Hate Crimes

A hate crime is a serious criminal charge in the United States. There are federal hate crime laws and most states have their own as well. There are some minor differences amongst the various laws, but, for the most part, they work the same way. From time to time a hate crime reaches the public spotlight. When that happens there is always some amount of opposition for having a special classification for hate crimes. I used to fall into this line of thinking myself, but that was because I did not understand what a hate crime really was.

There is a classic episode of South Park entitled “Cartman’s Silly Hate Crime 2000”. I think South Park’s social commentary, especially with the older episodes, is usually right on. This time, however, they were way off. In the episode Cartman is charged with a hate crime and the boys argue against his punishment. They lay out a series of straw man and red herring arguments and display an unusual level of misunderstanding surrounding the topic. In this post I’ll address those arguments, and a few others, and explain what hate crimes really are and are not and why we have them.

The first misconception is that hate crimes criminalize thought. That is not what is happening at all. A hate crime is not its own crime someone can be charged with because they hold a particular belief. A hate crime is more of a modifier applied to another crime that is committed. The base crime can pretty much be anything where there is a victim, and they range from vandalism to murder. So, in order to be charged with a hate crime you have to have committed another crime.

The next misconception is that the hate crimes are somehow punishing the emotion and feeling of the criminal. It can be a little confusing because the title of the crime has the word “hate” in it, and hate is an emotion. However, there is a difference between the literal definition of the word used in the title and the legal definition of the crime. One does not actually have to hate the victim or the larger group to which they belong to be charged with a hate crime. To qualify for a hate crime one simply has to target their victim based on them belonging to a particular, recognized group. An example I’ve seen that I think demonstrates this well is when someone targets disabled people because they think they will be easier targets. The defendant does not have to hate all disabled people, but because they are selecting their victims from a particular, recognized group it could be considered a hate crime.

Another misconception is that hate crimes are punishing the criminal’s motivation. While the prosecution will use the defendant’s motivation to determine charges, it is really the intent of the crime that warrants an elevated punishment. The concept of intent determining punishment is not unique to hate crimes or even uncommon in criminal justice. A more commonly understood example of intent would be assault and battery vs. attempted murder. If you beat someone up, that is assault and battery. If you were trying to kill them, however, that is attempted murder; a much more serious crime.

Another good example of intent is murder itself. Murder is generally further broken down into subcategories based on intent. There is third degree murder, otherwise known as manslaughter, which is accidental death. Someone was the cause of someone else’s death, but it was unintentional. In these cases there typically needs to be some amount of negligence for criminal charges to even be brought. Otherwise, it is just a terrible accident. Then there is second degree murder which is sometimes called a crime of passion. With second degree murder there was intent to kill, but it was a spur of the moment decision by the criminal. Then there is first degree murder which is also known as premeditated murder. This is the worst of the three murder subcategories, because the criminal had time to consider their actions. They intentionally planned for the murder. With all of these examples the physical impact on the victim may be the same, but the intent of the criminal greatly impacts the severity of the crime.

What is it about the intent of a crime that makes an otherwise ordinary crime a hate crime? In addition to harming the victim, the hate crime has the intent of intimidating, subjugating, threatening, or otherwise terrorizing the group to which the victim belongs. That action has a greater societal impact than the same crime without that intent and warrants a proportionate punishment. In the words of Chief Justice Rehnquist, “This conduct is thought to inflict greater individual and societal harm… bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest… The State’s desire to redress these perceived harms provides an adequate explanation for its penalty enhancement provision over and above mere disagreement with offenders’ beliefs or biases.”

I’ve also heard the argument that having legal classification of groups further divides us. I think it is actually exactly the opposite. Acknowledging that classifications of people exist is not, in and of itself, divisive. The hate crime, in contrast, is an overt and explicit attempt to divide us. The hate crime law rejects such unjust actions and says that we know what you are doing, and we will stand together in direct opposition to such division.

A relatively recent, and incredibly clear, example of a hate crime is the Charleston church shooting. On June 17^th, 2015 a 21-year-old man murdered nine people at the Emanuel AME Church in Charleston, South Carolina. The victims were: Cynthia Marie Graham Hurd, Susie Jackson, Ethel Lee Lance, Depayne Middleton, Clementa C. Pinckney, Tywanza Sanders, Daniel Simmons, Sharonda Coleman-Singleton, and Myra Thompson. The victims were targeted because of their race. In this case the perpetrator was white and the nine victims were black. The perpetrator was a white supremist whose admitted intent was to start a race war. I think it’s easy to see how the affect of crimes such as these reach far beyond their immediate victims, and that makes them more severe. I think it is important to note that South Carolina is one of the few states without hate crime laws, so this criminal’s hate crime conviction came from a federal court.

Another state without hate crime laws is Georgia. On July 25^th, 2015 a gang of truck driving racists crashed an 8-year-old’s birthday party. They shouted racial slurs and threatened to kill the party’s attendees, even the children. These perpetrators were white and they targeted the gathering because the party attendees were black. Additionally, this gang had been driving all over town threatening other people because of their race. One couple in the gang brandished a loaded shotgun; it was this pair that was convicted of the most serious crimes. Since Georgia does not have hate crime laws, they were convicted of making terrorist threats, among other things, and harshly sentenced.

The Georgia case is interesting to me, because they were able to proportionately punish these crimes without using a hate crime statute. There really is not that much difference between hate crimes and terrorism. Both seek to spread fear amongst a community, but there is a subtle, yet defining, difference. A terrorist uses indiscriminate violence in order to achieve political or ideological goals. A perpetrator of a hate crime uses explicitly discriminate violence targeted against a subset of a community in order to achieve social goals. Both of these crimes have a greater affect on society than they would otherwise have without these additional intentions, but I do not see a problem with differentiating them legally.

If you are a racist, white person you might be irritated right now because both of my case examples were white on black hate crimes. I assure you that that is just a coincidence. I chose the first example because the intent was very clear. I wanted to illustrate the difference between a regular, terrible mass murder, and a mass murder attempting to start a war. The second example was chosen to introduce the difference between terrorism and hate crimes. It doesn’t really matter, within the context of understanding hate crime laws, which group is perpetrating violence against which other group. There are cases going every which way, and, as far as I can tell, there is not even a restriction for being charged with a hate crime against a group to which the perpetrator also belongs. If it makes you feel any better, the Opinion of the Court I referenced when quoting Chief Justice Rehnquist was from a black on white hate crime.

Now let’s go back to that episode of South Park. Even though the writers displayed significant ignorance about hate crimes, they inadvertently stumbled upon a real problem. That problem is prosecutors charging defendants with crimes that they didn’t commit. In the episode Cartman, who is white, was charged with a hate crime for hitting his schoolmate Token, who is black, with a rock. Token was not targeted because of his race and Cartman had no intent to intimidate or threaten the larger black community of South Park. This fictional crime shouldn’t have even been a hate crime. It is important to remember that evidence of bigoted beliefs and even expressing those beliefs during the crime does not necessarily warrant a hate crime enhancement. Intent is difficult to prove, but that is the responsibility of the prosecution. If proof of intent beyond a reasonable doubt for a hate crime charge is not presented, just like any other criminal accusation, the defendant should be found not guilty.

The occasional tendency of prosecutors to “make an example” of particularly despicable defendants and overcharge them can happen. If someone wanted to craft an argument against hate crime laws I’m sure they could find examples of overly zealous prosecutors achieving hate crime convictions with dubious evidence of intent. However, this problem is not unique to hate crimes. For example, in California a DUI fatality can lead to a second degree murder charge. While it is rare, every once in a while a negligent accident will be charged as murder with intent just because we really hate drunk driving in California. Unless there was some crazy “Death Proof” stuff going on in the case, it should be charged as negligent vehicular manslaughter. Charging criminals with crimes that they did not commit is not serving justice to anyone. We should not be doing that with hate crimes or with any other crimes.

All that said, there is a grave problem with our implementation of hate crime laws. I mentioned earlier that a hate crime enhancement is applied only when the victim is targeted because they are member of a particular, recognized group. That is the problem. The federal law and each state variation all list out categories that qualify for a hate crime enhancement. These are demographic categories such as religion, race, gender, sexual orientation, nationality, age, etc. Typically these categories are chosen based on historical criminal behavior. In other words, race is on the list because race has been a target in the past.

Limiting the application of hate crime enhancements takes the focus away from the intent and puts it on protecting a particular group. We should all be aware that the Constitution of the United States guarantees us all equal protection under the law. Don’t get me wrong, there are absolutely groups that are disproportionately targeted. However, every person has the right to not be harassed, intimidated and terrorized by criminal acts against their peers. When laws are written to, or even merely perceived to, protect only a subset of the people they are not as good as they should be. Additionally, opponents of hate crime laws point to the unequal protection of hate crime laws as a reason not to have them at all. Without this flaw, there isn’t much real argument against hate crimes.

The other obvious consequence of this limitation is that it fails to serve its intended purpose. It is not possible for legislature to predict with perfect accuracy which groups will be targeted in the future, and it is entirely possible they purposely include or exclude groups based on their own bias. The result is that legitimate hate crimes go unpunished. We see this most recently with hate crimes against homosexual and transgender people. Many states have not added sexual orientation and gender identity to their list of recognized groups. It does not matter how clear the intent of the perpetrator is or how large of a community was being terrorized. If the group is not on the list, then the crime may not be charged with a hate crime enhancement.

Fortunately, the fix for this is simple. Across the board eliminate the recognized group requirement and simply require the intent to affect the community beyond the direct victims in order to apply a hate crime enhancement. The same burden falls on the prosecution to prove the intent. The judge should be given discretion to apply the enhanced penalty proportionate to the societal impact of the crime. This way everyone is protected equally, and the statute naturally extends over time as communities evolve.

The next time you hear about a hate crime, resist the urge to immediately pick a side based on your political ideology. Instead, review the evidence the prosecution and defense provide in the case and decide for you whether or not the intent of the perpetrator and affect of the crime goes beyond the immediate victim. Remember that, ultimately, for justice to be served, the punishment should fit the crime.