Punishing hateful motives: old wine in a new bottle revives calls for prohibition.

• Date: 01 May 1999
• Author: Steiker, Carol S.

HATE CRIMES: CRIMINAL LAW & IDENTITY POLITICS. By James B. Jacobs and Kimberly Potter. New York: Oxford University Press. 1998. Pp. viii, 212. $24.95.

"Hate crimes" are nothing new: crimes in which the victim is selected because of the victim's membership in some distinctive group (be it racial, ethnic, religious, or other) have been with us as long as such groups have coexisted within legal systems. What is relatively new is their recognition and designation as a discrete phenomenon. But as appellations like "sexual harassment" and "community policing" have begun to teach us, words are only the beginning of the life cycle of a new socio-legal concept. What follows are debates about whether the new category is really a coherent one, what activities should fall within and outside of it, what legal and social strategies should regulate these activities, and, inevitably, whether the whole thing was a good idea in the first place, given the consequences that followed.

The concept of "hate crimes" would be cresting if it were a wave; to stick with the life-cycle metaphor, it is in the prime of its life. Legislators on both the federal and state levels are busy drafting and debating new hate crime laws.(1) Courts, including the United States Supreme Court, have been called upon to rule on constitutional issues raised by such laws.(2) Academics have been publishing articles and books on the topic at a furious rate.(3) The general public has been continually engaged in the debate by the intense media attention the topic has attracted, especially in the wake of such high-profile crimes as the gruesome murders last year of Matthew Sheppard, an openly gay student at the University of Wyoming who was beaten, tied to a fence, and left to die by homophobic assailants;(4) and of James Byrd, Jr., a black man who was chained to the back of a pickup truck and dragged to his death in Texas by ex-convicts with ties to white supremacist groups.(5) Proponents of hate crime laws point to heinous crimes like these as evidence of the need for enhanced law enforcement tools; they argue that realization of our collective commitment to social equality depends on such government initiatives. Opponents of hate crime laws contend that general laws prohibiting assault, murder, and the like are sufficient for even the most egregious offenses and that the many costs of hate crime laws far outweigh their benefits.

James B. Jacobs(6) and Kimberly Potter(7) emphatically add their voices to the latter chorus. Indeed, Hate Crimes: Criminal Law & Identity Politics often has something of the quality of an advocate's brief on the subject, in which it turns out that every conceivable argument in favor of hate crime legislation is simply wrong. Building on some of their earlier work, Jacobs and Potter examine hate crime laws from every possible angle and find nothing, except perhaps good intentions, to recommend them (p. 145). The authors begin with conceptual difficulties in the use of hate crime as a category. They elaborate on the challenges of defining prejudice and figuring out which prejudices should be covered by hate crime laws (pp. 11-21). Moreover, even if these initial conceptual hurdles could be cleared, they argue, determining the causal relationship between prejudice and action is further fraught with problems (pp. 21-27). Potter and Jacobs go on to argue that there really is no need for hate crime laws anyway, marshaling criminological research to contest claims that we are witnessing a hate crime "epidemic" (pp. 45-64). A bit inconsistently, they then assert that there is nothing inherently worse about hate crimes than ordinary crimes committed without bias (implicitly suggesting that even an "epidemic" of hate crimes should not be a cause of special concern) (pp. 79-91). In addition to being unnecessary, contend Jacobs and Potter, hate crime laws are affirmatively harmful in that they pose serious problems of enforcement (pp. 92-93), violate the Constitution by punishing people for "politically incorrect opinions and viewpoints" (pp. 128, 111-29), and "undermine social solidarity" by reinforcing "identity politics" (pp. 144, 130-44).

This is an impassioned book, both benefitted and burdened by the emotional investment that passion lends to analysis and advocacy. On the debit side, Potter and Jacobs sometimes seem one-sided in their presentation of controversies by not always presenting the arguments of their adversaries in the most fair or compelling fashion? or by requiring more empirical support from their adversaries than they are able to provide for their own policy prescriptions.(9) On the credit side, however, the book's comprehensive treatment of its subject is likely to give it broad appeal; the wide-ranging scope of the arguments against hate crime laws assembled by Jacobs and Potter enhances the likelihood that the book will have some impact upon a diverse audience. Those who are not convinced of the insurmountability of the conceptual problems might well find the empirical case against hate crime laws compelling, or the philosophical case, or the constitutional case, or the pragmatic case, based on the myriad issues raised by Jacobs and Potter regarding investigation, litigation, and data collection in hate crime cases. Approaching the book without a passionate commitment of my own, but leaning by general inclination the other way, I found myself engaged, although not necessarily convinced, by many of its arguments. I certainly can say that I finished the book considerably more thoughtful and, indeed, more troubled than when I began.

Rather than attempt any comprehensive assessment of the disparate arguments advanced in the book, I focus my attention here on one particular argument -- that hate crime laws are unconstitutional (and also a bad idea) because, by punishing disfavored discriminatory motives for criminal acts, they impermissibly punish thought. This argument, the subject of Chapter Eight of Hate Crimes, is but one arrow in the authors' hefty quiver of arguments against hate crime legislation. I focus on it, however, partly because it is an argument opponents of hate crime laws advance with great frequency and vehemence,(10) and partly because I find this argument puzzling every time I come across it. By exploring the source of my puzzlement, I hope to advance two arguments of my own: first, that hate crime legislation is not a significant departure from the rest of the substantive criminal law, and second, that the failure of many commentators (Jacobs and Potter among them) to recognize this continuity camouflages the extent to which the debate surrounding hate crime laws is fundamentally grounded in differences about politics or political strategy.

1. ARE HATE CRIME LAWS DIFFERENT FROM THE REST OF THE SUBSTANTIVE CRIMINAL LAW?

   The argument that hate crime laws are unconstitutional under the First Amendment is based on a view of hate crime legislation as radically discontinuous with the rest of substantive criminal law. Under this view, hate crime laws represent a dangerous departure from the heartland of (appropriate) criminal prohibitions in that they punish speech and thought in much -- or even exactly -- the same way that laws directly criminalizing offensive expression do. Thus, the chapter that Jacobs and Potter devote to this argument begins with a discussion of the history and legal permissibility of so-called "hate speech" regulation (pp. 112-21). Jacobs and Potter build up to the Supreme Court's 1992 decision in R.A.V. v. St. Paul,(11) in which the Court unanimously rejected as unconstitutional an ordinance criminalizing as a form of "disorderly conduct" the placing of symbols or graffiti like (but not limited to) "a burning cross or Nazi swastika" when one knows or should know that such symbols will cause offense "on the basis of race, color, creed, religion, or gender...."(12) The majority opinion for the Court "acknowledged that the government could criminalize constitutionally unprotected fighting words, but insisted that the government could not criminalize only those fighting words that express ideas that the government disfavors" (p. 124). For Jacobs and Potter, this reasoning rejecting a hate crime law that criminalized purely expressive behavior necessarily entails the rejection of hate crime laws that enhance the punishment of people who engage in criminal behavior when motivated by disfavored attitudes.

   Thus, Jacobs and Potter find the Supreme Court's 1993 decision in Wisconsin v. Mitchell(13) both unfathomable and indefensible. In Mitchell, the Court -- once again unanimously -- upheld the constitutionality of Wisconsin's hate crime statute authorizing an increased sentence for any offender who intentionally selects a victim "because of race, religion, color, disability, sexual orientation, national origin or ancestry."(14) The Court distinguished its decision of the previous year on the ground that "whereas the ordinance struck down in R.A.V. was explicitly directed at expression (i.e., `speech' or `messages'), the statute in this case is aimed at conduct unprotected by the First Amendment."(15) To Jacobs and Potter, this distinction is wholly unconvincing because "the point remains that the sentence enhancement is triggered by some prejudices and not others. A similarly situated offender, who engaged in the same conduct, but for reasons of personal jealousy or spite, would have received one-third the sentence that Mitchell received" (p. 126).

   Viewed in this way, through the lens of First Amendment limitations on hate speech regulation, the Court's refusal to limit hate crime regulation in a similar fashion can seem oddly contradictory -- an exercise in aridly formalistic line drawing, as Jacobs and Potter contend. But viewed through the lens of the substantive criminal law, it is the limitations urged by Jacobs and Potter -- not the new hate crime laws -- that seem oddly...