”
Color
“Intentionally selects”
“Harass”
Must the defendant be entirely motivated by the
victim’s group, or are mixed motives included?
Most of the challenges on these grounds have
been unsuccessful
Other Constitutional Issues – Fourteenth
Amendment: Due Process Clause (cont.)
2) Facts that result in sentence enhancements
must be proven beyond a reasonable doubt
„
Apprendi v. New Jersey, 2000
„
„
„
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Under NJ law,
law the judge,
judge not the jury
jury, was to determine
bias-motivation
The standard of proof was the more lenient
“preponderance of the evidence” vice reasonable doubt
Apprendi was found guilty of a hate crime and sentenced
to 12 yrs instead of 10
Appealed conviction on due process grounds
Other Constitutional Issues – Fourteenth
Amendment: Due Process Clause (cont.)
„
SCOTUS held that the NJ law was
unconstitutional
„
„
Due process requires any fact that increases
the penalty for a crime beyond the statutory
maximum must be submitted to a jury and
proved beyond a reasonable doubt
Decision will likely have little effect on state
laws as most states already require juries to
determine motive vice judges
9
Which Groups Should Be Protected?
„
„
„
All states with hate crime laws include at least
crimes based on race, ethnicity, and religion
Other states include additional categories
If one off the
th primary
i
values
l
off hate
h t crime
i
laws
l
is symbolic, i.e., that certain types of behavior
are intolerable, what message does that send
when a particular group is excluded from the
list?
Which Groups Should Be Protected?
Sexual Orientation
„
„
„
Probably the most controversial
16 states have laws that do not include sexual
orientation
Why is there such controversy over this issue?
„
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The problem has to do with the symbolic nature of
hate crime laws
Those who oppose homosexuality are afraid that:
„
„
Including homosexuality will send a message that the
govt. approves of it
Doing so will open the door to inclusion of gays and
lesbians w/in federal civil rights acts and other laws
Which Groups Should Be Protected?
Sexual Orientation (cont.)
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Another argument that has been given is that
sexual orientation is a choice
„
„
„
Only immutable characteristics, such as race and
ethnicity should be protected
ethnicity,
However, there is credible scientific evidence
that sexual orientation is a function of genes
and environment, not choice
Additionally, if sexual orientation is a choice,
then so is religion
10
Which Groups Should Be Protected?
Sexual Orientation (cont.)
One researcher argues:
„
“Failure to include sexual orientation implies that
gays and lesbians are not as deserving of
protection as racial, religious, or ethnic minorities,
and
d th
thatt sexuall orientation
i t ti iis nott as serious
i
a
social fissure line as race, religion, and ethnicity.”
„
„
(Lawrence, 1999)
It is possible that a calculated exclusion of this
category puts an implicit governmental seal of
approval on violence against gays and
lesbians
„
Which Groups Should Be Protected?
Gender
„
This category has also caused much debate
Some have argued that gender-based crimes
fall into the pattern of crimes based on race or
religion
li i
„
„
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Cite the inclusion of gender in antidiscrimination laws
Argue that gender-based crimes such as spousal
abuse and rape, may, like race-based crimes, be
intended to maintain a particular group’s subordinate
status
Which Groups Should Be Protected?
Gender (cont.)
„
Arguments against gender
„
„
Unnecessary to include because these
offenses are already punished by laws
against rape and domestic violence
Counter
„
„
For all hate crime cases, the underlying
offense is already punishable by other laws
Not all gender-based crimes are rapes or
DV
11
Which Groups Should Be Protected?
Gender (cont.)
„
Arguments against gender (cont.)
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“Floodgates” argument
„
„
The frequency of rapes and DV assaults would
overwhelm the justice system with these types
of hate crimes
Counter
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The ADL has concluded that in those
jurisdictions where gender is included, the
system has not been overwhelmed because
of prosecutor discretion
Which Groups Should Be Protected?
Gender (cont.)
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Arguments against gender (cont.)
„
„
Those who commit gender-based crimes do
not really “hate” women
Co nter
Counter
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Most hate crimes do not technically require
hate, they require only that the offender
choose the victim because of the victim’s
group
Which Groups Should Be Protected?
Gender (cont.)
„
Arguments against gender (cont.)
„
„
Gender-based crimes are unlike other kinds
of bias crimes because the gender-based
victim is individualized
Counter
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This is true for some, but not all genderbased crimes
Some hate crime victims are specifically
selected and are not random
12
Factors That Affect States’ Decisions
About Which Groups to Protect
„
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Why is there so much differentiation between
states as to which groups are protected by
hate crime laws?
Some researchers claim certain factors affect
whether and when hate crime laws are passed
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Economic
Political
Socioeconomic
Activities of neighboring states
Timing
Factors That Affect States’ Decisions
About Which Groups to Protect (cont.)
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There are clearly important regional
characteristics of hate crime laws
„
„
„
States along the West Coast & in the Northeast are
much more likely to protect sexual orientation than are
states in the Southeast, Midwest, & Mountain regions
Activist groups & social movements also play a
part in determining who is protected by hate
crime laws
Some have argued that the process of deciding
who will be protected is divisive and
counterproductive
Identifying & Prosecuting Hate Crimes
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California – A Case Study
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Each year, complaints are filed in only about 10-15%
of all known hate crime cases
Only about half of these cases result in a hate crime
conviction
In the end, only about 5% of the people whom police
report as committing a hate crime are ever convicted
of one
On top of that, it is estimated that far fewer than half of
all hate crimes are ever reported
13
Identifying & Prosecuting Hate Crimes
(cont.)
The reality is that if a person chooses to
commit a hate crime, that person has a
very small likelihood of being punished
for a hate crime
The problems lie in:
„
„
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The nature of hate crimes themselves
The process by which the laws are
enforced
Victims’ Reporting of Hate Crimes
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Many hate crime victims do not report the crime
to police
It is impossible to know what percentage of hate
crimes
i
are reported
t d
In general, people frequently do not report
crimes to the police
DOJ crime reporting estimates 2000
„
„
Only 47.9% of violent crimes
Only 35.7% of property crimes
Victims’ Reporting of Hate Crimes
(cont.)
„
Some have estimated that the rates are
even lower for hate crimes
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„
Perryy ((2001)) – Estimates that less than 20%
of hate crimes against gays and lesbians are
reported
B. Levin (1999) – Estimates fewer than one in
three hate crimes is reported
14
Victims’ Reporting of Hate Crimes
(cont.)
Reasons why hate crimes are not reported:
„
1) Lack of knowledge about what hate crimes are and how
the laws are applied
( ) that a hate crime was p
perpetrated
p
2)) Denial byy the victim(s)
3) Fear of retaliation by the perpetrator for reporting
4) Fear of being revictimized by law enforcement or a belief
that law enforcement does not want to address hate
crimes
5) Shame for being a victim of hate crime
6) Cultural or personal belief that one should not complain
about misfortune
Victims’ Reporting of Hate Crimes
(cont.)
Reasons why hate crimes are not reported (cont.):
„
7) Fear of being exposed as GLBT to one’s family,
employer, friends, or the general public
8) Lack of English language proficiency and knowledge of
h
how
tto reportt hate
h t crimes
i
9) Fear of being identified as an undocumented immigrant
and being deported
10) Fear on the part of people with disabilities who use
caregivers that the caregivers who have committed hate
crimes against them will retaliate and leave them without
life-supporting assistance
11) Inability of some people with disabilities to articulate
when they have been a victim of hate crime
Police Responses to Hate
Crimes
„
Assuming a hate crime is reported, there
are many potential barriers that exist
between the reporting and a conviction
„
„
The responding officer may not interpret or
report the crime as hate motivated
Police have the power of discretion and act
as the gatekeepers to the CJ system
15
Police Responses to Hate
Crimes (cont.)
Even when the police believe that a hate
crime has occurred, there may be
personal/departmental reasons for wanting
t avoid
to
id recording
di it as such
h
„
To avoid the additional bureaucratic
requirements related to hate crime
Personal belief that hate crimes aren’t worth
pursuing
Dept. wishes to underplay the prevalence of
bias in their city
„
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„
Police Responses to Hate
Crimes (cont.)
„
Other factors that influence police hate
crime reporting
„
„
„
Race of the victim
Victim’s own perception of the event
Departments interpretation of hate crimes
might be overzealous
Police Responses to Hate
Crimes (cont.)
„
Results
„
„
What is defined as bias-motivated is arbitrary
and results in statistical reports are
uninterpretable and may be misleading
(Martin, 1995)
Researchers Boyd, Berk, and Hammer
looked at hate crime reporting in two
divisions of the same PD
„
Found significant differences between the way the
two classified hate crimes
16
Factors Influencing Police Hate Crime
Reporting – Individual Encouragers
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Dept. policy mandates reporting
Belief that early ID of problem is key to effective solution
Belief that it is an important part of the job
Belief that it will help prevent problems
Belief that reporting will prevent officer liability
Belief that hate crimes are morally wrong
Encouraged to report by dept. officials
Encouraged and supported by supervisors/colleagues
Clear, understood, and accepted dept. policy
Factors Influencing Police Hate Crime
Reporting – Individual Encouragers (cont.)
„
„
„
„
„
„
Belief that reporting hate crimes benefits victims and
communities
Internal checks ensure officers don’t misidentify hate
crimes
Being recognized by other officers as good at
investigating and recording hate crimes
Desire to be considered a good police officer
Reporting hate crimes is encouraged and rewarded by
the dept.
Personal desire to comply with departmental policy
Factors Influencing Police Hate Crime
Reporting – Individual Discouragers
„
„
„
„
„
„
„
„
Belief that reporting hate crimes is not viewed as
important by dept. officials
Too much additional work
Sometimes runs counter to officer
officer’s
s beliefs
Belief that hate crimes are not serious
Belief that hate crimes should not be treated as special
Little concern for some minority groups
Not the job of police (more like social work)
Not recognized or rewarded for reporting hate crimes
17
Factors Influencing Police Hate Crime
Reporting – Individual Discouragers (cont.)
„
„
„
„
„
„
„
Informally encouraged to adjust complaints because of
large numbers of calls for service
Lack of common definition of hate crime
Fear that the incident will be blown out of proportion
Officer already too busy
Personally opposed to supporting gay and minority
political agendas
Lack of training
Victims do not want to assist in prosecution
Prosecuting Hate Crimes
„
Prosecutors, like police, have a large amount of
discretion
„
„
„
„
May even receive less training on hate crimes than
police officers
„
„
Decide which cases to pursue
Some prosecutors are elected and may be subject to political
and social pressures
May be faced with overburdened or limited resources
May not have a lot of experience/familiarity with such cases
May be influenced by their own personal biases
Prosecuting Hate Crimes (cont.)
„
„
All crimes go through the same series of
decision makers
However, hate crimes have one important
di ti ti
distinction:
„
„
They require that each of the decision makers
determine the offender’s motive
Determination of another person’s motivation is
subjective and not always easy
„
Interpretations are subject to our own biases and
expectations
18
Paradoxical Effects of Hate
Crimes
„
Arguments have been made that hate
crime laws actually harm members of
minority groups
Hate crime laws might inspire complacency
„
„
„
Legislators
Advocacy groups
Hate crime laws might cause resentment of
minorities
„
„
“Teacher’s pet syndrome”
Paradoxical Effects of Hate
Crimes - Arguments
„
Hate crime laws might disempower
minorities
Official hate crime data have shown that,
although African Americans are
disproportionately likely to be victims of hate
crimes, they are also disproportionately
likely to be identified as perpetrators
„
Paradoxical Effects of Hate
Crimes - Arguments (cont.)
„
Hate crime laws might increase prejudice at
the individual level
„
„
„
„
Hate crime convictions are unlikely to reform the
perpetrator
May actually make them a martyr among their
peers
Perpetrator may actually blame the group to which
the victim belongs
Prisons are prejudice-ridden
19
Paradoxical Effects of Hate
Crimes - Arguments (cont.)
Hate crime laws might increase prejudice
at the community level
„
Theory of attitudinal inoculation
„
If people have never been exposed to weak
counterarguments to the beliefs they hold, they
are especially vulnerable to strong arguments
Hate crime laws might discourage people from
openly expressing biased beliefs
People who never hear these types of beliefs
might fall later under the influence of a particularly
persuasive speaker
„
„
„
Paradoxical Effects of Hate
Crimes - Arguments (cont.)
Hate crime laws might increase prejudice
at the community level
„
Cognitive dissonance theory
„
When people are given a small reward for acting
in a way contrary to their beliefs, they may
changes those beliefs
This is because they conclude that the reward
was not large enough to justify their actions, so
therefore they assume that their actions must
really reflect their beliefs
„
„
Paradoxical Effects of Hate
Crimes – Arguments (cont.)
„
Cognitive dissonance theory (cont.)
„
„
Similarly, if people are threatened with only small
punishments for certain behaviors, they may conclude
that they avoided those behaviors because they
actually did not want to perform them
On the other hand, when people are given large
rewards (or threatened with large punishments), their
beliefs do not change
„
They assume that their behavior is due to the reward or
punishment rather than the intrinsic motivations
20
Paradoxical Effects of Hate
Crimes – Arguments (cont.)
„
Cognitive dissonance theory (cont.)
„
„
„
Individuals who have biased beliefs may conclude
that their restraint from committing hate crimes is
because off the possibility off harsh punishment
They will not be motivated to change their beliefs &
will continue to act out in ways that aren’t illegal
If the laws are ever repealed, their rationale for not
committing them will disappear, and they may be
even more likely to commit those acts
21