Punishing Hate, Bias Crimes Under American Law.

• Author: Hanser, Russell P.
• Position: Review

Frederick M. Lawrence, PUNISHING HATE: BIAS CRIMES UNDER AMERICAN LAW (Cambridge, Mass., Harvard University Press, 1999) 269 pp.

In recent years, Americans have been shaken by numerous prominent acts of hate-based violence. In December 1993, Colin Ferguson, an African American, opened fire on Caucasian and Asian-American passengers of a Long Island Railroad train, killing six and injuring nineteen.(1) On June 7, 1998, several white supremacists in Jasper, Texas beat forty-nine-year-old African-American James Byrd Jr., tied him to the back of a pickup truck, and dragged him to his death.(2) In October 1998, Matthew Shepard--a gay University of Wyoming student--was savagely beaten, tied to a fence, and left to die.(3) On August 10, 1999, former Aryan Nation member Buford Furrow, Jr. fired upon children in a Los Angeles Jewish Community Center, injuring five; he later asserted that he had conceived of his attack as "a wake-up call to America to kill Jews."(4) The list goes on and on.

In Punishing Hate: Bias Crimes Under American Law,(5) Frederick M. Lawrence argues that criminals motivated by bias(6) can (as a constitutional matter) and should (as a prudential matter) be punished more severely than those who are not so motivated but who commit otherwise identical crimes. Part I of this Book Review sets out Lawrence's arguments in some detail. Part II probes and criticizes several of these arguments. I do not dispute that those who commit crimes in an attempt to strike fear into the hearts of the victim and the victim's community, and especially those who succeed in that regard, are ripe candidates for enhanced criminal punishment. I do, however, challenge the means whereby Lawrence proposes to differentiate those who deserve such penalty enhancement from those who do not, and I suggest that a different approach would better effectuate his ends. I contend that two of the central hurdles facing the case for penalty enhancement--specifically, the Eighth Amendment's bar on excessive criminal punishment and the First Amendment's prohibition against content-based government restriction on a citizen's thought or speech--might be more convincingly surmounted by a focus on the harms inflicted by hate crimes rather than on bias per se.

1. PUNISHING HATE: LAWRENCE'S ARGUMENT

   Lawrence notes that the issues raised by bias crimes and the punishment of those crimes implicate "three fundamental values of the American polity: equality, free expression, and federalism" (p. 2). He thus centers his inquiry on three interrelated questions:

   Must a society that is dedicated to equality treat bias crimes differently from other crimes, and must it enhance the punishment of these crimes? May a society that is also dedicated to freedom of expression and belief enhance the punishment of bias crimes? Is a prominent federal role in the prosecution and punishment of bias crimes consistent with the proper division of authority between state (and local) government and the federal government in our political system? (p. 2). For Lawrence, the correct answer is, in each instance, "yes." Moreover, he contends that enhanced punishment is not simply permitted, but in fact "mandated by our societal commitment to the equality ideal" (p. 3).

   Lawrence first distinguishes bias crimes from their "parallel" alternatives. Some criminals, he notes, act with utter disregard for the identities of their victims (p. 9). Others--those, for example, who commit crimes of passion or who exact premeditated revenge--choose their victims with specific reference to their identities and, in fact, would not commit the same crime against any other target (p. 9). Bias crimes fall into a third class; they "are crimes in which distinct identifying characteristics of the victim are critical to the perpetrator's choice of victim," but "in which the individual identity of the victim is irrelevant" (p. 9). Although the precise boundaries separating these three categories will always be difficult to discern, Lawrence proposes that an offense is only a bias crime if it would not have been committed but for the victim's membership in a particular group(p. 10).(7) What matters most, though, is not the desire to inflict harm upon certain groups (or members thereof), but the underlying animus itself: "Hate-based violence is a bias crime only when the hatred is connected with antipathy for a racial or ethnic group or for an individual because of his membership in that group" (p. 9).

   Lawrence next considers which groups qualify for the protection of hate crime laws. He argues that in order for the criminal law to enhance punishment for a bias crime, the "antipathy [animating the offense] must exist in a social context, that is, it must be an animus that is shared by others in the culture and that is a recognizable social pathology within the culture" (p. 11). Of apparently great significance are the questions whether the victim class has endured a "history of discrimination" and whether "any ideology or world view ... connects those who do not trust them" (p. 12). Lawrence expresses his hesitance "to identify a definitive list of characteristics that yield groups that might properly be included in a bias crime statute," (p. 13) but elsewhere he is less coy: "As a normative matter, `bias' should include bigotry on the basis of race, ethnicity, religion, national origin, sexual orientation, and, in certain instances, gender" (p. 3).

   The inclusion of gender, Lawrence acknowledges, poses particularly difficult problems. In cases of acquaintance rape and domestic violence, the victim's gender plays a central role, but her particular identity is crucial as well. Nonetheless, Lawrence would label such attacks bias crimes, because they "attack women as a means of enforcing a particular social hierarchy.... The lack of a prior relationship may be a description of most bias crimes, but it is not a sine qua non for all bias crimes" (p. 16). What matters most, Lawrence maintains, is the "but for" test described above: if the victim had not been female, would the crime still have been committed?

   Lawrence also supports extending the bias crime label to cover attacks motivated by the victim's sexual orientation. As he writes, "if one of the purposes of bias crime statutes is to protect frequently victimized groups, sexual orientation is particularly worthy of inclusion" (p. 18). Lawrence notes that some critics assert that homosexuality is a "mutable" characteristic--that is, that homosexuals are not born, but made, and can be unmade--and that sexual orientation is therefore a classification unfit for protection under hate crimes statutes. Lawrence gracefully dispenses with such claims: first, the mutability of homosexuality "is far from clear." There is much evidence that sexual orientation is indeed immutable, whether for genetic reasons alone, or for some combination of genetic and environmental reasons (p. 18). Second, there is no obvious reason to confer talismanic significance upon immutability. The mutability argument "could [also] be made with respect to religion, one of the classic bias crime characteristics" (p. 19). That argument, then, proves too much, as it would strip bias crime protection away from Jews, Muslims, Buddhists, or Baptists as well as from homosexuals.

   Lawrence next presents data concerning the prevalence of hate-based violence. Although the evidence is mixed, Lawrence concludes that bias crimes in the United States have become increasingly frequent since the mid-1980s (pp. 21-25). In addition, Lawrence contends that those crimes have become more violent; "property crimes such as spray painting, defacement, and graffiti" have given way "to personal crimes such as assault, threat, and harassment" (p. 21). Lawrence cites several potential culprits for the apparent rise in hate-based violence, including "the shrinking of the middle class," "the rise of a tenuous, service-oriented economy" (p. 25), and the Internet's role in facilitating communication among formerly isolated bigots (p. 24). He concludes that these factors, as well as the rise of white supremacist groups and the militia movement and an increase in hate crimes perpetrated by, rather than against, African-Americans, all suggest that America's bias crime problem will continue to fester for the foreseeable future (pp. 21-28).

   Having defined the terms of the hate crime debate and stated his case for its growing relevance, Lawrence attempts to distinguish bias crimes from their "parallel" analogues. He first notes that "virtually every state now expressly criminalizes bias crimes" (p. 29), and describes the forms that these states' hate crime statutes typically assume. One, which Lawrence calls the "discriminatory selection model," requires that the defendant select the victim on the basis of the victim's membership in a particular group (p. 30). Such selection could be motivated by hatred for that group, but need not be (p. 30). For example, a thief who opts to rob a woman on the assumption that she will be wearing more jewelry or will be less capable of resistance than a man has selected his victim on the ground that she is female, but has not exhibited any hatred against women. The other variety of bias crime statute, which looks for "racial animus,"(8) requires that the defendant acted out of hatred for the group to which a victim belongs or for the individual by virtue of being a member of that group (p. 30). "This model is consonant with the classical understanding of prejudice as involving more than differential treatment on the basis of the victim's race" (p. 34).(9) Finally, Lawrence notes that many states have enacted "because of" bias crime statutes, which "require only that the defendant has committed the ... crime ... because of the victim's race" (p. 36). These statutes, Lawrence argues, might fall closer to either of his two primary categories, for it is unclear whether "because of" implies...