The Negative Ramifications of Hate Crime Legislation: It’s Time to Reevaluate Whether Hate Crime Laws are Beneficial to Society

Pace Law Review Pace Law Review

Volume 37

Issue 1

Fall 2016

Article 9

March 2017

The Negative Rami?cations of Hate Crime Legislation: It’s Time to The Negative Rami?cations of Hate Crime Legislation: It’s Time to

Reevaluate Whether Hate Crime Laws are Bene?cial to Society Reevaluate Whether Hate Crime Laws are Bene?cial to Society

Briana Alongi

Elisabeth Haub School of Law at Pace University

, balongi@law.pace.edu

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Recommended Citation Recommended Citation

Briana Alongi,

The Negative Rami?cations of Hate Crime Legislation: It’s Time to Reevaluate

Whether Hate Crime Laws are Bene?cial to Society

, 37 Pace L. Rev. 326 (2017)

DOI: https://doi.org/10.58948/2331-3528.1941

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326

The Negative Ramifications of

Hate Crime Legislation: It’s Time

to Reevaluate Whether Hate

Crime Laws are Beneficial to

Society

Briana Alongi

I. Introduction

Supporters of hate crime legislation suggest that the

primary reason for the codification of hate crime laws is “to

send a strong message of tolerance and equality, signaling to

all members of society that hatred and prejudice on the basis of

identity will be punished with extra severity.”

However, hate

crime laws may actually be accomplishing the opposite effect of

tolerance and equality because they encourage U.S. citizens to

view themselves, not as members of our society, but as

members of a protected group. The enactment of hate crime

legislation at the federal and state levels has led to unintended

consequences and unfair practices. Today, the controversy

regarding the effectiveness of hate crime laws is debated, and

people question whether this type of legislation is beneficial to

society.

This article will candidly reevaluate hate crime legislation.

Part II will provide the definition of the term “hate crime” and

the theoretical justification for enhanced sentencing involving

discrimination-based conduct. Focus will be placed on data

* J.D. Candidate, May 2017, Elisabeth Haub School of Law at Pace

University. A special thank you to Lissa Griffin, Professor of Law at Pace

Law School and expert in criminal procedure and comparative criminal

procedure, for her knowledge, support, and guidance with my upper level

writing requirement. Also, thank you to Michael Soliman, Tim O’Hara, and

my fellow members of Pace Law Review for their assistance and feedback.

1. Avlana Eisenberg, Expressive Enforcement, 61

UCLA L. REV. 858, 860

(2014).

2016 HATE CRIME LEGISLATION 327

that disproves the theory that hate crime laws reduce or deter

future hate crimes. It will also explain the underlying reasons

for the enactment of hate crime laws, such as the media’s role

and political influences, and it will present several of the

misconceptions associated with hate crime legislation. Part III

will present the unintended consequences associated with the

enactment of hate crime statutes, including constitutional

violations. It will also explain why hate crimes are rarely

prosecuted, and will focus on the inconsistency, redundancy,

and arbitrary usage/application of hate crime legislation. Part

III will also present an individual’s response to the negative,

unintended effects of hate crime legislation. Part IV will

determine that hate crime legislation is not cost-effective. Part

V sets forth a recommendation on improving community efforts

to educate or reeducate citizens on respecting diversity.

Finally, the article analyzes hate crime laws from supporting

and opposing viewpoints and concludes that there is no need to

separate hate crimes from other types of crimes as a means to

promote a more tolerant, equal, and stable society.

II. Understanding Hate Crime Legislation

In the United States, hate crime legislation has gained

popularity at both the federal and state levels. Oregon was the

first state to codify hate crime laws in 1981.

Currently, forty-

five states and the District of Columbia have enacted some

form of hate crime legislation; Arkansas, Georgia, Indiana,

South Carolina, and Wyoming are the five states that have not

enacted hate crime statutes.

“In its broadest sense, the term

[hate crime] refers to an attack on an individual or his or her

property (e.g., vandalism, arson, assault, murder) in which the

victim is intentionally selected because of his or her race, color,

religion, national origin, gender, disability, or sexual

2. James Morsch, Comment, The Problem of Motive in Hate Crimes: The

Argument Against Presumptions of Racial Motivation, 82 J. C

RIM. L. &

CRIMINOLOGY 659, 663 (1991).

3. United States v. Cannon, 750 F.3d 492, 510 n.3 (5th Cir. 2014)

(quoting H.R.

REP. NO. 111-86, pt. 1, at 5-6 (2009)); State Laws,

USL

EGAL.COM, http://hatecrimes.uslegal.com/state-laws/ (last visited Oct. 17,

2016).

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328 PACE LAW REVIEW Vol. 37:1

orientation.”

Federal and state laws define the conduct that

constitutes hate crimes; however, the definition of hate crimes

differs from state to state, especially in regard to the different

groups of people protected under these laws.

The scope of hate crime legislation expanded on October

28, 2009, when President Obama signed the Matthew Shepard

and James Byrd, Jr., Hate Crimes Prevention Act.

This new

legislation broadened the definition of hate crimes that can be

prosecuted federally to include crimes motivated by a victim’s

“actual or perceived race, color, religion, or national origin,”

a victim’s “actual or perceived religion, national origin, gender,

sexual orientation, gender identity, or disability.”

Prior to the

Shepard and Byrd Hate Crimes Prevention Act, federal law

defined hate crimes as those motivated only by the victim’s

race, national origin or religion.

Hate crime legislation at the federal and state level also

provides enhanced penalties for perpetrators who commit hate

crimes.

This type of legislation illustrates the harshness and

severity associated with hate crime enhanced penalties.

For

example, in New York, a person convicted of assault in the

second degree, a class D felony, can be sentenced to up to seven

years in prison.

If the conviction is recorded as a hate crime,

the charge may be increased to a class C felony, in which the

4. Preventing Youth Hate Crime, U.S. DEP’T OF EDUC.,

http://www2.ed.gov/pubs/HateCrime/start.html (last visited Oct. 18, 2016).

5. N

AT’L CRIME VICTIMS' RIGHTS WEEK, HATE AND BIAS CRIME 40 (2015),

http://victimsofcrime.org/docs/default-

source/ncvrw2015/2015ncvrw_stats_hatecrime.pdf?sfvrsn=2 [hereinafter

ATE AND BIAS CRIME].

6. The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention

Act, 18 U.S.C. § 249 (2012).

7. 18 U.S.C. § 249(a)(1).

8. § 249(a)(2).

9. Hate Crimes Law, HUMAN RIGHTS CAMPAIGN,

http://www.hrc.org/resources/hate-crimes-law (last visited Oct. 18, 2016).

10. Combating Hate: Hate Crimes Law, A

NTI-DEFAMATION LEAGUE,

http://www.adl.org/combating-hate/hate-crimes-law/ (last visited Oct. 18,

2016).

11. Michael Bronski et al., Hate Crime Laws Don’t Prevent Violence

Against LGBT People, T

HE NATION (Oct. 2, 2013),

http://www.thenation.com/article/hate-crime-laws-dont-prevent-violence-

against-lgbt-people/.

12. N.Y.

PENAL LAW § 70.00(2)(d) (2009).

2016 HATE CRIME LEGISLATION 329

offender can be sentenced for up to fifteen years in prison.

Enhanced penalties exist at the federal and state level

because these types of crimes are considered to hurt entire

communities, “not just the actual victim and the family and

friends of the victim . . . .”

For example, proponents believe

that when a person is victimized because of his or her color,

race, religion, natural origin, gender, sexual orientation,

gender identity, or disability, all of the members of that group

“feel like potential targets and experience a shared sense of

persecution.”

In addition, proponents argue that hate crimes

should be considered more serious than conventional crimes

because these crimes attack the “victim not only physically but

at the [sic] core of his identity.”

Proponents also believe that

perpetrators are deserving of harsher treatment because

studies show that hate crimes “cause greater psychological

trauma to their immediate victims than do otherwise-

motivated crimes.”

In theory, enhanced punishments are also

needed because they deter potential offenders of hate crimes,

thereby promoting public safety and decreasing hate crime

rates.

A. Underlying Reasons for the Enactment of Hate

Crime Legislation

1. The Media’s Role

It has been argued that the media bears responsibility for

the proliferation of hate crime legislation because the media

appears to reinforce and amplify an alleged “epidemic” of hate

13. § 70.00(2)(c).

14. Matthew Shepard Hate Crimes Prevention Act, S. 909, 111th Cong.

(2009) (as passed by Senate, Oct. 22, 2009),

https://www.truthtellers.org/alerts/s909text.html.

15. M

ICHAEL SHIVELY, STUDY OF LITERATURE AND LEGISLATION OF HATE

CRIME IN AMERICA 34 (2005),

https://www.ncjrs.gov/pdffiles1/nij/grants/210300.pdf.

16. Heidi M. Hurd & Michael S. Moore, Punishing Hatred and Prejudice,

56 S

TAN. L. REV. 1081, 1087 (2004) (quoting FREDERICK M. LAWRENCE,

PUNISHING HATE 14 (1999)).

17. Hurd & Moore, supra note 16, at 1087.

18. Eisenberg, supra note 1, at 877.

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330 PACE LAW REVIEW Vol. 37:1

crimes in America.

Because inter-group conflicts are more

newsworthy than inter-group cooperation, the media seems

“almost enthusiastic in presuming the worst about the state of

inter-group relationships in American society.”

The media

continues to grab the attention of viewers with headlines such

as “A Cancer of Hatred Afflicts America,”

“Rise in Hate

Crimes Signals Alarming Resurgence of Bigotry,”

“Decade

Ended in Blaze of Hate,”

or “Members of White Supremacist

Group Charged in Hate Crime.”

However, the media fails to inform the public that the

majority of crime in the United States is intra-racial, not inter-

racial.

This is evidenced by the fact that “[e]ighty percent of

violent crimes involve an offender and victim of the same race.

Ninety-two percent of black murder victims and 66.6 percent of

white murder victims are killed by murderers of the same

race.”

Because most crimes involve perpetrators and victims

of the same racial group, critics question the need for hate

crime legislation.

Critics also believe that the passage of hate

crime legislation is a political response to bias-motivated

crimes that are highly publicized in the media.

The media

fails to determine the legitimacy of hate crime cases before

broadcasting them; the media is responsible for reporting

19. See James B. Jacobs & Jessica S. Henry, The Social Construction of

a Hate Crime Epidemic, 86 J.

CRIM. L. & CRIMINOLOGY 366, 371 (1996).

20.Id.

21. JAMES B. JACOBS & KIMBERLY POTTER, HATE CRIMES: CRIMINAL LAW &

IDENTITY POLITICS 50 (1998).

22.Id.

23.Id.

24. Members of White Supremacist Group Charged in Hate Crime, F

ED.

BUREAU INVESTIGATION (Dec. 18, 2012),

https://archives.fbi.gov/archives/newark/press-releases/2012/members-of-

white-supremacist-group-charged-in-hate-crime.

25. Richard Dooling, Good Politics, Bad Law, N.Y. TIMES (July 28, 1998),

https://www.nytimes.com/books/98/07

/26/reviews/980726.26doolint.html (reviewing J

ACOBS & POTTER, supra note

21).

26.Id.

27.Id.

28. Brian Powell, Fox News’ Racial Crime Coverage is Hurting People,

EDIA MATTERS FOR AM. (Aug. 23, 2013, 4:35 PM),

http://mediamatters.org/blog/2013/08/23/fox-news-racial-crime-coverage-is-

hurting-peopl/195567.

2016 HATE CRIME LEGISLATION 331

alleged claims of hate crimes that have turned out to be

hoaxes.

Recently, these hoaxes have been evidenced in

several cases across the country:

 In 2015, a gay business owner was found to be

responsible for burning down his own bar, but

claimed that he was a victim of “sexual

orientation”;

 In 2015, a lesbian couple burned down their own

home and attempted to blame the neighbors for

spray painting “anti-gay slurs” on their home before

burning it down;

and

 In 2012, a lesbian “mutilated herself with anti-gay

slurs, faked a kidnapping story and burnt her house

down in a hate crime hoax that garnered national

attention.”

It is argued that by not distinguishing which hate crimes

are real and which are not, the media becomes a tool in which

liberal activists’ hoaxes are being aired to further their

agendas.

2. Politics

Proponents claim that hate crime legislation exists to

promote tolerance and equality in our society, but many

opponents believe the enforcement of hate crime statutes may

be based on political motives.

For example, politicians may

support hate crime laws so they can appear tough on crime but

also be supportive of gay rights.

Some politicians also

support hate crime laws because that support may provide

them with campaign funds and votes from powerful interest

29. Kristine Marsh, Fake Hate: 9 False Discrimination Stories the Media

Ran With, MRC

NEWSBUSTERS (Aug. 10, 2015, 11:06 AM),

http://www.newsbusters.org/blogs/culture/kristine-marsh/2015/08/10/fake-

hate-9-false-discrimination-stories-media-ran.

30.Id.

31.Id.

32.Id.

33.Id.

34. Eisenberg, supra note 1, at 881, 887.

35. See Gregory R. Nearpass, Comment, The Overlooked Constitutional

Objection and Practical Concerns to Penalty-Enhancement Provisions of Hate

Crime Legislation, 66 A

LB. L. REV. 547 (2003).

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332 PACE LAW REVIEW Vol. 37:1

groups who are lobbying for hate crime legislation.

In addition, having candid discussions about hate crime

legislation is difficult because politicians who criticize hate

crime legislation are faced with “a form of political suicide.”

For example, opponents of hate crime laws are usually

“pigeonholed and labeled [as] . . . racists, skinheads, or gay-

bashers.”

In general, if one wants to succeed in politics, anti-

hate crime discussions or criticisms are stifled and frowned

upon. Ultimately, critics of hate crime legislation state that

there is evidence to support the concept that “the special

attention given to certain groups of individuals is perceived as

political correctness rather than a legitimate extension of

established legal principles.”

B. Misconceptions

1. Presumption that Hate Groups Cause Hate Crimes

is Unfounded

In an attempt to understand hate crimes, attention is

placed on hate groups because proponents of hate crime

legislation are under the popular assumption that hate groups

commit hate crimes. The misconception that hate groups,

which include skinheads, neo-Nazis, white nationalists and

black separatists groups,

cause hate crimes is unfounded.

This is evidenced by an empirical study that was conducted to

determine the relationship between hate groups and hate

crimes; this research consisted of tracking and measuring hate

groups and hate crime between 2002 and 2008 by using data

from forty-nine states in the United States and the District of

Columbia.

The results showed that the number of hate

36.See Sara Sun Beale, Federalizing Hate Crimes: Symbolic Politics,

Expressive Law, or Tool for Criminal Enforcement?, 80 B.U.

L. REV. 1227,

1248 (2000).

37. Nearpass, supra note 35, at 554.

38.Id.

39. S

HIVELY, supra note 15, at 37.

40. Stephanie Chan, Growing Hate Groups Blame Obama, Economy,

CNN (Feb. 26, 2009, 7:34 PM),

http://www.cnn.com/2009/US/02/26/hate.groups.report/index.html.

41. Matt E. Ryan & Peter T. Leeson, Hate Groups and Hate Crime,

INT’L REV. L. & ECON. 256, 257 (2011).

2016 HATE CRIME LEGISLATION 333

groups increased by 25%, while the number of hate crimes did

not increase.

This research concludes that there is not a

strong connection between hate groups and hate crimes; hate

groups do not necessarily lead to hate crimes. When analyzing

scientific studies, it is always important to remember that a

correlation

does not prove causation.

Thus, groups may

have a correlational relationship with hate crimes but not a

causal relationship.

Other variables besides hate may be the reason for hate

crimes, including religion, education, and income levels.

Economists Matt E. Ryan and Peter T. Leeson focus on the

frustration-aggression thesis, which states that “when people

endure economic hardship they get frustrated [and] . . . take

their frustration out on vulnerable social groups, such as racial,

sexual, and religious minorities.”

Ultimately, there is a

significant connection between hate crime and poor economic

conditions, such as poverty and unemployment.

2. Public Support for Hate Crime Legislation is not

Universal

A candid focus must also be placed on the public’s view of

hate crime legislation. Many people agree that violent hate

crimes, such as the horrific deaths of James Byrd Jr. and

Matthew Shepard, are deplorable.

However, the public also

has concerns with certain provisions of hate crime legislation.

42.Id.

43. Correlation, B

LACK’S LAW DICTIONARY (10th ed. 2014) (defined as “[a]

connection between two ideas, facts, phenomena, etc., esp. when one may be

the cause of the other”).

44.Causation, BLACK’S LAW DICTIONARY (10th ed. 2014) (defined as

“[t]he causing or producing of an effect”).

45. Richard Florida, The Geography of Hate, T

HE ATLANTIC (May 11,

2011), http://www.theatlantic.com/

national/archive/2011/05/the-geography-of-hate/238708/.

46. Ryan & Leeson, supra note 41, at 256. See Christopher Ingraham,

The Ugly Truth About Hate Crimes -- In 5 Charts and Maps, W

ASH. POST:

WONKBLOG (June 18, 2015),

https://www.washingtonpost.com/news/wonk/wp/2015/06/18/5-charts-show-

the-stubborn-persistence-of-american-hate-crime.

47.See Bill Dobbs, Justice, Not Vengeance, for Hate Crimes, N.Y.

TIMES

(Apr. 16, 2012, 10:53 AM),

http://www.nytimes.com/roomfordebate/2012/03/07/are-hate-crime-laws-

necessary/justice-not-vengeance-for-hate-crimes.

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334 PACE LAW REVIEW Vol. 37:1

Primarily, there is no national consensus favoring this

legislation because many individuals believe that hate crimes

should not be classified as a separate class of crime.

addition, research has shown that there are many people who

are opposed to hate crime laws because they violate

constitutional rights.

Also, in a survey conducted by Steen

and Cohen, 1,300 out of 2000 American adults had minimal

support for the hate crime enhanced penalty provisions.

Steen and Cohen’s survey also proved that even though some of

those sampled did show support for hate crime legislation,

these same people also believed that “decisions about

appropriate punishment for specific instances of crime are

based primarily on [the] seriousness of the offense, and not on

whether the offender was motivated by hate or bias.”

Therefore, researchers suggest that additional research should

be examined because, as witnessed in Steen and Cohen’s

survey, “support for hate crime may be more complex than is

reflected by discrete item responses to opinion polls.”

Moreover, hate crime legislation lacks public support

because some groups of people who are protected under hate

crime statutes do not even support these laws. For example,

lesbian gay bisexual and transgender (LGBT) groups, such as

the Sylvia Rivera Law Project and Queers for Economic

Justice, do not support hate crime laws.

Like many critics,

they believe that hate crime laws are disproportionately used

against poor people and minorities, and while enhanced

sentences do not fix the problem of bias, they do create

“hardened criminals.”

The public is questioning the

ramifications and consequences of these laws.

III. Issues Associated with the Enactment of Hate

48. Michael Shively & Carrie F. Mulford, Hate Crime in America: The

Debate Continues, N

AT’L INST. OF JUST. (June 2007),

http://www.nij.gov/journals/257/pages/hate-crime.aspx.

49. Nearpass, supra note 35.

50. S

HIVELY, supra note 15, at 42.

51.Id.

52.Id.

53. Bronski et al., supra note 11.

54.Id.

55. Eisenberg, supra note 1, at 899-901.

2016 HATE CRIME LEGISLATION 335

Crime Legislation

A. Constitutionality of Hate Crime Statutes

Courts have found provisions of state hate crime statutes

unconstitutional due to vagueness.

For example, in Botts v.

State, defendants Christopher Botts and Angela Pisciotta were

charged with aggravated assault for beating up two African-

American men in Atlanta, Georgia.

Botts and Pisciotta were

charged with hate crimes and subsequently pled guilty, but

they appealed their enhanced sentences.

Georgia’s hate

crime law required enhanced penalties if a defendant was

found to have “intentionally selected any victim or any

property of the victim as the object of the offense because of

bias or prejudice . . . .”

In 2004, on appeal, the Georgia

Supreme Court found that the terms “bias or prejudice” were

too broad and vague because they did not specify religion,

gender, race, or color.

It was also found that a “statute which

either forbids or requires the doing of an act in terms so vague

that [persons] of common intelligence must necessarily guess at

its meaning and differ as to its application, violates the first

essential of due process of law.”

The Court unanimously

invalidated Georgia’s hate crime law and dismissed the

sentence enhancement, reducing their sentences from eight to

six years.

Vagueness is also evidenced in a more recent case, State v.

Pomianek, in which the defendant played a trick on Brodie, an

African-American co-worker, by locking him in a storage cage

while stating, “you throw a banana in the cage and he goes

right in . . . .”

The defendant was convicted of bias

56.See SHIVELY, supra note 15, at 40.

57. Botts v. State, 604 S.E.2d 512, 513 (Ga. 2004).

58.Id.

59. G

A. CODE ANN. § 17-10-17 (2000).

60. Botts, 604 S.E.2d at 513-14.

61.Id. (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)).

62. Botts, 604 S.E.2d at 515; Georgia Court Throws Out Hate Crimes

Law, USA TODAY (Oct. 25, 2004, 11:50 AM),

http://usatoday30.usatoday.com/news/nation/2004-10-25-ga-

hatecrimes_x.htm.

63. State v. Pomianek, 110 A.3d 841, 844 (N.J. 2015).

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336 PACE LAW REVIEW Vol. 37:1

harassment.

Interestingly, according to a provision of New

Jersey’s hate crime statute, a defendant may be guilty of bias

intimidation if “the victim . . . reasonably believed that . . . the

offense was committed with a purpose to intimidate the victim.

. . or . . . the victim . . . was selected to be the target of the

offense because of his race [or] color . . . .”

Section 2C:16-

1(a)(3) places focus on the victim’s state of mind, and not the

defendant’s state of mind.

The New Jersey Supreme Court

held that Section 2C:16-1(a)(3) was unconstitutional due to its

vagueness.

The Court stated that, when focus is “on the

victim’s perception and not the defendant’s intent, the statute

does not give a defendant sufficient guidance or notice on how

to conform to the law.”

The conviction was reversed.

Another controversial issue surrounding the

implementation of hate crime legislation is whether these laws

violate the First Amendment, the Double Jeopardy clause, or

Equal Protection rights.

The first constitutional concern is

that penalty enhancement provisions in hate crime legislation

violate an individual’s right against double jeopardy.

The

Double Jeopardy clause protects against multiple punishments

for the same offense and prohibits multiple prosecutions for the

same offense.

This is evidenced when a defendant is charged

and convicted of assault and his or her original sentence for

assault is enhanced because the prosecution has additionally

proved that the offender had the “specific intent to injure the

victim based on their protected status . . . .”

This defendant is

being dually punished, “once for his acts and again for his

intent behind the acts.”

Opponents of hate crime laws also argue that these laws

may raise constitutional problems because they punish not only

64.Id. at 843.

65. N.J.

STAT. ANN. § 2C:16-1(a)(3) (2008).

66. Pomianek, 110 A.3d at 850.

67.Id. at 843.

68.Id.

69.Id. at 856.

70. Nearpass, supra note 35, at 554-55.

71.Id. at 558.

72. See U.S.

CONST. amend. V.

73. Nearpass, supra note 35, at 562.

74.Id.

2016 HATE CRIME LEGISLATION 337

action, but also speech and thoughts or beliefs, in violation of

the First Amendment.

In Chaplinsky v. New Hampshire, the

court held that “fighting words” constitute a class of speech

that is not protected under the First Amendment.

The Court

defined “‘fighting’ words [as] - those which by their very

utterance inflict injury or tend to incite an immediate breach of

the peace.”

Extending the term “hate crime” to include words

uttered and thoughts expressed against a victim’s color, race,

religion, natural origin, gender, sexual orientation, gender

identity or disability is close to punishing speech and belief.

To punish individuals because of “bad political words expressed

during a crime, is to punish him extra because of the beliefs he

holds.”

As one critic has stated, “‘[t]he problem with hate

crime laws . . . is that in order to crack down on hateful

behavior, hateful thoughts and expression must also be

targeted, which runs diametrically counter to the First

Amendment’s protections for free speech and expression.’”

also stated that, “if the Constitution means anything, it means

that individuals have the right to speak freely, and even jest,

even when the speech is politically incorrect and should not be

penalized because others take offense.”

The argument is that

free speech is a vital part of our democracy, and that hate

crime statutes present a slippery slope; hate crime legislation

“unconstitutionally punishes speech that might cause offense

and criminalizes behavior regardless of a person’s intent to

cause intimidation or to act on the basis of improper bias.”

Opponents of hate crime laws argue that hate crime

legislation may also violate a person’s right to equal protection,

75. See U.S. CONST. amend. I.

76. Chaplinsky v. New Hampshire, 315 U.S. 568, 573 (1942).

77.Id. at 572.

78. See D

AVID KOPEL, INDEP. INST., HATE CRIME LAWS: DANGEROUS AND

DIVISIVE 8-9 (2003), http://www.davekopel.org/CJ/IP/Hate-Crimes.pdf.

79.Id. at 8.

80. Victory: In Unanimous Ruling, NJ Supreme Court Strikes Down

"Hate Crime" Statute Used to Prosecute State Worker for Joking with Black

Co-Worker, R

UTHERFORD INST. (Mar. 17, 2015),

https://www.rutherford.org/publications_resources/on_the_front_lines/victory

_in_unanimous_ruling_nj_

supreme_court_strikes_down_hate_crime_statue.

81.Id.

82.Id.

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338 PACE LAW REVIEW Vol. 37:1

which is protected under the Fourteenth Amendment.

When

applied, these hate crime laws seem to value the safety of

certain victims above the safety of others.

For example, when

a homosexual is a victim of vandalism and the offense is

motivated by bias, the offender will receive enhanced

punishment.

This places a value on the homosexual’s life

that is higher than that of a heterosexual’s life.

In addition, it

is unfair that the federal government can aid a hate crime

victim’s life in a way that would not be offered to a victim of

crime not motivated by prejudice.

For example, the “long arm

of the federal government”

could assist in the hate crime

offender’s arrest because hate crime laws mandate that an

offender’s information be shared among state, local, and federal

agencies; thus, the federal aid in the apprehension of hate

crime offenders is placing the hate crime victims’ safety above

the safety of others.

While the goal of hate crime legislation is to promote

tolerance and equality, hate crime laws may be hindering

social stability because they “exacerbate societal divisions.”

These laws may be creating more division and tension among

people because they provide protection to selected groups. The

implementation of hate crime statutes has also increased

83. U.S. CONST. amend. XIV, § 1. This Amendment states:

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United

States and of the state wherein they reside. No state shall

make or enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor shall any

state deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

Id.

84. Theodore Winston Pike, Would Hate Crime Laws Make You a

Lawbreaker?, N

AT’L PRAYER NETWORK, http://www.truthtellers.org/

hate%20crimes/hatecrimesarticle.html (last visited Oct. 19, 2016).

85. Id.

86.Id.

87.Id.

88.Id.

89. Pike, supra note 84.

90. Jacobs & Henry, supra note 19, at 391.

2016 HATE CRIME LEGISLATION 339

identity politics.

When crimes are charged as hate crimes,

people in society increasingly relate to each other as members

of competing classes/groups based on identifying

characteristics, such as race or gender.

Ultimately, by

exacerbating societal divisions and identity politics, hate crime

laws may be problematic because they do not promote social

stability.

In addition, opponents of hate crime legislation caution

that it promotes inequality because it results in “negative

unintended circumstances, such as reverse discrimination.”

For example, an attack against a “Caucasian can result in less

serious consequences for the offender than a similar assault

against a victim who is a member of a racial or ethnic minority

group.”

Another negative unintended consequence is the

penalizing of more minorities because hate crime laws are

enhancing penalties against minorities who are supposed to be

among the protected groups in this legislation.

For example,

there are concerns that “white crime victims are using hate

crime laws to enhance penalties against minorities . . . .”

The

fact that hate crime laws are enhancing penalties against more

minorities is supported by statistics stating that, “[e]ighty

percent of violent crimes involve an offender and victim of the

same race . . . [and] [of] the 20 percent of violent crimes that

are interracial, 15 percent involve black offenders and white

victims; 2 percent involve white offenders and black victims;

and 3 percent involve other combinations.”

This is further

evidenced by hate crime cases, such as Wisconsin v. Mitchell, in

91. JACOBS & POTTER, supra note 21, at 5 (defining identity politics as “a

politics whereby individuals relate to one another as members of competing

groups based upon characteristics like race, gender, religion, and sexual

orientation”).

92.See K

OPEL, supra note 78, at 8.

93.Id.

94. S

HIVELY, supra note 15, at 37.

95.Id.

96. Bronski et al., supra note 11.

97. J

ACOBS & POTTER, supra note 21, at 17 (quoting Jill Tregor, executive

director of San Francisco's Intergroup Clearinghouse, “which provides legal

services and counseling to hate crime victims”). See Dooling, supra note 25.

98. H

ATE CRIMES 20 (Tamara L. Roleff ed., 2001),

http://www.dikseo.teimes.gr/spoudastirio/

E-NOTES/H/Hate_Crimes_Viewpoints.pdf.

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340 PACE LAW REVIEW Vol. 37:1

which a young African-American male’s aggravated assault

sentence was enhanced pursuant to a provision in Wisconsin’s

hate crime law from two years to four years because he

exhorted a group of African-Americans to assault a white

youth.

Another negative unintended circumstance is that

longer and harsher sentences associated with hate crime

legislation are leading to younger “more-hardened

criminals.”

100

B. Lack of Deterrence

Unfortunately, data to support the theory that hate crime

legislation deters violence is considered to be inconclusive.

Several reasons explain the inadequacy of the data on

deterrence. First, the Uniform Crime Reporting Program

(UCR), which collects hate crime data from law agencies, and

the National Crime Victimization Survey (NCVS), which

collects data from hate crime victims, are the two primary

methods used to gather data regarding hate crimes.

101

The

UCR gathers information from law agencies in different cities,

where the type of data collected by each jurisdiction varies.

102

The variations in hate crime data collected by law agencies

exist because there are:

(1) Dissimilar hate crime laws from state to

state, including different hate crime statistical

reporting provisions;

(2) variations in the quality of data collection

procedures;

(3) differences in law enforcement training

on hate crime reporting; and

(4) a lack of consensus about the legitimacy

of treating hate crimes as separate kinds of

offenses.

103

Another reason for the variations is “informal

departmental norms.”

104

Police officers may fail to identify

99. Wisconsin v. Mitchell, 508 U.S. 476, 479-81 (1993).

100. Bronski et al., supra note 11.

101. S

HIVELY, supra note 15, at ii-iii, 52.

102.Id. at ii.

103.Id.

104. Jeannine Bell, Policing Hatred: Police Bias Units and the

2016 HATE CRIME LEGISLATION 341

hate crimes because of these norms; norms are the pressures

from within law enforcement departments to avoid labeling

crimes as motivated by bias.

105

“These pressures may be

caused by external forces, like local political leaders who fear

that hate crime data may portray their city as ‘the most bigoted

city in America.’”

106

The information gathered by the UCR is also inconclusive

because some victims who report hate crimes to the NCVS are

unwilling, unable, or simply fail to report the same hate crimes

to law enforcement agencies.

107

This is evidenced by the fact

that the information gathered from the UCR contradicts the

information gathered from the NCVS; in 2004, according to the

UCR, law enforcement was notified of only 45% of the hate

crime victimizations that were reported to the NCVS.

108

2011, the police were notified of fewer than 25% of all hate

crimes reported to the UCR; in 2012, the police were notified of

34% of hate crimes that victims reported to the UCR.

109

Therefore, it is difficult to determine how many hate crimes

occur each year.

Inaccuracy also results from the underreporting of hate

crimes by law enforcement agencies to the FBI.

110

Historically,

some law enforcement agencies from some cities have failed to

report that any hate crimes occurred.

111

In 2014, the cities in

which law enforcement agencies failed to report any hate

crimes to the UCR included Jacksonville, Fla., Irving, Tex.,

Durham, N.C., Ontario, Can., Provo, Utah, Tulsa, Okla.,

Paterson, N.J., and Bellevue, Wash.

112

As mentioned in Part II, certain studies have shown that

hate crime assault victims suffer greater psychological trauma

Construction of Hate Crime, 2 MICH. J. RACE & L. 421, 457 (1997).

105.Id.

106.Id.

107. S

HIVELY, supra note 15, at 52.

108. HATE AND BIAS CRIME, supra note 5, at 42.

109.Id.

110. Eisenberg, supra note 1, at 884.

111.Id. at 883.

112. A

NTI-DEFAMATION LEAGUE, FBI 2014 HATE CRIME STATISTICS ACT

DATA: CITIES THAT DID NOT REPORT, REPORTED ZERO OR REPORTED ONE

INCIDENT (2015), http://www.adl.org/assets/pdf/combating-hate/HCSA-DNR-

and-Zero-reporting-2014.pdf.

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342 PACE LAW REVIEW Vol. 37:1

than assault victims of otherwise-motivated crimes; however,

these studies are defective because they do not compare

“ordinary assault victims with hate/bias-motivated assault

victims (when the severity of the assaults and the injuries are

equivalent) . . . .”

113

Ultimately, the studies measuring the

traumatizing effects of hate and bias crimes from ordinary

crimes are defective/faulty, and the idea that a hate crime

perpetrator will really refrain from harming another person

due to enhanced penalties is inconclusive because there is no

substantial, reliable evidence to prove these theories. Based on

the multiple reasons for the inaccuracy in hate crime data,

improvement in the collection of this data is needed to assess

the impact and necessity of hate crime legislation.

C. Hate Crimes are Rarely Prosecuted, Inconsistent

and Redundant

Even though hate crime legislation exists in the majority of

states, hate crimes are rarely prosecuted, most likely because it

is difficult for prosecutors to prove that a crime has been

motivated by bias.

114

For example, while the United States

Department of Justice defines a “bias crime” as “[a] committed

criminal offense that is motivated, in whole or in part, by the

offender’s bias(es) against a race, religion, disability, sexual

orientation, ethnicity, gender, or gender identity; also known as

Hate Crime,”

115

determining whether a crime is motivated, in

whole or in part, by bias is a difficult task.

116

Defendants will

rarely provide any insight into their motivations,

117

and

offenders will rarely confess to any type of racial animus.

118

113. Hurd & Moore, supra note 16, at 1088.

114.See Jacobs & Henry, supra note 19, at 383-84. See also Terrence

McCoy, Chapel Hill Killings: Why Hate Crimes are so Hard to Prove,

WASH.

POST (Feb. 12, 2015), https://www.washingtonpost.com/news/morning-

mix/wp/2015/02/12/.chapel-hill-murders-why-hate-crimes-are-so-hard-to-

prove/.

115. U.S. DEP’T OF JUST., HATE CRIME DATA COLLECTION GUIDELINES AND

TRAINING MANUAL 8 (2012),

http://risp.ri.gov/documents/UCR/Hate_Crime_Data_Collection_Guidelines_r

ev2012.pdf.

116. Jacobs & Henry, supra note 19, at 384.

117.Id. at 384.

118. Gregory S. Parks & Shayne Jones, Hate Crimes and Revealing

Motivation through Racial Slurs, THE JURY EXPERT (Sept. 1, 2009),

2016 HATE CRIME LEGISLATION 343

the defendant does not provide the motivation, it may be

available from the crime scene, although this is also a rare

occurrence.

119

In the absence of these sources, the perpetrator’s motives

must be inferred by the information obtained from the victim;

however, gathering information from victims becomes

problematic.

120

A victim “may be mistaken, hold personal

biases that affect his or her judgment, be overly sensitive, have

misperceived the incident, or simply be unreliable.”

121

Additionally, even if prosecutors are able to obtain information

that the perpetrator had made previous anti-bias comments

from the perpetrator’s personal property, such as a computer or

cell phone, the prosecutor may still have a difficult task of

trying to prove, beyond a reasonable doubt, that the offender’s

motive, on the actual day of the crime, was based on bias or

hate.

122

The quandary that prosecutors face is made more

difficult by the reality that even “when someone has a track

record of hate — or of bigotry — it doesn’t necessarily mean

that the crime was in any way related to that bigotry.”

123

Ultimately, offenders commit crimes for a number of reasons,

and proving a hate crime is a complex endeavor for prosecutors

across the United States.

124

Terrence McCoy illustrates this difficulty, describing a

February 10, 2015 occurrence where Craig Hicks, a Caucasian

male, shot and killed three young Muslims over a parking

dispute in North Carolina.

125

The victims’ families alleged

that:

This was not a dispute over a parking space; this

was a hate crime. This man had picked on my

daughter and her husband a couple of times

http://www.thejuryexpert.com/2009/09/hate-crimes-and-revealing-motivation-

through-racial-slurs/.

119.Id.

120. Jacobs & Henry, supra note 19, at 384.

121.Id.

122. See SHIVELY, supra note 15, at 37.

123. McCoy, supra note 114.

124. Jacobs & Henry, supra note 19.

125. McCoy, supra note 114.

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344 PACE LAW REVIEW Vol. 37:1

before, and he talked with them with his gun in

his belt . . . He hates us for what we are and how

we look.

126

To date, the killing of these young Muslims is not being

prosecuted as a hate crime because even if the victims’ families’

comments are accurate and the defendant did actually hate

these individuals, it is still insufficient information to prove

that this was a hate crime under federal or state law.

127

In this

case, the prosecutor must still establish that Hicks’ motive on

the actual day of the murder was based on bias or hate, and the

facts might prove that the motive was not racial, but due to a

dispute over a parking spot.

128

Social animosities worsen when hate crime legislation

exists but a crime is not charged as a hate crime. Members of

the community become “understandably unhappy when an

apparently race-, gender- or religion-based crime against

someone they perceive as one of their own isn’t prosecuted as a

hate crime.”

129

Feelings of betrayal are also expressed by the

victims’ families, interest groups, and advocacy

organizations.

130

Opponents of hate crime legislation also question the

unpredictable and inconsistent use of hate crime legislation.

131

That is, even when cases are undoubtedly hate crimes, a

prosecutor may often choose not to charge a crime as a hate

crime.

132

The David Ritcheson case exemplifies this, in which

Ritcheson’s attackers brutally attacked and sodomized this

seventeen-year-old Hispanic boy with a sharp plastic pipe, but

there were no hate crime charges.

133

Even though this case

126.Id.

127.Id.

128.Id.

129.Id.

130. See Eisenberg, supra note 1, at 863, 867.

131.Id. at 895.

132.Id.

133. Tuck v. State, No. 01-06-01086-CR, 2008 WL 4757005, at *1 (Tex.

Ct. App. Oct. 30, 2008); Turner v. State, 252 S.W.3d 571, 575 (Tex. Ct. App.

2008). See No Hate Crime Charges After Brutal Attack, NBCNEWS.COM (Apr.

28, 2006, 2:49 PM), http://www.nbcnews.com/id/12530133#.UuB3AtLTlaQ

[hereinafter No Hate Crime Charges].

2016 HATE CRIME LEGISLATION 345

featured archetypal hate crime characteristics because the

offenders were covered in swastika and white power tattoos,

and referred to the victim as a “spic” and a “wetback,” neither

of the defendants was charged with a hate crime.

134

Mike

Trent, the prosecutor in the case, explained that he did not

prosecute the case as a hate crime because, “[w]hether it is one

or isn’t a hate crime, and it may be, that will make no

difference here . . . . This is already a first-degree felony and it

can’t be elevated any higher. There’s nowhere to go beyond

this, unless the victim dies.”

135

However, the Anti-Defamation

League looks for the prosecutors “to add hate-crime charges

even if it won’t add to the penalties [because they] ‘want the

public to accept and understand that this was a hate crime.’”

136

The killing of Christopher Lane, a Caucasian Australian

college student, exemplifies another recent case in which the

prosecutors did not charge the offenders with a hate crime

despite the evidence.

137

In 2013, in Duncan, Oklahoma, Lane

was murdered by two African-American teenagers who had

tweeted anti-white comments days prior to the murder.

138

The

District Attorney stated that the evidence was not sufficient to

establish that the primary motive of the killing was race.

139

Thus, charging the defendants with a hate crime would be

redundant because the defendants accused of murdering Lane

had already been charged with felony murder.

140

Even though

the tweets were offensive, the United States Attorney of

Oklahoma, Robert McCampbell stated, “[the tweets] don’t tell

134. Eisenberg, supra note 1, at 862-63.

135. No Hate Crime Charges, supra note 133 (“Trent said that adding

hate-crime charges to the aggravated sexual assault faced by David Henry

Tuck, 18, and Keith Robert Turner, 17, would have no legal effect.”).

136.Id.

137. Andres Jauregui, Christopher Lane Murder: Race Not A Factor in

Thrill Killing of Australian Baseball Player, Prosecutor Says, H

UFFINGTON

POST (Aug. 26, 2013, 11:02 AM),

http://www.huffingtonpost.com/2013/08/26/christopher-lane-murder-race-not-

motive_n_3816705.html [hereinafter Christopher Lane Murder].

138. Id. See also Andres Jauregui, James Edwards Tweets: Teen

Charged in Murder Accused of Sending Racist Messages, H

UFFINGTON POST

(Aug. 22, 2013, 12:06 PM), http://www.huffingtonpost.com/2013/08/22/james-

francis-edwards-tweets-racist-messages_n_3794913.html (one of the teenage

offenders tweeted that “90% of white ppl are nasty. #HATE THEM”).

139. Christopher Lane Murder, supra note 137.

140.Id.

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346 PACE LAW REVIEW Vol. 37:1

you anything about the day of this particular crime . . . . You

concentrate on the crime in front of you and you prove that

crime, and there’s no need to take on that extra burden of

proving it was racially motivated.”

141

As witnessed in the Ritcheson and Lane cases, hate crime

legislation can be viewed as redundant because “the predicate

crimes are already punishable by criminal codes, so there is no

need to create laws for a certain subset based upon the

characteristics of the victim or motivation of the offender.”

142

The James Byrd and Shepard cases evidence the fact that

existing criminal laws adequately punish perpetrators.

143

both of these cases, neither of which was prosecuted as a hate

crime, the victims were horrifically killed, and the murderers

were all convicted and adequately punished.

144

Critics of hate

crime legislation also proclaim that “[e]xisting criminal laws

cover every victim, revered or reviled alike [and] [h]ate crime

laws selectively recriminalize acts that are already crimes.”

145

D. Arbitrary Exclusion

Another controversy surrounding hate crime legislation is

that only select groups of people are eligible for their

protection.

146

Opponents question whether the government

arbitrarily chooses who will and will not be among the

protected groups: how does the government determine and

justify which group of people should be protected/included

141. McCoy, supra note 114 (making these comments to Fox 25, U.S.

Attorney Robert McCampbell stated, “It’s much easier to talk about

something being a hate crime than it is to actually go to court and prove that

beyond a reasonable doubt.").

142. S

HIVELY, supra note 15, at 38.

143. Michael Martin, Are Hate Crime Laws Necessary?, NAT’L PUB.

RADIO (Apr. 10, 2012, 12:00 PM), http://www.npr.org/

2012/04/10/150351860/are-hate-crime-laws-necessary.

144. A

NTI-DEFAMATION LEAGUE, MATTHEW SHEPARD AND JAMES BYRD, JR.

HATE CRIMES PREVENTION ACT FIFTH ANNIVERSARY, 6-7 (2014),

http://www.adl.org/assets/pdf/education-outreach/hate-crimes-prevention-act-

fifth-anniversary.pdf (explaining that one of Byrd’s murderers is serving a

life sentence, and the other two murderers were sentenced to death.

Shepard's murderers are serving life sentences; they were not given the death

penalty because Shepard’s parents sought mercy for the defendants).

145. Dobbs, supra note 47.

146. See SHIVELY, supra note 15, at 38.

2016 HATE CRIME LEGISLATION 347

under hate crime laws?

147

A reasonable argument or

illustration may be why certain groups of people, such as

“government employees [who] are among the objects of targeted

violence by some militia groups; [and/or] physicians who work

in family planning clinics [that] are targeted for attack by other

groups,” are not offered these same protections.

148

Also, critics question if the government will continue

adding certain groups to be protected under hate crime laws,

evidenced by the hate crime legislation in Florida.

149

Because

there have been several horrific hate crimes against the

homeless, Florida has “broadened the category of hate crimes

to include homelessness in Florida.”

150

This caused controversy

among Florida residents because they believed this expansion

“was watering [the legislation] down too much,” and that

homeless people were already covered under ordinary laws.

151

Opponents state that this is problematic and unjust because, as

the government arbitrarily adds certain people to be protected

under hate crime legislation, they are also arbitrarily making it

a point to exclude certain groups of people, such as the

government employees and physicians mentioned above.

152

Also, critics are concerned that certain hate crime

prosecutions can produce some “weird kind of configurations . .

. ,”

153

recently evidenced in a New York case in which a group

of lesbians were charged with a hate crime for beating up a gay

man; the crime was based on the victim’s sexual orientation.

154

As strange as this scenario may seem, the law reads, “as long

as the prosecution can prove intent to discriminate against that

group, [it] doesn’t matter what group the defendant is in.”

155

147.Id.

148.Id. at 39.

149. Martin, supra note 143 (quoting law professor and former federal

prosecutor Paul Butler about whether there is a necessity for hate crime

statutes).

150.Id.

151.Id.

152. S

HIVELY, supra note 15, at 39.

153. Martin, supra note 143.

154.Id.

155.Id.

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348 PACE LAW REVIEW Vol. 37:1

E. An Individual’s Response

Critics of hate crime legislation find it ironic that

individuals who are protected under these statutes have voiced

concern with the unintended negative effects of these laws.

156

One such individual, Kay Whitlock, a political theorist, author,

and the National Representative for the Lesbian, Gay,

Bisexual, and Transgender Group, delivered a candid synopsis

of her concern:

[T]he simple framework of ‘hate’ to describe and

punish violence is completely inadequate to

address the deeper divisions and schisms in our

culture that are the root of the problem.

Arresting people, often young people, and placing

them, for long periods of time, in prisons that

make no attempt at rehabilitation and will

undoubtedly subject them to the endemic

violence of prisons, are part of the problem, not

the solution . . . [T]he only way we, as a country

and a political system, can move beyond a

culture of violence is to work from the bottom up,

not the top down. We need to address violence

and hatred on the most basic interpersonal levels

and at the level of small communities. Working

within communities, schools, neighborhoods and

organizations to examine the racial, economic

and psychological reasons that are often

underpinning these crimes will move us beyond

the simplistic rhetoric of an ambiguously defined

“hate.” This may seem utopian, but community-

based groups such as INCITE! Women of Color

Against Violence and FIERCE, a New York City

group comprised of young people of color, are

doing this work already. Hate crime laws do

none of this.

157

156. Bronski et al., supra note 11.

157.Id.

2016 HATE CRIME LEGISLATION 349

IV. Hate Crime Legislation is Not Cost-Effective

Not only is the practical value of hate crime legislation

doubtful, additional funds are being allocated to maintain and

enforce hate crime legislation. According to the United States

Department of Justice, in 2013, $5.1 million of its yearly

budget was allocated to the Civil Rights Division for “further

investment [in programs] and to support areas the Attorney

General has determined warrant specific attention including . .

. hate crimes . . . .”

158

In addition to these funds, “$391,000 and

5 [staff] positions are requested for the Community Relations

Service to support an increase in workload and responsibilities

related to the Matthew Shepard and James Byrd, Jr. Hate

Crimes Prevention Act.”

159

The Shepard and Byrd Hate

Crimes Prevention Act also provides financial assistance to

local law enforcement agencies to investigate hate crimes.

160

For example, in addition to the yearly funding, it allows the

United States Justice System to “grant state and local officials

up to $100,000 to cover the costs of prosecuting a [single] hate

crime.”

161

In addition to this money, the federal government

may need to provide funds to federal agents to assist local and

state law enforcement officials with hate crime

investigations.

162

V. Recommendation

Given the negatives associated with hate crime legislation,

the funds used to support hate crime legislation may be better

spent on addressing the social problems that give rise to hate

crimes and educating or reeducating our citizens.

163

Prejudicial

attitudes are not innate, but learned.

164

Thus, families,

158. U.S. DEP'T OF JUSTICE, U.S. DEP’T OF JUSTICE OVERVIEW (2014),

http://www.justice.gov/sites/default/files/jmd/legacy/2014/08/25/fy13-bud-

summary-request-performance.pdf.

159.Id.

160. Ari Shapiro, Obama Sets To Sign Bill Widening Hate Crime Laws,

NAT’L PUB. RADIO (Oct. 28, 2009, 11:25 AM),

http://www.npr.org/templates/story/story.php?storyId=114223708.

161.Id.

162.Hate Crimes, FBI, https://www.fbi.gov/investigate/civil-rights/hate-

crimes (last visited Oct. 10, 2016).

163. Bronski et al., supra note 11.

164. Preventing Youth Hate Crime, supra note 4.

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350 PACE LAW REVIEW Vol. 37:1

communities, schools and law enforcement need to work

together to instill respect and appreciation for diversity by

helping others “develop empathy, conflict resolution, and

critical thinking skills.”

165

Social workers and other

community relation agencies need to become more involved in

educating citizens because they are trained and experienced in

hate-related victimization. Ultimately, resources should be

directed away from hate crime legislation and towards cultural

changes to prevent hate crimes.

Conclusion

The equality of each and every individual is vital, but the

enactment of hate crime legislation is not the means to

accomplish this. Distinguishing hate crimes from other types

of crimes is not effective because these laws do not fulfill their

intended purposes and they result in unintended, negative

consequences. The main objective of hate crime legislation is to

promote social stability and equality. However, in reality,

these laws promote inequality and exacerbate societal divisions

and identity politics. Hate crime legislation pits protected and

unprotected groups against each other by declaring that

certain groups of people are more deserving of legal protection

than others.

166

Hate crime legislation may cause reverse discrimination,

creating another negative unintended circumstance. Why is it

acceptable for an offender to suffer less serious consequences if

they assault a person who is not protected under hate crime

statutes? Another issue is that hate crime laws are enhancing

penalties against minorities, and minorities are among the

protected groups in this legislation. In addition, there is no

valid proof that hate crime enhanced penalties are decreasing

or deterring hate crimes, but the harsher punishments are

clearly leading to more-hardened criminals.

167

There may be underlying motives for the enactment of this

type of legislation, and the media and politics may have played

a disproportionate role in the passage of these laws. From a

165.Id.

166. SHIVELY, supra note 15, at 38.

167. Bronski et al., supra note 11.

2016 HATE CRIME LEGISLATION 351

legal perspective, there is no reason to separate hate crimes

from other crimes; laws already exist to protect all victims of

crime, regardless of the victims’ identity. In addition, hate

crime legislation’s intent to achieve tolerance and equality

presents constitutional concerns, including Equal Protection,

Double Jeopardy, and Freedom of Speech and thought. Most

Americans agree that these constitutional violations are

unacceptable in a democratic society.

168

Even though hate crime legislation has gained popularity

and exists in the majority of states, there are still some issues

with the implementation of these laws. Prosecutors across the

country claim hate crimes are difficult to prove. Focus is also

placed on the vagueness and redundancy of hate crime

legislation, and the inconsistency involved in the prosecution of

this type of legislation. Not only is the practical value of hate

crime legislation doubtful, there are additional costs affiliated

with enforcing and maintaining anti-hate laws, and they place

a substantial financial burden on our government and

taxpayers.

In sum, hate crime legislation is not necessary or effective.

At the very least, more research needs to be conducted to

discover the real reasons why people commit hate crimes, and

efforts made to address the reasons why people commit these

crimes must improve. A political leader’s opposing view on

hate crime legislation should be candidly voiced and heard

without the fear of being labeled as a bigot.

169

168. See Kopel, supra note 78.

169. Nearpass, supra note 35, at 554.

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