by Jack McDevitt and Jack Levin
The measure of a backlash is often reflected in efforts to reverse previous legislative decisions for example, opponents of affirmative action mustered enough support in California to pass Proposition 209 and more
recently, Washington state's Proposition 200. Perhaps inspired by their anti-affirmative action brethren, the forces of resistance to hate crime laws are now also making their move into mainstream America.
Judging by the quantity of newspaper and magazine editorials taking a minimalist point of view, it appears that we are about to do for hate crime legislation what we are in the process of doing for affirmative
action namely, to eliminate a much needed government policy for the sake of ideology.
The latest incarnation of the backlash has targeted efforts to pass a bill at the federal level which would offer assistance
to local law enforcement in hate crimes motivated by sexual orientation, disability, or gender. Legal analysts who support this viewpoint argued that federal legislation is unnecessary, redundant, even
counterproductive.
This argument is a half-truth: While it is true that 39 states already have some kind of anti-hate crime statute, such state laws usually do not offer the protection offered by the proposed federal
legislation. Most states protect victims who are targeted because of their race, religion, and ethnicity, but only 18 [in addition to California] include victimization by sexual orientation and another 19 cover
victimization by disability.
Affirmative action is perceived, rightly or wrongly, as giving special treatment to certain groups at the expense of other groups. Those who would abolish hate crime laws express
similarly misguided concerns. They claim that hate crime statutes are divisive because they protect only "special groups" such as African Americans or gays. Nothing could be farther from the truth. In
fact, according to every state hate crime statute as well as the proposed federal version, each and every American potentially receives protection. Such statutes criminalize acts that are motivated by the fact
that victims are different from the perpetrator. Thus, heterosexuals are as likely to be protected as gays and lesbians. Whites who are attacked are as likely as blacks or Asians or Latinos to be protected
by the law. Of all the racially motivated incidents reported to the FBI in 1996 (the most recent data available), some 20 percent involved white victims. In Todd Mitchell vs. The State of Wisconsin, the US
Supreme Court upheld the constitutionality of hate crime statutes in a case involving an attack on a white victim by a group of African-American teenagers.
Critics of hate crime laws also argue that by passing
legislation at the national level, the federal government will take jurisdiction away from local authorities in hate crime cases. While it is unlikely that the FBI will add significantly to its staff in this area,
there is indeed a legitimate concern about the most appropriate use of limited federal resources.
At the last International Association of Chiefs of Police meeting in Salt Lake City, Attorney General Janet Reno
discussed her belief that the federal government should have a limited role in hate crime prosecutions. According to the Attorney General, the FBI will continue to offer technical assistance and investigative
support to local law enforcement but does not intend, in many cases, to initiate federal prosecutions. Reno's intention is backed by history: the Justice Department has prosecuted relatively few hate crime cases
between 1992 and 1997 (during this period the FBI documented more than 20,000 local hate crime cases). In the tragedy in Jasper, Texas where James Byrd was dragged to his death behind a pick-up truck, the federal
government only offered support to local law enforcement. All prosecutions in the cases have been handled locally.
Hate crime legislation can serve as a deterrent. Most hate offenses are committed by a
group of perpetrators who are not unlike the four young persons allegedly involved in the gay-bashing and murder of Matthew Shepard in Laramie, Wyoming. Typically, there is one leader and a number of other young
people who go along with their friends, because they don't know how to get themselves out of a bad situation. Having a strong hate crime law that is actively prosecuted may not dissuade a hardened hatemonger, but
it may give the less committed participants in a bias crime enough reason to convince his buddies that the assault on a vulnerable victim is simply not worth the risk.
Whether in Wyoming or at the federal level, there
is every reason to support legislation. Most hate crimes are not murders they are intimidation and threats that often escalate into much worse unless they are stopped in their tracks. And that is
precisely the point of hate crime legislation it is designed to send a zero-tolerance message to both perpetrators and victims. To the perpetrators, such laws say loud and clear that Americans reject hate in
all of its forms and that they will no longer tolerate intolerance. To victims, hate crime laws suggest that law enforcement authorities will aggressively attempt to apprehend the offenders, even if it means
bringing in the FBI.
Laws play many roles in our society. Legislation allows us to prosecute those who commit acts against society, but legislation also reflects the values that the members of a society
hold. Similarly, hate crime legislation reflects our collective belief that we Americans are stronger when all or our people have an equal opportunity to participate in democracy.
Perhaps for the first time in
history, Americans have taken an initiative in reducing bigotry and prejudice, not because we are in the midst of a crisis, but simply because it is the right thing to do, because it will protect vulnerable people from
harm. It would be a shame to abandon this basic American principle.
[Editor's Note : Another Key motivation for retaining hate crimes laws is that without hate crime legislation there would be no way to
determine the level of intergroup conflict occurring within our communities. This information is critical towards identifying where resources and efforts have to be allocated to prevent the escalation of racial, ethnic,
religious, and other intergroup tension.]
Jack McDevitt is co-director of the Center for Criminal Justice Policy Research and Jack Levin is the Brudnick Professor of Sociology and Criminology, both at
Northeastern University. They are co-authors of Hate Crimes: The Rising Tide of Bigotry and Bloodshed published by Plenum Press.
