An Insight into Hate Crime Legislation
October 2020 | Iris Diaz, Staff Writer/Editor
In 1998 at a local bar, a young Wyoming college student named Mathew Sheapard was approached by two men who pretended to be gay.[1] The two men offered Mathew a ride home, and drove him to a rural area.[2] They then proceeded to tie him up to a fence along the country road, and beat him to the point of crushing his skull.[3] Similarly, James Byrd Jr. was approached by three men who took him to a remote area where he was beaten severely and then tied by the ankles of a pickup truck where he was dragged for miles till his death.[4] These heinous murders where both not convicted as hate crimes, due to hate crime laws being nonexistent in the states Byrd and Shepard were murdered in. Also during the time the federal hate crime protections did not encompass “violent acts based on the victim’s sexual orientation and only covered racial violence against those engaged in a federally protected activity, such as voting or attending school.”
The Title I of the Civil Rights Act of 1968, was the first hate crime law, which defined the behavior of a hate crime as “to use, or threaten to use, force to willfully interfere with any person because of race, color, religion, or national origin and because the person is participating in a federally protected activity, such as public education, employment, jury service, travel, or the enjoyment of public accommodations, or helping another person to do so.”[5] In 2009 the “Mathew Shepard and James Byrd Jr. Hate Crimes Prevention Act” was passed, which extended the “federal hate crime prohibitions” to include hate crimes motivated by the victim’s gender identity, actual or perceived sexual orientation, and disability of the individual.[6] Even though the behavior of a hate crime has been defined, each state reserves the right to construct its own definition of a hate crime, choose to implement hate crime laws or not, and what parts of an individual's identity they will protect. This discretion does not allow for universal hate crime law implementation, which means these crimes can slip through the cracks and damage society. Thus, hate crime laws in states should be implemented and improved.
In the United States, some states have implemented hate crime laws, while others have not. Arkansas, Wyoming, and South Carolina are the only three states who are without hate crime legislation.[7] Of the states that have implemented hate crime laws, many laws do not protect every aspect of an individual's identity. People have been and still are being terrorized for their religion, sexuality, gender, disability, race, political views, etc. Moreover, since every state has the ability to establish its own hate crime laws, states can decide what kinds of hate crimes they protect. For example, South Carolina only criminalizes crimes related to religious worship or political affiliation.[8] Another example of this would be Oklahoma; this state only considers hate crimes as those that include race, religion, or ethnicity. Situations like these emphasize that hate crime laws have gaps that make them less successful in providing the best protection for the people.
Hate crimes can easily be mistaken to be hate incidents. The foundation of classifying a criminal case as a hate crime are hate incidents; however, hate incidents alone without a crime are not identified as a hate crime.[9] Hate incidents involve pejorative speech, discriminatory speech, and humiliating behavior. This includes racial slurs, name-calling, threatening, etc. Hateful speech in itself is not punishable, due to the First Amendment that gives the right to freedom speech. However, the hate incidents that occur will aid an individual who wants to classify a crime as a hate crime. For example, if murder has been commited against an individual for their sexual orientation, the prosecutor will have to find hate incidents that occured prior to the murder to be able to classify the murder case a hate crime. These hate incidents can include incidents where the offender was perhaps threatening or using discriminatory speech towards the victim. Hate crimes have been around for thousands of years, but they have never been directly addressed until some laws were passed.
Despite the gaps, various state and federal legislations on hate crimes have been passed. These legislations have helped the community and have produced penalties towards crimes motivated by hate. One of these acts was the Violence Against Women Act of 1994. This act was the first law that addressed domestic violence and rape, and it included “federal civil remedy for victims of gender-based violent crimes.”[10] The Church Arson Prevention Act of 1996 aided prosecution that racially motivated “desecration of houses of worship” and arson.[11] In 1994, the Hate Crimes Sentencing Enhancement Act stated that if a federal crime involved a hate-influenced attack, then the prison term for the perpetrator would be lengthened by a third as punishment.[12] All of these acts have taken steps toward combating hate crimes; nonetheless, there are many issues with current hate crime laws.
In the United States, many states fail to report hate crimes even though they have implemented hate crime laws. In 2017, the Federal Bureau of Investigation (FBI) reported having “more than 7,100 hate crime incidents” for that year, hate crime incidents here referring to actual hate crimes.[13] However, a hate crimes survey conducted in 2017 by the Bureau of Justices Statistics estimated that 250,000 hate crimes occur per year.[14] This disparity exists because the system of reporting hate crimes operates by the “local police sending hate crime data to state agencies, who then submit the data to the FBI.”[15] Police departments at times do not investigate and track hate crimes, and victims of these crimes have come forward saying that police sometimes lack the knowledge to make a police report regarding a hate crime or even refuse to make one.[16] This problem can be partially attributed to the fact that only a dozen states require the police academies to include hate crime training.[17] Therefore, police are not able to execute effectively when tracking hate crimes.
Moreover, hate crimes are difficult to prosecute. It involves a long complicated process that can take years, specifically because of the burden of proof for these cases. Benjamin Wagner, former U.S. Attorney for California’s Eastern District, explained that in order to prosecute, “you need to prove not just the incident, but the state of mind of the defendant...that what they intended was hate-motivated”, which includes critically examining the defendants background. The high burden of proof and lengthy probing process results in grim prospects for hate crime prosecutions. In a study directed by ProPublica, a newsroom non-profit organization, it was “found that of the nearly 1,000 hate crime cases reported to police in Texas from 2010 to 2015, fewer than 10 were successfully prosecuted.”[18]
Opponents of the implementation and enforcement of hate crime laws argue that hate crime laws violate an individual's constitutional rights. Under the First Amendment, the people are granted the right to freedom of speech. Critics argue this because, through the investigation of a hate crime, the prosecutor must find evidence that proves a hateful motive to commit the crime. Thus, any evidence they use against a defendant will violate their constitutional right to freedom of speech. However, the Supreme Court through the Wisconsin and Mitchell case established that “evidentiary use of speech to establish the elements of a crime or to prove motive or intent" is permitted.[19] Through this statement, the Supreme Court has expressed that an individual is granted the right to freedom of speech up until a crime is committed based on fostered beliefs. Once they commit a crime, “they surrender their First Amendment rights.”[20]
Along with this, critics also argue that prison time will not eradicate the fostered prejudices of a criminal. In fact, it has been pointed out by some social psychologists that by punishing these individuals, an illusion is being created that the problem is being dealt with. In reality, though, the problem lies in an individual’s thoughts and beliefs, which will not be miraculously changed in prison.[21] However, this problem can be solved by improving hate crime laws. In the improvement of these laws, meetings can be scheduled for those participating in these crimes. These meetings will educate hate crime participants about diversity and reasons as to why they should respect and accept everyone.
Overall, hate crime laws are essential to protect the community. States who have yet to pass hate crime laws and those who need to expand on their laws should do so immediately. By incorporating these laws, victims of hate crimes will feel much safer. Advocates of hate crime legislation claim that the implementation of these laws sends the message of zero tolerance for discrimination.[22] Additionally, the states who have hate crime laws should also strengthen their laws by providing police officers the training needed to adequately track and investigate hate crimes. These laws should also incorporate meetings in jail for hate crime perpetrators, so they can become educated about diversity and understand why they should accept and respect all people. Through the inclusion of these meetings, the participants will be faced with a constructive opportunity to change their ideologies and behavior. Not only should these meetings be incorporated in jail, but also within the community, such as in jobs and schools. Finally, people of the community who want to see a change should take initiative by nurturing future generations with positive outlooks on diversity. Teaching kids to be appreciative and respectful towards others’ cultures will help keep the future generations from fostering prejudicial thoughts and engaging in hateful behavior.
Sources
Courtesy of Eric S. Dreiband and Courtesy of Katharine T. Sullivan, “Commemorating the Fourth Anniversary of the Shepard-Byrd Hate Crime Prevention Act,” April 7, 2017.
Ibid.
Ibid.
Ibid.
“Hate Crime Laws.” The United States Department of Justice, March 7, 2019.
Ibid.
“STATE-BY-STATE HATE CRIME LAWS.” Washington: National Association for the Advancement of Colored People, 2017.
Ibid.
Vera Institute of Justice. “Bias Crime Assessment: A Tool and Guidelines for Law Enforcement and Concerned Communities.” National Criminal Justice Reference Service, August 2018.
“BRIA 10 3 a Should Hate Be Outlawed?” Constitutional Rights Foundation. Accessed September 23, 2020.
Ibid.
Ibid.
Glickhouse, Rachel. “5 Things You Need to Know About Hate Crimes in America.” ProPublica, March 22, 2019.
Ibid.
Ibid.
Ibid.
Ibid.
Schwencke, Ken. “Why America Fails at Gathering Hate Crime Statistics.” ProPublica, December 4, 2017.
“Do Hate-Crime Laws Restrict First Amendment Rights?” 2020.
Ibid.
Ibid.
Ibid.