REFRAMING HATE.

• Author: Wang, Lu-In

INTRODUCTION 848 I. PROTOTYPICAL PERPETRATORS AND SUITABLE VICTIMS 855 II. NO NEED FOR HATE: OPPORTUNISTIC BIAS CRIMES 864 CONCLUSION: SUITABLE VICTIMS AND SELECTIVE SYMPATHY 871 INTRODUCTION

With the rise of anti-Asian violence during the COVLD-19 pandemic, (1) renewed attention has focused on hate crimes and hate crimes legislation. The concept and naming of "hate crime" as a distinct problem in the United States is itself relatively new. The term "hate crime" likely originated in 1985 with the bill that became the Hate Crimes Statistics Act, (2) while the criminal offense that has come to be labeled "hate crime" was introduced in the Anti-Defamation League's (ADL's) 1981 model legislation to criminalize ethnic intimidation. (3) Many of the issues that were debated in the 1980s and 1990s remain alive today and have received renewed attention in the last couple of years. These issues include concerns about the legitimacy, justifiability, constitutionality, practicality, and effectiveness of hate crime laws.

Most states have enacted some form of a hate crime statute that follows the ADL ethnic intimidation model, and federal law incorporates some features of the ADL model as well. (4) The most widely adopted feature of the ADL model is also the focus of the most controversy. (5) That feature is its penalty enhancement approach, under which punishment for conduct that already constitutes a crime, such as assault or arson, may be increased if the perpetrator committed the crime because of the victim's--or, under some statutes, another individual's or group's (6)--actual or perceived race, color, religion, or other enumerated personal characteristic or social group membership. (7) The Department of Justice explains the crime in plainer terms through a simple graphic on its website: (8)

If this depiction was used to illustrate the penalty enhancement approach, the "hate crime," which includes the "motivation for committing the crime based on bias," would be punished more severely than the underlying "crime." (9)

This deceptively simple concept--increased punishment for a biased motivation--is central to the debate between supporters and critics of hate crime legislation. For supporters, to punish someone more severely based on their biased motivation is both logical and justified: Hate crime perpetrators are thought to have greater moral culpability because of their biased motives (10) and because their crimes inflict greater psychic and social harm on the immediate victims, targeted groups, and broader community. (11) Further, increasing punishment for a biased motive is thought to deter future acts of bigotry (12) and express society's condemnation of such acts and its commitment to equality and social justice. (13)

For critics, however, to punish someone more harshly because of their bias against a particular social group raises questions about the message the law conveys, as well as its constitutionality and effects. To some critics, hate crime laws send two different but equally troubling messages: Some crime victims are either "worth" more (14) or should receive more protection than others. (15) The latter argument has been framed, unsuccessfully, as an equal protection issue. (16) The contention that animated the most prominent controversy of the 1990s is that hate crime laws create a "thought crime" and violate the First Amendment by punishing the perpetrator's bigoted beliefs or expressions. (17) That issue was seemingly put to rest by the Supreme Court with its 1993 decision upholding a state hate crime statute in Wisconsin v. Mitchell, (18) but it still resonates in present day debates. (19)

Critics also contend that hate crime laws are ineffective and counterproductive for a number of reasons. They argue that the laws fail to address the systemic causes of racist violence, instead offering a diversionary, feel-good alternative that makes scapegoats of individual perpetrators. (20) This point may be juxtaposed with the concern that hate crime laws potentially "fight[] injustice through unjust systems." (21) That is, the laws take a carceral approach to protecting the very communities that have suffered disproportionately from law enforcement surveillance, prosecution, and imprisonment, (22) and offer the state yet another means by which to impose those burdens on members of these same communities through differential enforcement. (23)

A related concern is that hate crime laws do little to protect marginalized communities in light of widespread distrust of law enforcement, which often dissuades members of these communities from reporting hate crime incidents. (24) Critics further argue that hate crime laws exacerbate rather than ameliorate tensions among social groups by drawing attention to their differences. (25) The penalty enhancement approach also seems to be misaligned with its own justification, because increasing punishment does little to address the greater harms the crime inflicted on the victim and community. (26) Alternative approaches focused on restorative justice and social support for targeted individuals and communities, for example, would be more responsive to those harms. (27)

Furthermore, empirical and practical questions raise doubts about the efficacy of hate crime legislation to reduce the perpetration of violence against socially vulnerable groups. Some question whether the prospect of increased punishment would actually deter someone from committing a hate crime. (28) In addition, the prosecutorial decision whether to designate an act as a hate crime can be both practically difficult and politically charged when the perpetrator's motivation is unclear. The penalty enhancement model for hate crimes can actually serve as a disincentive to bring hate crime charges because proving a bias motive is often "immensely difficult" (29) and might not result in an appreciably greater sentence, especially in cases involving the most serious underlying crimes. (30) Declining to prosecute a case as a hate crime, on the other hand, can be demoralizing to and provoke outrage from the targeted community. (31)

The purpose of this Essay is not to engage these questions directly, but to identify misapprehensions in the popular understanding of hate crimes upon which these debates often rest. It also seeks to draw connections among high profile hate crimes and other, more mundane forms of bias-motivated crime and everyday discrimination--connections that the prevailing narrative about hate crimes can obscure and thereby, perhaps ironically, strengthen. The discussion begins by describing a set of common assumptions about hate crimes. These assumptions are based in popular or prototypical images of hate crime, its perpetrators, and its victims. The images and assumptions are understandable given the naming (32) and most salient examples of the problem, which have tended to be "spectacular, not typical, cases." (33) As the Essay will then explain, this popular view emphasizes the deviance of perpetrators (34) and minimizes the differences of victims. (35) In so doing, it overlooks the extent to which hate crimes both are influenced by and reinforce mainstream society's message that certain groups are appropriate targets for ill treatment. (36) This exceptional understanding of hate crimes has the (perhaps counterintuitive) effect of normalizing ill treatment of the usual target groups. (37) That normalization in turn causes the expected targets to become the suitable targets, whose victimization we come to accept--or fail to notice.

1. PROTOTYPICAL PERPETRATORS AND SUITABLE VICTIMS

   Certain images come readily to mind when we think about hate crimes: the racial violence of this country's lynching era, (38) along with more recent cases that followed a similar pattern; (39) "gay bashing" by packs of juvenile or young adult males who set upon and beat a gay man as a "kind of sport"; (40) assaults on Arab or Muslim, or Arab- or Muslim-appearing individuals following 9/11; (41) and, especially during the COVID-19 pandemic, violent attacks and vandalism against Asian Americans and Pacific Islanders and their businesses. (42) These incidents gave rise to a prototype or paradigm that has shaped our understanding of hate crime: (43)

   The prototypical case is a stranger-on-stranger crime, usually involving multiple perpetrators who target an individual victim who represents a hated social group, inflict on that person extreme, gratuitous violence, and appear to have no goal other than to terrorize, injure, or kill. (44) The prototypical hate crime is a murder, despite the fact that the vast majority of hate crimes are lower-level offenses, often property crimes such as vandalism. (45)

   The prototypical perpetrator and victim have well-known profiles as well, as Clara S. Lewis elaborated in her exploration of the cultural politics of hate crimes. (46) The "[p]aradigmatic modern-day hater[]" (47) is cast as a "peripheral evildoer" (48) on the fringes of society--"a loser and a loner" (49) far removed from the mainstream. He (50) is "symbolically situate[d]... within the lowest possible economic class," (51) painted as "white trash," with its associations with trailer parks, troubled childhoods, unemployment, and "failed performances of masculinity." (52) The paradigmatic perpetrator also is a monster, demon, or '"hard-core hater'" with ties to white supremacist hate groups. (53) Portrayals of hate crime perpetrators often fixate on mental illness as well, thereby "both amplifying the demonization of haters and medicalizing bigoted belief systems." (54) This focus on mental illness has been prominent in news accounts of anti-Asian violence, many of which reported on perpetrators' histories of erratic behavior, homelessness, and institutionalization. (55) A more bizarre example can be found in early reporting on the Atlanta "spa killer," who asserted that he was driven to murder his eight victims, six of...