How Has the Law Been Used to Respond to Bias-Motivated Violence?

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August 6, 1999

· The majority of states has passed some form of hate crime law.

· The general justification for hate legislation has been that harassment and intimidation, assault, and destruction of property assume a particularly dangerous and socially disruptive character when motivated by bigotry (Bensinger 1992; Jenness 1995; Mazur-Hart 1982).

· State hate crime laws vary in terms of the status provisions they contain (Figure 2).

· Race, religion, color, and national origin are the most often identified protected statuses in hate crime law.

· Ancestry, sexual orientation, gender, and disability constitute a "second tier" of legally recognized protected statuses.

· Only a few states include creed, ethnicity, political affiliation, age, marital status, involvement in civil/human rights, and armed service personnel.

· The clusters of statuses reflect the history of various post-1960s civil rights movements in the U.S. (Jenness and Broad 1997).

· Race, religion, color, and national origin constitute the historical beginning of contest over minorities' status and rights. Not surprisingly, there is a more developed history and record of invoking and then deploying the law in order to protect and enhance the status of Blacks, Jews, and immigrants.

· Because the gay/lesbian movement, the women's movement, and the disability movement have been the source of a "second wave" of civil rights activism and "identity politics," sexual orientation, gender, and disability have only recently been recognized by law. They remain less embedded in hate crime laws, in part, because they constitute more heavily contested protected statuses (Jenness and Broad 1997).

· In general, there has been a trend toward greater inclusiveness of status provisions over time.

· State laws differ in terms of what kind of conduct they cover (Figure 3). As with the status provisions, there appears to be a trend toward greater inclusiveness.

· Originally, many hate crimes covered only bodily injury, property damage, and threats.

· More recently, states have begun to pass laws that enhance penalties for any crime in which the victim was selected because of race, religion, sexual orientation, gender, or disability.

· Following the states', the U.S. Congress has passed three separate laws specifically designed to address bias-motivated violence. In late July 1998, the Senate passed the Hate Crimes Prevention Act, which puts the resources of the federal government behind hate crime prosecution and extends protections to parts of county not currently covered by state hate crime statutes.

· Challenges to the laws before Appellate Courts, based on 1st and 14th amendment objections, have narrowed hate crime statutes such that they mainly regulate conduct already criminalized and do not criminalize speech alone.

· The U.S. Supreme Court in Wisconsin v. Mitchell (1993) confirmed the constitutionality of hate crime statutes. Since then, challenges have been largely rejected.

· Judges have converged around the idea that hate crime laws follow the same logic as antidiscrimination laws. Thus, they are understood to provide little scrutiny of motives and instead focus attention on discriminatory conduct (Phillips and Grattet 1999).

· Variation in policing practices has led to incomparability of statistics across jurisdictions (Boyd, Berk, and Hamner 1996).

· With increasing familiarity of the hate crime statutes, police and prosecutor behavior are becoming more convergent.

· Hate crime training curriculum has become more standardized with the recent FBI training guidelines.

· In California, prosecutors are obtaining conviction rates and guilty plea rates that are comparable to other more settled categories of crime (Phillips and Grattet 1999).

· Developments indicate that hate crime is not "unenforceable" or a hopelessly ambiguous concept, but is instead being incorporated into existing police practices.

References

Bensinger, Gad. 1992. "Hate Crimes: A New/Old Problem." International Journal of Comparative and Applied Criminal Justice 16:115-123.

Boyd, Elizabeth, Richard Berk, and Karl Hamner. 1996. "Motivated by hatred or prejudice: categorization of hate-motivated crimes in two police divisions." Law & Society Review 30:819-850.

Jenness, Valerie. 1995. "Hate Crimes in the United States: The Transformation of Injured Persons into Victims and the Extension of Victim Status to Multiple Constituencies." Pp. 213-237 in Images and Issues: Typifying Contemporary Social Problems, edited by Joel Best. New York: Aldine de Gruyter.

Jenness, Valerie and Kendal Broad. 1997. Hate Crimes: New Social Movements and the Politics of Violence. Hawthorne, NY: Aldine deGruyter.

Mazur-Hart, Helen L. 1982. "Racial and religious intimidation: An analysis of Oregon's 1981 law." Willamette Law Review 18:197-218.

Phillips, Scott and Ryken Grattet. 1999. "Judicial Rhetoric, Meaning Making, and the Institutionalization of Hate Crime." Under Review.

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