In their book, Hate Crimes: Criminal Law and Identity Politics (Oxford University Press), law professor James Jacobs and lawyer Kimberly Potter dissect and challenge the rationale for "hate crime" legislation. Here is some of what they have to say:
It is a serious mistake for the government to pursue the goal of seeking to identify and highlight the maximum possible amount of prejudice in the crime problem by counting as a hate crime every offense motivated in any degree by the offender's prejudice. This definition sweeps under the hate crime umbrella crimes involving low-intensity prejudices that bubble to the surface during ad hoc conflicts. The majority of hate crimes turn out to be fights involving epithets rather than "hard core" ideologically driven violence by people identified with extremist groups or causes. Because the former are much more numerous than the latter, the numbers suggest a picture of American society as a conglomeration of clashing identity groups. Defining the prejudice-motivated criminal as a group representative rather than as a lone outlaw transforms the social understanding of crime from aberrant and deviant behavior into the kind of sociopolitical conflict among broad social groupings that marks the current situation in the former Yugoslavia. . . .
Hate crime cannot be accurately counted because, given the ambiguous, subjective, and contentious concept of prejudice, it cannot be accurately defined. Anything like an accurate accounting is also doomed by the difficulty of reliably determining the motivation of individual and group offenders.
The FBI's annual reports, produced pursuant to the Hate Crime Statistics Act of 1990, have been fragmentary, nonuniform, and distortive. They have shed much more heat than light. Clearly, they have not contributed to a more accurate understanding of crime, prejudice, or prejudice-motivated crime in American society; nor have these reports laid the basis for more effective law enforcement. If anything, some journalists, advocacy groups, and academics have used this government-sponsored hate crime accounting system to create the false impression that the nation is experiencing an epidemic of prejudice-motivated crime of every kind. Then pundits and commentators claim that the statistics only represent the tip of the iceberg, that is, they indicate massive prejudice among the vast majority of law-abiding citizens. Some writers find in the statistics evidence of an imminent race war. . . .
We do not believe that crimes motivated by hate invariably are morally worse or lead to more severe consequences for victims than the same criminal act prompted by other motivations. Of course, assassinations and firebombings rooted in prejudice and hate deserve the severest punishments, but so do all assassinations and firebombings. Generic criminal and sentencing laws provide draconian penalties, including the death penalty in some jurisdictions, for murder, terrorism, and bombings. There is no need for, and sometimes no possibility of, more severe penalties when such terrible crimes are motivated by anti-Semitism, misogyny, or other prejudices. It certainly would be ironic if the consequence of the importation of the civil rights paradigm into criminal law was the execution of prejudiced murderers, some percentage of whom would be blacks and members of other minority groups.
We do not believe that across-the-board sentence enhancement for hate crimes can be justified. The breadth of the definition of hate crime means that the typical hate crime will not be a neo-Nazi assassination of a civil rights worker but, more likely, a fight in a campground or on a basketball court involving the utterance of a racist, sexist, or other bigoted epithet. Further, most crimes labeled as hate crime are committed by young people, a high percentage of them juveniles. *
To punish prejudiced offenders two or three times more severely than otherwise similarly situated offenders strains constitutional doctrine and violates principles of proportionality. Enhancing the criminal sentence because of the offender's prejudiced motivation is essentially punishing the offender for his beliefs and opinions. While we have no doubt that holding and acting on negative stereotypes and prejudiced beliefs is wrong and ought to be condemned, punishing an offender whose crime traces to such views twice or three times more severely than his fellow otherwise-motivated colleague in crime seems to us disproportionate punishment and a violation of the First Amendment.
-- Hate Crimes: Criminal Law and Identity Politics, by James Jacobs and Kimberly Potter, is in bookstores, and can be purchased from Oxford University Press.
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