Hate Crimes Legislation

If membership figures for anti-Semitic and racist organizations are hard to determine, and data on incidents murky and conflicting, statistics on so called "hate crimes" are problematic as well. In 1990 congress passed legislation based on the ADL’s model statute requiring the United States Attorney General to "set up a system for collecting statistics on hate crimes" known as the "Hate Crimes Statistics Act." The ADL had lobbied mightily for this legislation, as well as virtually identical legislation in several states. In addition to serious crimes such as murder, arson and manslaughter, relatively minor offenses such as simple assault, intimidation and vandalism which includes graffiti, were to be included in the tabulation. The legislation contained no provision for reporting incidents that turn out to be hoaxes as such. When an incident is discovered to be a hoax it might be dropped from the statistics, and it might not. Even more disturbing the legislation contained no provision to exclude unsolved offenses, many of which are probably hoaxes. Offenses having the mere appearance of a hate crime are to be reported as such, including unsubstantiated telephone threats, anonymous graffiti and unproven claims of name calling Local police departments quickly stepped in line. The Los Angeles Police Department adopted a policy that classified all hate crimes as "category one" crimes, "like felonies, with named suspects." Robert Vernon, LAPD assistant chief of police, announced that even misdemeanor offenses, such as alleged threatening phone calls or malicious mischief would be aggressively investigated by police. In 1991 FBI director William Sessions announced that "The implementation of the hate-crimes program will continue to be a top priority of the FBI." However, Sessions also commented that while there appeared to be an increase in hate crimes, the rise may be due partly to required reporting. The decision to even classify incidents as "racially-motivated" is fraught with issues of subjectivity and bias. Although "racially-motivated" seems to be a neutral term, it is not. In practice it’s been a code phrase for crime by white (and not black) racists. It creates the anomaly of white youth receiving a stiffer sentence for mere graffiti on a black business than a black youth might receive for the burglary of its owner! "Racially-motivated" is a legal distinction that justifies preferential status and discriminatory punishments. In many cases, the law actually provides for civil penalties and damages, which actually encourages hoaxes and fabrications. More importantly, we are in grave danger of institutionalizing a double standard where some citizens are accorded special protections based entirely on their race while others are penalized for theirs -- a problem the Civil Rights movement originally sought to redress. A dramatic example of that double standard was illustrated in the 1990 "dart man" case in New York City. "Dart man" was a black man who went around Manhattan shooting blowgun darts into women’s behinds. Although all of "dart man’s" two dozen plus victims were white (including two light-skinned hispanics), it was reported that "authorities do not think race is a factor." Police are quoted as saying that they "have no reason to believe the attacks are racially motivated." However, in New York City’s diverse racial mix the odds of picking two dozen white women at random are on the order of winning Lotto America! Imagine for a moment what the conclusion would have been had "dart man" been white and all of his victims would have been black.s The selective police attention to alleged hate crimes is shadowed by selective media inattention to hate crime hoaxes. Many hoaxes are only reported in the local media and die when they reach the wire services. I’ve also been told that a fair number are simply "spiked" once their nature is ascertained, out of "sensitivity" to minority concerns, or so as not to "give ammunition" to racists. Absent some kind of clipping service, a network of local "monitors" or the intelligence capability of the American law enforcement community, one is at a considerable disadvantage researching this subject. There could be a much bigger story here than initially appears. In Kansas City, for example, Terrence Weaver defaced a wall near a major art museum with racist and anti-Semitic graffiti in September, 1989. He was observed, chased, and apprehended. The local newspaper reported the incident as a "hate crime," along with the interesting fact that the perpetrator hag checked himself into a local mental hospital immediately after his arrest. The incident quickly faded and no more was heard of it. The Kansas City Star has declined to pursue the matter. My own investigation revealed that this young man was well-known to local leftists, and that he had talked of a plot to entice all Ku Klux Klansmen and neo-Nazis to a meeting then blow up the building and kill them. He was, in fact, not racist but anti-racist. Kansas City police sat on the case and local anti-fascist activists seemed to be holding their breath until the story faded into the memory hole. If you didn’t live in Kansas City and read the local paper, you wouldn’t know it had happened. If you hadn’t investigated, you wouldn’t know it’s a probable hoax incident. Are there more cases like this? Probably so. Valid Objections To Hate Crimes Reporting Act There are many valid criticisms of the "hate crime reporting" concept but by far the most legitimate is that selective reporting exaggerates a phenomenon by calling selective attention to it. If statistics were kept of crimes committed by Methodists, or left-handed Democrats, or by service station employees, or of crimes against these groups, it would quickly seem that we have a serious crime problem in these areas. To answer an objection to this argument from a Jewish friend, I asked what the probable consequences of compiling and publicizing statistics on crimes by Jews in the United States might be, so as to draw attention to them. He quickly conceded that it would seriously distort the picture and lead to "dangerous false conclusions" by "singling out a particular group" and would be "unfair selective attention." Enough said. A s Civil libertarians are traditionally concerned with two issues more than any other. In criminal law, they are concerned with due process issues, i.e., the fairness of the criminal justice system and its adherence to procedural processes that ensure even-handedness and protection for the rights of the accused. In constitutional law, the issue of free speech overshadows most other concerns, since it is regarded as the bedrock upon which all other freedoms depend, and rightly so. The Anti-Defamation League seems acutely aware that too scrupulous an adherence to civil liberties can be counter-productive to its interests. For example, inconvenient standards of evidence in criminal trials may allow individuals they would prefer to see convicted to go without punishment and ritual defamation, hence their clever advocacy of civil action against individuals and groups who offend their interests, whether or not they have been convicted of an actual criminal offense. In civil cases, evidence is allowable that wouldn’t get past the door in a criminal case. Among other things, the standard for conviction is merely the preponderance of evidence, and not the more rigorous "beyond any reasonable doubt." Simply put, if you can’t prove a crime, you may still be able to punish with a civil judgment. Similarly, although they routinely deny it, free speech is troublesome to the ADL when it includes values, opinions and beliefs they they regard as retrograde to their interests, such as criticism of Jews, Israel, or Jewish institutions. When the ADL condemns anti-Semitism, they are usually condemning some form of expression of values, opinions and beliefs. Accordingly, while the ADL has officially given muted opposition to discredited and unconstitutional "hate speech" legislation, it has worked mightily to create the climate that produced it. The "hate speech" case in question was a St. Paul, Minnesota, ordinance outlawing mere expressions of racism and anti-Semitism, including speech, writing, art as well as symbolic acts such as cross burnings The United States Supreme Court decided unanimously in June, 1992, that the ordinance was in violation of the constitution. On the other hand, the issue in the ADL’s model "hate crime" statute, which they have successfully lobbied through most state legislatures, and which is being embodied in federal legislation as well, is that certain forms of speech, such as hostility or contempt for racial or ethnic interest groups, may not be unlawful in itself, but when expressed in conjunction with a criminal act, such as graffiti, vandalism or assault, it should result in a mandatory increase in sentence. Bona fide criminal activity, including violence, is always prosecutable, as it should be, but the ADL clearly feels that criminal activity directed against Jews and their clients in the minority community deserves special punishment. However, to make a law singling out a particular interest group for special protection is a touchy subject, and consistent civil libertarians have tended to oppose that tactic, affirmative action programs aside. The ADL anticipated that laws prohibiting acts directed at specific groups as "hate crimes" might present constitutional difficulties (particularly the equal protection clause). Such laws may also encourage public perception that "special people get special protections," a view that the ADL wishes to discourage. Americans tend to reject "group rights," and public awareness that the ADL is promoting precisely what could be a public relations blunder. The ADL chose to minimize these complications by focusing its legislative offensive on the sentencing phase of the criminal procedure. This way, one can say that the accused has not been convicted of a "special" crime designed to provide "special protections" to "special groups," but rather has been convicted of an ordinary crime -- only the punishment is to be more severe because of the circumstances surrounding it. No one is being convicted of a thought crime because of their values, opinions and beliefs, only A S sentenced to longer terms because of them. But why this convoluted tactic? Wouldn’t the appellate courts see the ruse? In 1993 the Wisconsin Supreme Court did exactly that when they it invalidated a state law mandating longer sentences in hate crimes. Many civil libertarians applauded this development. Sentencing practices are the neglected area of due process. One can see this immediately by noting the wide disparity of sentencing in similar crimes. A simple $100 burglary may bring probation in one case, and 20 years in another. Factors only marginally relevant to the seriousness of the crime at hand are allowed in the sentencing process, such as the defendant’s appearance or courtroom demeanor, the judge’s perception of the defendant’s repentance (which may say as much about the judge as it does the defendant), or whether or not the defendant plead guilty or had the temerity to demand a trial. In other words, "evidence" can be entered into a sentencing hearing that would be inadmissible in the trial itself. More than one civil liberties attorney has cringed at the arbitrariness of sentencing procedures. It could be said with respect to hate crimes that all the penalty enhancement statutes do is formalize a kind of discrimination that is already occurring on an ad hoc basis. Unfortunately, penalty enhancement makes it mandatory. Racial Motivation and Sentencing Policy The particular case that brought this issue before the U. S. Supreme Court in 1993 involved not a white, but a black defendant in a case of aggravated battery. Todd Mitchell was one of a group of black teen-agers who severely beat a 14-year old white boy in Kenosha, Wisconsin in 1989. The group had just seen the film Mississippi Burning, which glorifies the civil rights movement of the 1960s and vilifies its opposition -- not a particularly difficult task. When Mitchell and his gang came upon the victim, Mitchell said, "There goes a white boy! Go get him." They did, and the boy was seriously injured in the beating that followed. A jury found Mitchell guilty, and he was sentenced to two years in prison, the maximum for aggravated battery in Wisconsin. However, the jury, finding that Mitchell chose his victim on the basis of his race, went on to increase his sentence to a maximum seven years, or a 350% increase! Paradoxically, had Mitchell merely beaten a black person for some other reason, such as wanting his shoes, he would not have been so thoroughly savaged at sentencing. Two years would be two years, and he probably wouldn’t have gotten that. Mitchell appealed, and the Wisconsin Supreme Court invalidated the longer sentence. They said the state legislature had violated the First Amendment by criminalizing "bigoted thought with which it disagrees." Civil rights groups and the ADL were outraged. In April, 1993, Wisconsin Attorney General James E. Doyle argued the case before the U. S. Supreme Court, making the distinction that the case involved conduct and not ideas. As the result of a massive lobbying effort in which the ADL played a major part, 49 other states had filed briefs in support of Attorney General Doyle. The Supreme Court agreed7with Doyle, and unanimously reaffirmed Mitchell’s 350% sentence enhancement. The Supreme Court’s reasoning bears special examination. Chief Justice William Rehnquist, writing for the court, said that "...a defendant’s abstract beliefs, however obnoxious to most people, may not be taken into consideration by a sentencing judge. Rehnquist offered that those beliefs are no longer abstract once they 1 provide the motive for discriminatory action. Thus, according to his reasoning, "a physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment." Of course it isn’t, and no one argued that it was. Physical assaults are and always have been punishable. The court’s decision is, of course, a can of worms. with this logic it would be possible to legislate penalty enhancement for thieves whose crimes , were motivated by "disrespect for private property," or shoplifters whose pilferage was occasioned by adherence to social doctrines that denigrate the virtue of capitalism. Although one might only be convicted of one offense, I the net effect may be to get the equivalent of two times the normal sentence. It might as well be double jeopardy, for all practical purposes, accompanied by two convictions and two sentences. However, all may not be not lost. If these laws are applied equally to all interracial "hate" crimes, broadly defined, and not primarily in the cases where minorities are the alleged victims, the discriminatory effect against whites may be blunted, perhaps severely. In the end they may become another nuisance law that has proven embarrassing to its proponents by virtue of its unforeseen consequences. Unforeseen Consequences of Hate Crime Legislation New York University law professor James B. Jacobs has written that the bl crime legislation was to protect allegedly victimized blacks from victimizing A proliferation of "hate crimes" laws have resulted in (apparently) unforeseen problems. Attributing the degree of "prejudice" or racial animosity necessary to establish a hate crime motive is not the least of the problems. Virtually all interracial crimes may be perceived as a hate crime if the conditions are defined loosely enough. Noting that the original impetus of hate crime legislation was to protect allegedly victimized blacks from victimizing whites, he says "Indeed, at some point in the future some supporters of hate crime laws may be dismayed to find that these laws are frequently used against black offenders." Such a state of affairs may already be on the horizon, according to no less of a source than the SPLC’s Klanwatch. In December 1993 New York Times writer Peter Applebome reported "Klanwatch said that in the last three years 46 percent of all racially motivated murders tracked by the group were committed by blacks on victims who were white, Asian or Hispanic." In an unsigned editorial in the "Comment" section of a June 1993, issue of The New Yorker, these concerns were also expressed. with reference to the 1993 U. S. Supreme Court ruling in Wisconsin v. Mitchell, the editorial noted that the black youth who had taken part in the beating of a white youth, was essentially being punished because his victim wasn’t black. The editorial also observed, "In Wisconsin, where less than a tenth of the population is nonwhite, half the defendants in hate-crimes cases have been minorities. A preliminary FBI report on hate crimes earlier this year found that thirty percent of the offenders whose race was reported were black. I However, in another zinger, the editorial also raised the specter of the old saw, "What goes around, comes around." "Now that the Supreme Court has upheld the Wisconsin statute, it is a safe bet that the law-enforcement community, which more often than not is largely white and largely conservative, will find black offenders a more tempting target for hate crimes prosecution..." What might have been the civil rights establishment’s worst nightmare occurred in December 1993, when Colin Ferguson, a black man of Jamaican ancestry, deliberately shot and killed six white passengers and wounded 19 others on a Long Island railroad commuter train. It was clearly a "hate crime," for Ferguson raged at black "uncle Toms" and carried notes on his person expressing his hatred toward white people3 Ferguson has been indicted on 93 counts, including civil rights violation. a Black spokesmen Jesse Jackson immediately went into damage control, expressing fear of a backlash" and preaching a message of healing and reconciliation. Jackson was reported as saying his second thought upon learning of the killings was o I "Hoping against hope it wasn’t a black person because I knew the e would immediately be a rash of irrational conclusions." But not to worry, Klanwatch and Jesse Jackson, for Ferguson was portrayed in the media as a victim of white racism on the one hand, and as a victim of mental illness on the other. Had he been a white man who had killed six black people solely because of their race, we might still be hearing about it. In the meantime, however, the story has disappeared from the news. It’s the opinion of this writer and many other observers that an evenhanded approach to the hate crime controversy, in which equal standards apply, and behavior that is considered a "hate crime" for whites would also be considered a "hate crime" for blacks (or anyone else), would reveal a picture much different than militant "anti-racist" groups would prefer. Let’s take a few examples from the nation’s campuses. a a In 1989, the situation of black-on-white violence got so bad at Brown University in Providence, Rhode Island, that university president Vartan Gregorian said he was considering asking for federal help. According to Robert Reichley, vice president for university affairs, "There have been 16 reported cases since classes began in September [a six week period], Mr. Reichley said. In most cases, he said, black men have attacked white male students or have sometimes drawn guns or other weapons." In I991, University of Illinois officials met with police to discuss an alarming series of assaults on white students by black gangs, who apparently attacked the students as part of a gang initiation rite. According to news sources, "Police said the gang initiation rite requires the potential gang member to find a large white male and knock him out with one punch." The two gangs involved in the assaults, from Champaign and Urbana, traveled in groups of four to twenty and members ranged in age from 15 to 23, according to news reports "Officials expressed concern about a backlash resulting from the attacks. The preceding two cases involved college campuses. It would be inaccurate to say they were commonplace, but neither are they rare. Almost every major university has had incidents such as these. Sometimes they made local papers, occasionally the national press. Sometimes they were undoubtedly spiked for considerations of "sensitivity." At the University of Kansas, for example, a group of black students descended on a white fraternity with clubs and other weapons shouting threats and insults after a black student had allegedly been insulted there." Fortunately, there was no violence in spite of the fact terroristic threats were apparently made. Neither the campus press or the local daily mentioned the incident. One has to wonder how many times such incidents occur nationwide in a year. Surely, they contain the elements of a "hate crime." In virtually every case, however, we can be sure that issues of "sensitivity" are raised, along with fear of "backlash" and "misunderstanding." If one includes crimes in which an awareness of the victim’s race or ethnicity is a factor, then most interracial rapes, armed robberies and assaults might be considered "hate" crimes. Blacks are highly over-represented as perpetrators of the vast majority of these offenses relative to their representation in the population. One could even say that the alleged rage that blacks feel toward "white" society is a race-specific rage, directed at individual victims on the basis of racial identity and, as we see in the Colin Ferguson case, often has the same tragic consequences to innocent individuals as any 1920s-lynching in Alabama. Editorial writer Samuel Francis cites the 1992 case of a 15-year-old white girl who was raped by a gang of young blacks, who allegedly told her they picked her because she was "white and perfect." According to Francis, "The story made the tabloid headlines and passed from human memory the next day." Obviously disillusioned, he adds, "Hate crimes aren’t for white people. They are the special political and legal privileges of racial and religious minorities, and they are weapons by which white people can be bullied, bludgeoned, beaten, prosecuted and persecuted into shutting up about race and the cultural institutions that attend it." When an even-handed approach is denounced and avoided, of course, the issue becomes highly politicized. Powerful racial and ethnic interest groups have compelling reasons to manipulate the rules and to keep up an appearance of perpetual victimhood. Not only is it extremely useful in promoting a political agenda, but it can have considerable financial benefits to the "victims" as well. Many hate crime statutes have provisions for recourse in the civil courts for monetary damages. These allow victims to sue for special, general, and punitive damages -- a powerful incentive for professional victims and hoaxers. Hate Crime McCarthyism Anyone with a memory of the tensions on some campuses during the 1950s should be sensitive to the issue of "McCarthyism," with its connotations of "subversive" ideas and thought crimes. One’s friends and associates, membership in organizations, personal habits, reading material, offhand comments, even the jokes one laughed at, could be grounds for suspicion of radical and un-American tendencies. Many of the government investigations undertaken during this period focused directly on the defendants state of mind. Any bit of ideological contamination required explanation. Criticism of American policies aroused suspicions. Mere liberals were taken for socialists, and socialists were taken for communists. A careless comment to the wrong person could be a costly mistake. Professor Jacobs, quoted previously, also observed that since state of mind is pivotal in establishing a "hate-motivated" offense, trials may turn into inquisitions on the values, attitudes and opinions of the defendants, not unlike a 1950’s McCarthyite investigation into the values, attitudes and opinions of suspected subversives by the House Un-American Activities Committee. He cites a case in which a man suspected of a hate-motivated offense was grilled about his relationship with a black neighbor. Did he ever have dinner with her, invite her for a picnic, or go with her to a movie? It’s quite likely that the magazines and books a defendant reads, present or past memberships in organizations, religious and political beliefs, as well of discovery. In his Reason article, Jacob Sullum quotes Kevin O’Neill, who wrote the American Civil Liberties Union’s brief against the Ohio hate speech law. A Although different from hate crime legislation because it penalizes speech unrelated to criminal conduct, the law raises related civil liberties issues. O’Neill says "Our basic concern about hate-crimes legislation in general, and Ohio’s ethnic intimidation law in particular, is that it is an effort by government to punish people for their ideas." Indeed it is, and no amount of weaseling or doubletalk can obscure that fact. George Orwell himself could not have imagined a more diabolical scenario for the legitimization of "thought crime" in a supposedly free society. l Basil Talbott, "Senate Joins Fight Against ’Hate Crimes,’" Chicago Sun-Times (9 February 1990). 2 "LAPD Policy on Hate Crimes," B’nai B’rith Messenger (27 July 1990). 3 Jerry Seper, "FBI Chief Pledges to Make Hate-Crimes Data a Priority," Washington Times (5 April 1991). 4 New York Daily News, 4 July 1990. 5 James C. Fitzpatrick, "Teen Charged in Wall Defacement," Kansas City Times (22 September 1989). 6 A "Decision on Hate Crimes Ban Elicits Mixed Reaction," Jewish Week (3 July 1992). 7 "Tough Bias-Crime Penalties are Upheld," Law Enforcement News (15 June 1993). 8 Ibid. 9 James B. Jacobs, The Public Interest (Fall, 1993). 10 Peter Applebome, "Rise Is Found In Hate Crimes Committed By Blacks," New York Times (12 December 1993). 11 "Comment: Bad Motives," The New Yorker (21 June 1993). 12 Ibid. 13 "N.Y. Gunman Indicted on 93 Counts," Chicago Tribune (19 January 1994); Lena Williams, "After Train Killings, A Rise Of Black Anxiety, New York Times (12 December 1993). 14 Lena Williams, Op Cit. 15 Associated Press, "Attacks At Brown May Bring A Request for Federal Help," New York Times (18 October 1989). 16 Andrew Herrmann, "Officials To Meet On U. of I. Attacks," Chicago sun-Times (10 October 1991). 17 Lou Oritz, "Students, others attacked in Champaign gang ’rite’," Chicago Sun-Tim (9 October 1991). 18 Samuel Francis, "Feeding Hate To The Crime Colossus," (Washington Times (4 February 1992). 19 Jacobs, Op Cit. 20 Jacob Sullum, "What’s Hate Got To Do With It?," Reason (December 1992).