The recognition and adoption of hate crime laws in the U.S. can be traced back to the 1980s and 1990s (Naidoo, 2016). In several kinds of literature, the recognition of hate crime laws goes back to the 19th century right after the America Civil War where the Congress legislated both federal and state civil-rights statuses with a goal of protecting vulnerable groups who succumbed to victimization due to their race or previous status as slaves (Naidoo, 2016). The second period is taken to be a mid-twentieth century, the period following the end of the Second World War to the Civil Rights Movements (Naidoo, 2016). Regardless of the period when hate crime laws were initiated, their recognition paved the way for the different categories of criminal laws in the US and internationally (Naidoo, 2016). The current hate crime laws in the US identifies a broad spectrum of biases and prejudices. In spite of the international trends and patterns of hate crimes, especially in the Western countries that are democratic, other countries are yet to adopt such laws. In this paper, we discuss the various hate crime laws have been recognized in the US, analyze the relevance and effectiveness of these laws and how they have been applied in three case scenarios.
Hate Crime Laws
According to John M. Gore, the Acting Assistant Attorney General in the U.S. Department of Justice, the first federal hate crime law was legislated in 1968 by the Congress and signed into law by the then President Lyndon Johnson (U.S. Department of Justice, 2019). The 1968 statute guided that it was a criminal offense to apply or portend to apply coercion to inhibit deliberately any individual because of their color, religion, national origin, or race. Moreover, it was a crime to interfere with an individual participating in a federal safeguarded activities such as employment, education, travel, helping another individual or enjoying civic accommodation due to their defining characteristics. Several other acts were passed by the Congress in the protection of the general population without any discrimination. Nevertheless, it is in 2009 that former U.S. President Obama signed the Matthew Shepard and James Byrd Jr. Hate Crime Prevention Act. This expanded the federal government description of hate crime, improving the legitimate tools that prosecuting attorneys could use in jurisdictional matters. The current hate crime laws in the US are discussed below.
The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009, 18 U.S.C. § 249
According to this Act, the federal government states that it is a crime to deliberately cause physical injury, or try to achieve this by use of a dangerous weapon due to the victims’ perceived or actual color, race, national origin, or religion. Additionally, the Act extends the federal government hate offense prohibition to crimes executed due to perceived or actual national origin, religion, sexual, or gender orientation, disability of any individual and gender identity. This act is the first to allow for the federal criminal prosecution of perpetrators of hate crime.
Criminal Interference with Right to Fair Housing, 42 U.S.C. § 3631
According to the Act, is it a lawbreaking to apply or portend to apply potency in interfering with the housing rights of an individual due to their color, race, religion, disability, sex, national origin and family status. In addition, it is a crime to intimidate any person from participation in any event on accounts of their color, familial status, national origin, sex, handicap, or race (U.S. Department of Justice, 2015).
Damage to Religious Property, Church Arson Prevention Act, 18 U.S.C. § 247
The statute considers it an offense to intentionally damage, mutilate, or destroy a religious real possession due to its nature, where the offense interferes with foreign commerce or interstate, or due to color, race, ethnic characteristic of the individuals connected with the property. Moreover, this statute criminalizes any deliberate obstruction using threat of applying force or force to an individual in the process of that individual’s right to exercise their religious beliefs (U.S. Department of Justice, 2019).
Violent Interference with Federally Protected Rights, 18 U.S.C. § 245
According to the Act, it is a criminal offence to apply or portent to apply coercion in deliberate interference with an individual’s life due to their color, race, national origin, religion, or due to the individual participation in a federal protected activities such as employment, public learning, enjoyment of accommodations for the public, travel, jury service, or helping another person to do so (U.S. Department of Justice, 2019).
Hate Crime Statistics Act (HCSA) of 1990
The Act mandates the Department of Justice to acquire or gather hate crime data that indicate prejudices due to race, gender, ethnicity, sexual orientation, religion, and nationality from law enforcement agencies such as the FBI throughout the country and to ensure it publishes annual summaries of the findings.
Conspiracy against Rights, 18 U.S.C. § 241
According to the statute, it is illegal for two or more individuals planning or conspiring to inflict injury, intimidate, or threaten another individual in any district, territory, or state as they exercise their freedom, rights, or privileges protected for them by the U.S. Constitution (U.S. Department of Justice, 2019).
Debate on Hate Crime Laws
Crime perpetrated against minority groups is filled with numerous accounts of human rights violations, genocide, and other atrocities motivated by race, religion, ethnicity, gender, and sexual orientation. Nevertheless, the efforts to legislate laws that impose strict penalties on crimes inspired by hate gained attention in the recent times. The enactment of these laws presents mixed reactions on whether it is right to penalize an individual due to their motives and beliefs. According to DiPompeo (2008), most critics of hate crime legislations content that it is right to criminalize any actions that depict violence and it is not right to impose additional penalties for an individual’s speech or thoughts. In an NPR News interview between Michel Martin and Paul Butler, a federal prosecutor conducted to debate the necessity of hate crime laws, Butler stated that:
So it does seem like we’re getting awfully close to punishing thought crimes. I think bigotry, including homophobia, is wrong, but I think, in a free society, you have the right to think what you want, no matter how wrong it is (National Public Radio, 2012).
Another issue that critics defend is that hate crime complaints presents difficult situations of determining which groups are protected by these legislations. Additionally, it is the tendency to conceive other identities founded on group affiliations like occupation, political party, and social status. Another scenario that attracts arguments is that violence towards the poor is hate crime, which might not be the intent of the offender. Henceforth, while many critics argue that crime laws are ineffective, some agree that they are useful in ensuring justice.
Therefore, as many groups become defined as under legislative protection, the distinctive essence of hate crime penalties lessens while the effectivenes of the hate crime laws becomes questionable.
According to DiPompeo (2008), hate crime laws are effective in addressing hate-related crimes. For example, when a bias-motivated offense is executed, the community of the victim feels general victimization of their group. They see themselves vulnerable, isolated, fearful, and unprotected by the law. The crimes as these yield to reprisals and devastating spirals of escalating inter-group violence and tensions. In such a case, the implications of the crime become larger than the primary impact on the victim. Additionally, Turvey (2018) argues that hate crime legislation is not about punishment to people for their speech or beliefs, but a way to punish criminals for their actions. Nevertheless, the U.S. Supreme Court had in 1993 upheld Wisconsin’s hate crime legislation (under ADL’s Model Statute) because the law protected the freedom of speech, and there was no legislation to criminalize hate speech (DiPompeo, 2008). However, recent developments in hate crime laws such as Shepard-Byrd Act have cleared this bias and terms hate speech as a crime (U.S. Department of Justice, 2019).
Much as hate crime laws have been effective in addressing hate-based discriminatory actions, some areas have not been looked. First is that the U.S. Constitution guarantees to every person the freedom of speech whereas the freedom of religion would tend to prohibit any charges on the same. For instance, a religious leader preaching against homosexuality is committing hate crime on individuals right to choose their spouse while at the same time is protected by the freedom of religion. Secondly, these statutes only prosecute criminal actions that target individuals due to their religion, race, sexual orientation, ethnicity, etc. In such a case, preaching cannot be termed as a criminal act. Thirdly, federal statutes would protect such activities (DiPompeo, 2008).
Three Examples of Hate Crimes
The Portland Stabbing (Lopez, 2017)
The event was one of the many anti-Muslim attacks widespread in US that were escalated by the Trump’s ban on all Muslim nations. A mentally disturbed loner, Jeremy pursued an ideological mission against human life. As clinical reports emerged, Jeremy had a borderline personality disorder, a mental condition that results to behavioral, relationship, and mood instability (Smith, 2020). The suspect had distorted perceptions, disturbed relationships, harmful, reckless and impulsive actions, excessive emotional responses and developed dangerous ideologies against human life. Despite clear evidence of his involvement in many crimes since his childhood, the police had refused to charge him initially. Jeremy stabled two civilians after they attempted to intervene in helping a Muslim girl that he was harassing. He had a strong negative ideology against Muslims.
During his arraignment in court, Jeremy yelled, “Free speech or die, Portland. You got no safe space. This is America, get out if you don’t like free speech” (Wasserstrom, 2017). Besides the murder cases, the authorities had to look into hate crime law to determine whether Jeremy committed a hate crime. For the aggravated murder case, Jeremy could face death, life imprisonment, or true life. Conversely, Jeremy was found to have committed a hate crime on an individual based on their religion. He was charged with two accounts of second-degree intimidation. According to the Oregon Law, an individual commits a crime when they intentionally threaten to inflict injury because of another person’s color, race, national origin, religion or disability. His case is yet to be decided given the social and mental problem he faces (Wasserstrom, 2017).
The Claremont, New Hampshire Hate Crime (Love, 2017)
According to the New York Times report, some white teenagers attacked an 8-year old African-American boy. After putting ropes around his neck, the teenagers told the boy that it was his turn. After tying a rope around his neck, one of the teens came and pushed him off the table, leaving him hanging, and no one of them attempted to help him. Such an incident left many questions on how deep hate has engraved the American society. Teenagers and children executing crimes of bigotry, prejudice or bias according to one’s ethnicity, gender, race, sexual orientation, and disability has become a disturbing problem (Love, 2017). According to information gathered by the federal government between 2004 and 2015, about 15% of criminals in serious hate crimes is at the age of 17 and younger, while about 17% were between the age of 18 and 29 (Love, 2017). The report indicated that young people are more predisposed to hate crimes than the elderly. They have been predisposed to unconstrained hate and see nothing big about it. The group of white teenagers that attacked the African-American child indicated the intensity of hate that even young people have developed. Whereas there are no clear juvenile hate crime laws, it is critical for parents to show intolerance to such behavior to prevent their escalation to serious levels. Moreover, Naidoo (2016) argues that exposing children to hate crimes at a young age is dangerous, and it propagates to result to mass shootings currently witnessed in the US.
The Orlando Shooting (Stapleton, 2016)
There are mixed feelings and thoughts on the Orlando mass shooting. Others describe the incident as an act of hatred on LGBTQ+ community while President Obama termed it as an “act of terror and hate.” The main concern, however, is the fact that how officials label extremist crimes is a major consideration on how these criminals are charged. According to Stapleton (2016), such labels are symbolic acknowledgments by the federal government about the harms that terrorists inflict on the nation and certain social groups through hate crimes. The majority of hate crimes in the United States are not classified as terrorist actions as they do not have extremist or violent components. Most hate crimes in the US are committed by the youths who do not have intentions to further any ideologies but rather commit the hate offenses for the thrill that comes with them. The terrorist acts in the U.S. cannot be termed as hate crimes as they are associated with subsequent violent and ideologically inspired attacks in the US and do not specifically target any person or religion. Such acts target random civilians, U.S. government, and the American society as a whole. Nonetheless, some attacks qualify to be termed as both terrorist and hate crimes. For instance, the mass shooting at the Pulse nightclub in Orlando by Omar Mateen represents one example that carries both facets. The attack was violent and committed to rightists such as the Al-Qaeda or the ISIS loyalists. The Orlando attack targeted racial, sexual orientation and religious minority. Omar Mateen took his own life, and his wife is facing charges.
FBI Hate Crime Statistics between 2005 and 2017
The Federal Bureau of Investigation collects data based on a Uniform Crime Reporting (UCR) Program (race, religion, gender, ethnicity, and disability) leading to commitment of a hate crime (Federal Bureau of Investigation, 2018a). The data is collected throughout US states on hate crime prevalence rates, combined, analyzed and standard databases created. Using the UCR program, it becomes easier for the FBI to account for the single-bias and multiple-bias rates of hate crimes. In the data above, the single-bias incident rates are when one or more crimes are motivated by one bias (race, religion or gender, etc.) while the multiple-bias incidences are when two or more biases inspire one or more crimes. It is evident that hate crime due to a single bias steadily increased between 2005 and 2008 (8795, 9642, 9527, 9683), then steadily decreased between 2009 and 2014 (8199, 7697, 7151, 6927, 5468) and finally steadily increased again between 2015 to present (7663, 7277, 7041) (Federal Bureau of Investigation, 2018a). On the other hand, multiple-bias incident hate crime shows an unsteady pattern. Of the five biases indicated in the table, race tops in the number of hate crimes reported followed by religion, gender, ethnicity, and disability.
In 2005, an assessment of 8,795 single-bias incident rates showed that approximately 54.7% of hate crimes were inspired by racial biases, 17.1% by religious biases, 14.2% by sexual orientation biases and 13.2% by ethnicity (Federal Bureau of Investigation, 2018a). Of the total 8,804 hate crime incidents reported, 48% were due to intimidations, 30% due to simple assaults, and 20% due to aggravated assaults (Federal Bureau of Investigation, 2005). In 2006, the analysis of 9,642 single-bias incidents indicated that 51% of hate crimes were inspired by racial biases, 18% by religious biases, 15% by sexual orientation/gender, 12% by ethnicity/disability and national origin (Federal Bureau of Investigation, 2018a). Intimidations amounted to 46%, simple assaults to 31% and aggravated assaults to 21%. In 2007, of the 9,527 single-bias cases reported, 50% was due to racial biases, 18% by religion, 16% by sexual orientation/gender, and 13% by disability/ethnicity/national origin (Federal Bureau of Investigation, 2018a). For 2015, there were a total of 7,663 single-bias hate crime cases where 59% were due to race/ethnicity biases, 19% due to religious biases, 17% due to sexual orientation/gender, and 0.4 due to disability. In 2016, there were 7,277 hate crime incidences where 58% were due to race/ethnicity biases, 21% due to religious biases, 16% due to sexual orientation/gender biases, and 0.5% due to disability (Federal Bureau of Investigation, 2018a). In 2017, of the 7,041 hate crime incidents, 60% were due to racial/ethnicity biases, 20% was due to religious biases, 17% due to sexual orientation/gender, and 0.6 due to disability (Federal Bureau of Investigation, 2018a).
By looking at the data, it is clear that hate crimes due to racial bias have increased from 2005 to present by a significant percentage. In addition, there has been a rise in hate crimes due to religious biases whereas hate crimes due to sexual orientation and gender seem to remain steady over time. Hate crimes due to disability bias have decreased over time by a significant percentage indicating that majority of individuals has come to accept and support those with disabilities. Therefore, looking at the data, we can argue that race remains one of the biggest triggers of hate crimes in the US. According to Reuters (2017), hate crimes have been rising steadily since 2015 due to increasing racial tensions. Most of these tensions are instigated by President Trump’s constant rhetoric over Muslims, the Blacks and immigrants. In most of racial- and religious-driven hate crimes, African-Americans, Muslims and the Jews are the most targeted. This confirmed in most of the FBI reports (Federal Bureau of Investigation, 2018b).
In 2016, law enforcement agencies in the U.S. reported 7,615 victims of hate crimes. Out of these victims, 106 were subjected to victimization in different multiple-bias incidences. There were mandatory obligations of FBI to gather data on hate crimes involving juveniles under the Shepard-Byrd Act of 2009. From 2013, the FBI started reporting victims from 18 years and above and those under the age of 18. Out of 4,876 victims of hate crime reported by 2016, 4,311 hate crimes victims involved adults while 565 were juveniles. The race bias category was increased from four to five (African-American, White, Alaska Native, American Indian, Native Hawaiian, and Asian).
Department of Justice Findings on Unreported Hate Crime in the U.S.
The Department of Justice (2018) findings indicate the United States residents experience approximately 250,000 hate crime victimization every year from 2005 and 2017 where the majority of these cases go unreported. During the twelve year period, there are no significant changes in rates of violent hate crimes victimization. In the table above, most unreported cases are those involving racial bias. Nevertheless, the current unreported cases are few compared to previous years, and the pattern has been steadily decreasing with the recent report indicating a total of 2,698 unreported cases of racial bias compared to 4,768 in 2005 (Department of Justice, 2018). A similar trend is observed with the other biases apart from the disability bias that shows slightly steady figures. The disability level of unreported hate crime cases indicates that they still face victimization despite a nationwide disability awareness that disability is not inability.
According to the Bureau of Justice Statistics survey, a nonfatal crime such as rape, aggravated assault, sexual assault, and simple assault happen against individuals under the age of 12 or older and who are disabled (Harrell, 2016). The disability, in this case, is classified as vision, hearing, cognitive, independent living, self-care and ambulatory. Most of the unreported hate crimes motivated by disability bias has been slightly changing up and down with an average of 71.8 cases unreported (Department of Justice, 2018). On religious bias, the table above shows a steady decrease of unreported hate crime incidents from 1,400 in 2005 to 809 in 2017 (Department of Justice, 2018). The decrease according to the Department of Justice is attributed to the increase in awareness about religious freedom and the interpretation of the Constitution. America has experienced widespread gender sensitization campaigns that have led to the reduced hate crime unreported cases related to gender. The American Constitution protects the rights of every individual regardless of the ethnic composition. Consequently, the number of people has been increased approaching authorities to report such cases. Of the five biases, hate crime due to race bias is the most unreported since 2005 to present while disability bias has few unreported cases (Department of Justice, 2018).
The Department of Justice (2018) statistics indicates that of every five hate crimes committed, only two are reported. According to this department, the main reason for the unreported cases is that such victimizations are handled differently such as through a non-law enforcement official or privately. Moreover, approximately a quarter of victims of hate crime who resorted not to report such incidences had the belief that police would not listen to them or did not like to be bothered or involved. In addition, others believed that the police would cause suffering to the victims or will handle the cases ineffectively. Nevertheless, some (one of five) claimed that victimization was unnecessary to take to the police (Department of Justice, 2018).
Comparison of FBI and Department of Justice Data on Hate Crime
FBI and the Department of Justice are the primary sources of data on hate crimes committed in the U.S. They all describe hate crime under the Hate Crime Statistics Act (28 U.S.C. § 534) (Masucci, 2017). Both institutions outline racial bias as the leading cause of hate crimes in the United States. Whereas hate crimes incidents due to racial bias outnumber all other motivating biases, it is clear how racial prejudices remain the leading cause of acts of hate in U.S. Most racial cases, according to Federal Bureau of Investigation (2018b), are witnessed between the whites and the African Americans. Nonetheless, the statistics by the FBI does not specify the ethnic composition of the reported hate crime incidents. From 2005 to 2017, the FBI shows an unsteady decrease in the number of hate crimes due to mentioned biases. The data indicate that much as most hate crimes are motivated by single bias, there are instances where hate crimes can be motivated by multiple biases such as during the Orlando shooting where Omar Mateen attacked a gay nightclub. According to investigation reports, Omar was motivated by both sexual orientation and religious biases (Federal Bureau of Investigation, 2018a). Conversely, data from the Department of Justice does not account whether the unreported cases were hate crimes due to single-bias or multiple-bias. Even so, we cannot underscore the fact that the two data show a linear correlation in hate crime trend and pattern over the duration indicated. The FBI data show disability bias to be the least motivating bias towards hate crime, which agrees with that of the Department of Justice where disability-based hate crimes are lower. Both institutions indicate the widespread nature of hate crimes in the US and offer an explanation of the recent mass shootings by lone suspects. Most of the data used by the Department of Justice is sourced from the FBI and the National Crime Victimization Survey (NCVS). Both institutions claim that sexual minorities (LGBT), African-Americans, Jews, and the Muslims are the major victims of hate crime. Nevertheless, the data from both institutions show an annual fluctuation because most of the local agencies that FBI relies on data sourcing report on a voluntary basis. The data from these two institutions are correct, there is a group of people who think that most of these data on hate crime are fake. For instance, in a report by Turvey (2018), he says that many reporters of hate crimes abuse the definition of hate crime and authorities tend to believe them due to extreme feelings and beliefs linked to hate crimes. Hence, the result of this abuse is the callous draining of public resources secluded for real-crime incidents. Nevertheless, FBI and the Department of Justice do not use falsely reported hate crimes.
Hate crime infringes a victim’s rights, inspired by intolerance, hostility, and other prejudices towards the victim’s creed, religion, race, national origin, gender, disability, and sexual orientation. Even so, most hate crimes in the U.S. are politicized where some refute or uncritically defend any victim’s statements when they seek help as victims of hate crimes. To protect the victims of hate crimes against such acts, the U.S. Congress has legislated several hate crime statutes or laws. Some of these laws include The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009, 18 U.S.C. § 249; Criminal Interference with Right to Fair Housing, 42 U.S.C. § 3631; Damage to Religious Property, Church Arson Prevention Act, 18 U.S.C. § 247, Violent Interference with Federally Protected Rights, 18 U.S.C. § 245; and Conspiracy against Rights, 18 U.S.C. § 241. As many groups claim to be protected by these legislations, it becomes difficult to distinguish between hate crimes and other crimes. It is for this reason that many assert that hate crime legislations are not effective. One reason they give is that these legislations have not alleviated hate crime rates. For instance, they argue that hate crime laws have not helped reduce racism, religious-based crime or crimes due to country of origin.
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