The Debate Over Hate Crime Laws

Hate crime legislation was originally drafted in the mid 80's to encourage people from a broad range of personal and professional identities to work cooperatively to identify intergroup conflicts and act to ease tensions. As with any relatively new system of laws there is opposition, and a growing body of opinion is emerging that hate crime laws violate free speech, and that they promote politics based on personal identities rather than politics based on visions of unity.  These arguments have resonated with some of us within CAHRO so it is worth reviewing the arguments to determine whether they justify the repeal of anti-hate crime laws.   

CAHRO Board Member Joe Hicks, Director of the Los Angeles City Human Relations Commission and CAHRO Director Fred Persily argues both sides.  Read Joe Hick's  argument.

In Defense of Hate Crime Laws
by Fred Persily, CAHRO Executive Director

Criminal Penalties and Deterrence

The argument that people who commit hate crimes are not deterred by hate crime laws is undoubtedly true.  Obviously, anyone who commits a crime is not deterred by the penalties for that crime, but would anyone argue that since laws against robbery do not stop robberies they should be repealed?  Our common law system of criminal justice was created to provide the perception of a fair system for punishing wrongdoing to avoid people taking the law into their own hands and not because there was an expectation that all crime would be deterred. Unfortunately, the claim that longer sentences deter criminality is a myth perpetrated by politicians looking for votes which has no basis in reality.  If capital punishment has not deterred first degree murders can there be an expectation that a lesser punishment will deter any crime?  The determination of whether hate crime laws ought to be repealed should be based on whether the purposes for enacting those laws are worthwhile and are being met, not on their deterrence value.

Hate crime laws surface intergroup conflicts in a community and stimulate actions to prevent and respond to them

Prior to the enactment of hate crime laws beginning in the mid 1980's, there was no way for the public to know about intergroup conflicts and violent acts of bigotry occurring in their own community unless they were reported in the media.  Police generally classified incidents of racial, ethnic, and religious terrorism and harassment under the headings of suspicious circumstances or malicious mischief.   For example, in one San Francisco East Bay community where African-Americans were undergoing daily harassment in the form of graffiti, ethnic slurs, children being chased home from schools by other students wielding baseball bats, and shots being fired into homes, no one but the victims and the officers who responded to the crimes were aware of the reign of terror.  This state of affairs was not the exception in this community, it was the rule across the nation.

The Commission on Racial, Ethnic, Religious and Minority Violence, established by California Attorney General John Van de Kamp in 1984, gave birth to the terms "hate violence" and "hate crimes".  It found, based on hearings held throughout California, that bias-motivated harassment, intimidation, assaults, and even murders, were occurring on campuses and in communities in every region of the state but that there was no way to determine their nature and extent. The desire to help people become aware of intergroup conflicts and bias-motivated crimes occurring in their community so that they could join together to prevent and respond to them led the Commission to recommend hate crime laws.  Other states and foreign nations followed California's example and have found hate crime laws an effective tool for identifying and responding to intergroup conflicts. 

The laws in California have stimulated people of all identities from the "left", "center", and "right" to form networks to combat bigotry in most of the state's population centers.  Networks comprised of community organizations, schools, law enforcement, the faith community and others have developed ways to respond to hate crime incidents and have also developed bias-motivated violence prevention programs through collaborative efforts.  At this early stage of development there is a great range in the quality and effectiveness of these prevention programs.  Despite skeptism some programs have demonstrated success.  There is a growing effort to evaluate the impact and progress being made through the identification of programs that meet their goals and objectives.  CAHRO has been careful in its response to requests for referrals to indicate whether a program has been independently evaluated as effective.

Hate crime laws do not violate free speech

Hate crime laws in California were carefully crafted to outlaw conduct rather than ideas to avoid treading on first amendment protections.  They do not criminalize beliefs, but make illegal the conduct that is motivated by those beliefs.  The distinction is important and one that has been long recognized in the United States.  America has a system of federal and state laws outlawing discriminatory treatment against people in employment, housing and the provision of services.  Those laws like those against hate crimes are not interpreted as violations of first amendment rights because they prohibit conduct not speech that is motivated by bias.  The Supreme Court has held that hate crime laws similar to those in California are legal precisely because they outlaw conduct rather than speech, to reason otherwise would be to argue for people to have a right to discriminate against each other on the basis of race, religion, gender, etc.  The argument that hate crime laws tend to stifle bigoted comments even though they do not outlaw it may or may not be valid, but that is certainly not a reason to abandon hate crime laws.

Hate crime laws are not anti-white

In the most recent national reports of hate crimes about one in every five incident reports was filed against a person of color for attacking a white person based on their race. In California and the nation as a whole the number of reports of hate crimes based on race that were perpetrated against whites was second only to African-Americans.  Neither law enforcement nor white victims who report the incidents are likely to subscribe to the notion that hate crime laws are anti-white.  Rather than deepening divisions among the populace, hate crime laws deliver the message that artificial divisions based on bigotry are wrong and will be punished when it leads to criminal actions.

Hate crimes are different than other crimes

Most crimes victims, and those close to them, need to have confidence that law enforcement is doing everything possible to apprehend the perpetrator.  Cases involving hate crimes require more.  The impact of hate crimes not only affects the immediate victim but everyone who shares the identity that motivated the hostility. The Jewish and Filipino communities throughout the state and nation were strongly impacted by the attacks on the Jewish center and the slaying of Joseph Ileto in San Fernando Valley.  The gay community was likewise impacted by the attacks on Matthew Shepherd and two gay men in Redding. 

A strong response by police to a hate crime might enable those who share the identity of the victim to feel somewhat better, but they would still harbor the fear that the perpetrators represent a reservoir of people who share this hatred and in sharing the identity of the victim, they could be targets of this hatred.  Hate crimes need a strong response from the entire community, not just law enforcement and communities identifying with the victim.  It is important to reassure people that crimes perpetrated against those who share the victim's identity are not condoned by government or by other communities of people.  

The communities in Antelope Valley learned that when hate crimes are not responded to appropriately they can lead to further violence.  Antelope Valley schools and communities were not prepared to react quickly when young racist skinheads launched attacks on African-American students that included assaults with machetes. It was not long before other African-American youth, who were not the immediate victims, but who felt so alienated and angry by the perceived lack of concern by the schools and others in the community that they, in turn, became hate crime perpetrators and began attacking white youth at random. The danger of the incidents exploding into armed racial violence between African-Americans and whites alarmed the community and stirred people to action.  Fortunately, Antelope Valley communities, law enforcement agencies and schools have now formed a network that is prepared to respond appropriately to hate crimes. It is highly doubtful whether any among them would give credence to the argument that hate crimes should be treated like any other crime.

Hate crime laws are growing in popularity because they are recognized as a valuable tool for fighting bigotry.  Arguments that hate crime laws do not work, that they violate free speech, that they are anti-white and promote separatism may resonate with some, but the arguments are refuted by experience and reality.