Hate crime regulation and challenges

• Author: Elaina Rahrig/Arielle Schechtman/Meagan Kenner/Catherine Matous
• Pages: 573-593

HATE CRIME REGULATION AND CHALLENGES

EDITED BY ELAINA RAHRIG, ARIELLE SCHECHTMAN, MEAGAN KENNER, AND

CATHERINE MATOUS

I. INTRODUCTION.......................................... 573

A. RATIONALE ........................................ 574

B. STATISTICS ........................................ 575

II. FEDERAL HATE CRIME LEGISLATION .......................... 576

A. KU KLUX KLAN ACTS ................................ 578

B. CIVIL RIGHTS ACT OF 1968 ............................ 579

C. VIOLENCE AGAINST WOMEN ACT ........................ 582

D. VIOLENT CRIME CONTROL AND LAW ENFORCEMENT ACT OF 1994 . . 584

E. MATTHEW SHEPARD ACT OF 2009........................ 584

III. PROPOSED LEGISLATION ................................... 586

IV. STATE HATE CRIME REGULATION ............................ 586

V. CONCLUSION ........................................... 592

I. INTRODUCTION

The introduction of hate crime legislation within the legal framework of the

United States has been a slow but steady endeavor, prompting polarizing debates

between lawmakers, lobbyists, and the general public.

1

See Bill Dobbs, Wade Henderson, Tish Durkin, James B. Jacobs, Chris Anders, & Hayley

Gorenberg, Are Hate Crime Laws Necessary?, N.Y. T IMES (Mar. 7, 2012), https://perma.cc/S48X-

TLLU.

These arguments often

center on the perceived subjectivity of hate crime liability.

2

Notwithstanding dis-

agreements in interpretation and application, the definition of what constitutes a

hate crime is laid out in federal statute.

3

Hate crimes, or bias-motivated crimes, are characterized by two key factors.

First, since “[h]ate, in and of itself, cannot be criminalized .. . hate crimes are

‘traditional offenses.’”

4

In other words, hate crimes are not separate forms of

criminal activity, but rather consist of actions that are already criminalized. A

hate crime may consist of a violent act, destruction of property, interference with

rights, or expressive conduct. Second, the perpetrator of the criminal act purpose-

fully selects a victim on the basis of actual or perceived race, color, religion,

national origin, gender, sexual orientation, gender identity, or disability.

5

Thus,

1.

2. Ryan D. King, Hate Crimes: Perspectives on Offending and the Law, in HANDBOOK ON CRIME

AND DEVIANCE 525, 527–33 (Marvin D. Krohn, Alan J. Lizotte, & Gina Penly Hall eds., 2009).

3. See generally 18 U.S.C.A. § 249 (2022).

4. PETER G. BERRIS, CONG. RSCH. SERV., R47060, OVERVIEW OF FEDERAL HATE CRIME LAWS

1 (2022).

5. King, supra note 2.

573

what distinguishes hate crimes from the traditional offenses upon which they are

based is the perpetrator’s biased motivation, which increases the associated

penalties.

6

This Article is an overview of legislation on hate crimes, an analysis of such

legislation in the courts, and a review of related academic discussion. Part I

begins with an overview of federal hate crime regulation, including the rationale

for passing legislation and an analysis of the statistics supporting this rationale.

Parts II and III review the types of federal hate crime statutes that have been

passed, and the major categories of hate crimes that have been addressed or con-

templated by federal legislators. Part IV discusses progress made in state hate

crime legislation and how it differs from federal legislation.

A. RATIONALE

There are numerous rationales to statutorily distinguish hate crimes from tradi-

tional offenses.

7

The most cited rationale is the idea of community harm; if an

individual is victimized because of another’s hatred for a group with which the

victim identifies, the crime committed is not solely against the individual, but the

group as well, and ultimately society as a whole.

8

See generally Michael Lieberman, Hate Crimes, Explained, S. POVERTY L. CTR. (Oct. 27, 2021),

https://perma.cc/273X-9WUV (explaining that the FBI has documented four main motivations for hate

crimes: excitement seeking, defensive rationalizations, retaliatory efforts, and premeditated missions).

The extension of individual to

societal harm proceeds on the logic that hate crimes “may effectively intimidate

other members of the victim’s community, leaving them feeling terrorized, iso-

lated, vulnerable, and unprotected by the law. By making the victim’s community

fearful, angry, and suspicious of other groups—and of the power structure that is

supposed to protect them—these incidents can damage the fabric of our society

and fragment communities.”

9

Essentially, to maintain large-scale order in society,

crimes that target communities must be criminalized as a deterrent.

Opponents of legislative intervention do not find this rationale convincing.

Commonly cited in arguments against hate crime legislation is the belief that

additional charges for “thought crimes” are unnecessary and without legal basis.

Said another way, a criminal’s morally repugnant bias should not factor into the

punishment when the crime could be charged under existing legislation.

10

To

opponents of hate crime laws, considering motivation in criminal liability is a

6. BERRIS, supra note 4, at 56.

7. David Brax & Christian Munthe, The Philosophical Aspects of Hate Crime and Hate Crime

Legislation: Introducing the Special Section on the Philosophy of Hate Crime, 30 J. INTERPERSONAL

VIOLENCE 1687, 1695 (2015) (arguing that hate crimes warrant separate legislation because of its

tendency to cause more emotional harm than other crimes, others argue that certain minority groups

warrant enhanced protections, and finally some believe the victim’s perception of the crime should

impact the execution of hate crime policies).

8.

9. Id.

10. Tom Ellis & Nathan Hall, Hate Crime, in THE CAMBRIDGE HANDBOOK OF FORENSIC

PSYCHOLOGY 511–519 (Jennifer M. Brown & Elizabeth A. Campbell eds., 2010).

574 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 24:573