hate crime canon - UCI

VALERIE JENNESS

THE HATE CRIME CANON AND BEYOND: A CRITICAL ASSESSMENT

ABSTRACT. Although it remains an empirical question whether the U.S. is experiencing greater levels of hate-motivated-conduct than in the past, it is beyond dispute that the concept of ‘hate crime’ has been institutionalized in social, political, and legal discourse in the U.S. From the introduction and politicization of the term hate crime in the late 1970s to the continued enforcement of hate crime law at the beginning of the twentyfirst century, social movements have constructed the problem of bias-motivated violence in particular ways, while politicians at both the federal and state level have made legislation that defines the parameters of hate crime. Accordingly, this article identifies and examines the parameters of a hate crime canon in the U.S., which can first and foremost be described as a body of law that 1) provides a new state policy action, by either creating a new criminal category, altering an existing law, or enhancing penalties for select extant crimes when they are committed for bias reasons; 2) contains an intent standard, which refers to the subjective intention of the perpetrator rather than relying solely on the basis of objective behavior; and 3) specifies a list of protected social statuses, such as race, religion, ethnicity, sexual orientation, gender, disabilities, etc. Arguing that these features constitute the core parameters of the hate crime canon and attendant discourse in the U.S., this article offers a critical assessment of the emergence, institutionalization, and arguable consequences of ‘hate crime’ as a recently developed social fact – in the Durkheimian sense of the word – that is consequential for the politics of victimization in the modern era and the social control of violence against minorities more particularly. KEY WORDS: hate crime, history, politics, social movements, USA, victimisation, violence

‘Ay carumba. Hate crimes against capitalism’! So said Ryken Grattet, a leading expert on hate crime, after hearing about a new bill introduced in Portland, Oregon. Sponsored by Republican Senator Gary George (Newberg), the bill calls for an additional five years in prison for an offender whose crime is motivated by ‘a hatred of people who subscribe to a set of political beliefs that support capitalism and the needs of people with respect to their balance with nature.’1 According to the local press, An earlier version of this paper was presented at Birkbeck School of Law at the University of London in December 2000. Thanks to Ryken Grattet for contributing to the development of ideas contained in this article, and thanks to Leslie Moran and Richard Perry for offering useful comments. This paper was written while the author was a Visiting Fellow at the University of California – Washington, D.C. Center. 1 The Oregonian, February 11, 2001: D01.

Law and Critique 12: 279–308, 2001. © 2001 Kluwer Academic Publishers. Printed in the Netherlands.

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if passed, this legislation would ‘expand the definition of hate crimes in a novel direction: to include the actions of eco-terrorists and critics of capitalism.’2 Interpreted by the national press, this bill would ‘make it a hate crime to smash a Starbucks window or sabotage a timber company.’3 Although the bill would expand Oregon’s current hate crime law to include eco-terrorists and anti-capitalists, Senator George said his real target is political correctness. Senator George’s motivation for introducing this national news-making proposal affirms that the concept of ‘hate crime’ has been institutionalized in social, political, and legislative discourse in the U.S.; moreover, it signals the way in which hate crime discourse has emerged to invite counter discourse and oppositional politics. In contrast, Grattet’s reaction to the bill speaks to the way in which hate crime discourse has taken an arguably ironic turn, thus revealing the contradictions and points of contention over the use of the term hate crime to direct social and legal attention to violence against some types of victims and not others. Taking this bill and Grattet’s reaction to it as both a starting point and an end point, this paper traces the contours of what can now arguably be called a ‘hate crime canon’ in the U.S. Although it remains an empirical question whether the U.S. is experiencing greater levels of hate- or biasmotivated conduct than in the past, it is beyond dispute that the concept of ‘hate crime’ has found a home in social and legal lexicon in the U.S.;4 as a result, the idea that criminal conduct is somehow different when it involves an act motivated by (some types of) bigotry, hatred, or bias and manifest as discrimination against (some) minorities is increasingly accepted. But, why now? Where did the concept ‘hate crime’ come from? How has it been institutionalized? And, with what consequence(s)? This article addresses these historic changes by focusing on the relationship between ‘hate crime’ as a social and legal turn and American culture, identity politics, and law. What, for example, has the hate crime canon meant for how violence is signified and subject to social control in the modern era? What have these changes meant for minority communities implicated in hate crime discourse, as well as those who have gone unnoticed? And, what does all of this say about law and critique, the theme of this journal?

2 Ibid. 3 ‘Legislator Seeks to Expand Hate Crime Laws, Sort Of’, Associated Press, February

20, 2001. 4 V. Jenness and Ryken Grattet, Making Hate a Crime: From Social Movement to Law Enforcement (New York: Russell Sage Publications, 2001).

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1. T HE E MERGENCE OF ‘H ATE C RIME ’ D ISCOURSE IN THE U.S.

In the U.S. the use of the term hate crime is now commonplace in settings as diverse as the evening news, academic conferences, legislative bodies, presidential proclamations, and private conversations. From the introduction and politicization of the term hate crime in the late 1970s to the continued enforcement of hate crime law at the beginning of the twenty-first century, modern social movements – what some would call ‘new social movements’ – have constructed the problem of bias-motivated violence in particular ways,5 politicians at both the federal and state level have made legislation that defines the parameters of hate crime,6 judicial-decision makers have elaborated and enriched the meaning of hate crime as they grappled with questions about the constitutionality of ‘hate crime’ as a legal concept),7 and law enforcement officials continue to investigate, classify, and prosecute bias-motivated incidents that may or may not get deemed hate crime.8 These developments not only attest to the growing concern with, visibility of, and public resources directed at violence motivated by bigotry, hatred, or bias, they reflect the development and institutionalization of discourse on hate crime primarily in the U.S., but increasingly abroad.9

5 V. Jenness, ‘Managing Differences and Making Legislation: Social Movements and

the Racialization, Sexualization, and Gendering of Federal Hate Crime Law in the U.S., 1985–1998’, Social Problems 46 (1999), 548–571; V. Jenness and Kendal Broad, Hate Crimes: New Social Movements and the Politics of Violence (Hawthorne, NY: Aldine deGruyter, 1997); T.A. Maroney, ‘The Struggle Against Hate Crime: Movement at a Crossroads’, New York University Law Review 73 (1998), 564–620. 6 V. Jenness and Ryken Grattet, ‘The Criminalization of Hate: A Comparison of Structural and Polity Influences on the Passage of ‘Bias-Crime’ Legislation in the United States’, Sociological Perspectives 39 (1996), 129–154; R. Grattet, Valerie Jenness and Theodore Curry, ‘The Homogenization and Differentiation of Hate Crime Law in the United States, 1978–1995: Innovation and Diffusion in the Criminalization of Bigotry’, American Sociological Review 63 (1998), 286–307. 7 S. Phillips and Ryken Grattet, ‘Judicial Rhetoric, Meaning-Making, and the Institutionalization of Hate Crime Law’, Law and Society Review 34 (2001), 567–606. 8 E. Boyd, Richard Berk and Karl Hamner, ‘Motivated by Hatred or Prejudice: Categorization of Hate-Motivated Crimes in Two Police Divisions’, Law and Society Review 30 (1996), 819–850; R. King ‘The Organizational Context of Hate Crime Prosecution’, Paper presented at the annual meeting of the Society for the Study of Social Problems, Anaheim, California, 2001; S. Martin, ‘A Cross-Burning is Not Just an Arson: Police Social Construction of Hate in Baltimore Country’, Criminology 33 (1995), 303–326 and S. Martin ‘Investigating Hate Crimes: Case Characteristics an and Law Enforcement Responses’, Justice Quarterly 13(3) (1996), 455–480. 9 V. Jenness and Ryken Grattet, supra n. 4.

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As with other discourses, the discourse on hate crime signifies a new set of subjects, social facts, and social action. The emergence, circulation, and institutionalization of the term hate crime in both legal and social lexicon signals an increasing acceptance of the idea that criminal conduct is somehow different when it involves an act motivated by bigotry and manifest as discrimination; moreover, it signals that some types victims of violence are worthy of additional, or at least uniquely delineated, public and legal concern; and finally, it legitimates state sanctions against a newly signified category of perpetrators of crime. These changes are intimately connected to, if not explicitly derived from, the ways in which ‘hate crime,’ as a modern and U.S. born social fact, has been constructed across multiple institutional spheres of social life in American society. As Jenness and Grattet have shown,10 as a political and legal concept the term ‘hate crime’ has traversed multiple institutional spheres in the U.S. The concept was first developed and promulgated by multiple social movements in the U.S., then it was further defined and institutionalized by state and federal lawmakers, and finally it has passed constitutional muster with U.S. appellate courts and thus continues to be enforced – to greater or lesser degree – by law enforcement officials in the U.S. By the 1990s, ‘hate crime’ had found a home in the most visible venues of national policy discourse in the U.S. For example, in his 1990 State of the Union Message, President Bush urged Americans: ‘Everyone of us must confront and condemn racism. Anti-Semitism. Bigotry and hate. Not next week, not tomorrow, but right now.’11 This declaration was later underscored by John Conyers, Jr. (D-Michigan), member of the U.S. House of Representatives: ‘whether based on sexual orientation, race, religion, or ethnicity, bigotry and the violence it inspires poses a grave threat to the peace and harmony of our communities. The need to alert Americans to this threat is great.’12 These comments, and many others like them, certify ‘hate crime’ as both a socially recognized category of behavior, a legal concept, and a social problem worthy of public concern and collective action. With this socio-legal development in mind, it is useful and timely to ask: how did the U.S. get to this point, especially in light of the fact that violence organized around axes of social differentiation – such as race, religion, ethnicity, nationality, national origin, sexuality, gender, (dis)abilities, etc. – is not particularly new and arguably in decline in the U.S.?13 Addressing this 10 V. Jenness and Ryken Grattet, supra n. 4. 11 G. Bush, ‘State of the Union Address’, New York Times 1990, February 1:D22. 12 Conyers (1992), xv. 13 J. Jacobs and Jessica S. Henry, ‘The Social Construction of a Hate Crime Epidemic’,

The Journal of Criminal Law and Criminology 86(2) (1996), 366–391; J. Jacobs and


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question sets the stage for articulating the parameters of a hate crime canon and offering a critical assessment of such a canon. A. Social movements and issue creation The idea of hate crime emerged through the confluence of several social movement discourses, most notably the black civil rights movement,14 the women’s movement,15 the gay and lesbian movement,16 the disabilities rights movement,17 and the crime victim movement.18 These movements converged to comprise the modern anti-hate crime movement,19 which in turn proved crucial to the development of hate crime in the U.S. (for an overview of these movements.20 Although the modern civil rights movement, the women’s movement, the gay and lesbian movement, and the disabilities movement differ in extremely important ways, they historically have shared a common commitment to publicizing, framing, and combating violence directed at minorities because of their minority status. Prior to the invention and institutionalization of the term hate crime, the modern civil rights movement politicized violence against racial minorities, for example, police brutality against blacks; the women’s movement politicized violence against women, such as rape and domestic violence; the gay and lesbian movement politicized violence against homosexuals, especially ‘gay bashing’; and the disabilities movement politicized violence against persons with disabilities, for example, so-called ‘mercy killings’ against those deemed unfit to live meaningful lives. As these civil rights movements sought to expand legal, economic, educational, and social opportunities for select Kimberly Potter, Hate Crimes: Criminal Law and Identity Politics (New York: Oxford University Press, 1998). 14 R.A. Goldberg, Grassroots Resistance: Social Movements in the Twentieth Century (Belmont, CA: Wadsworth Publishing, 1991); A.D. Morris, The Origins of the Civil Rights Movement: Black Communities Organizing for Change (New York: The Free Press, 1984). 15 M.M. Ferree and Beth B. Hess. Controversy and Coalition: The New Feminist Movement (Boston: Twayne Publishers, 1985). 16 B. Adam, The Rise of a Gay and Lesbian Movement (Boston, MA: Twayne Publishers, 1987); U. Vaid, Virtual Equality: The Mainstreaming of Gay and Lesbian Liberation (New York: Anchor Books, 1995). 17 R.K. Scotch, From Good Will to Civil Rights: Transforming Federal Disability Policy (Philadelphia, PA: Temple University Press, 1984); J.P. Shapiro, No Pity: People with Disabilities Forging a New Civil Rights Movement (New York: Random House, 1993). 18 F. Weed, Certainty of Justice: Reform in the Crime Victim Movement (New York: Aldine, 1995). 19 V. Jenness, supra n. 5; V. Jenness and R. Grattet, supra n. 4; T.A. Maroney, supra n. 5. 20 V. Jenness and Ryken Grattet, supra n. 4.

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minority constituencies, they sponsored anti-violence projects to combat discriminatory violence directed at race/ethnicity, gender, sexuality, and (dis)abilities-based constituencies.21 Developed prior to the emergence of a hate crime discourse in the U.S., these anti-violence projects disseminated a commonly expressed theme: violence is not merely epiphenomenal to the various systems of discrimination; rather, it is central to their maintenance.22 The establishment of this theme in social and legal discourse set the stage for the emergence of a hate crime discourse in the U.S. Equally important, however, were the themes emerging from a considerably less progressive social movement in the U.S.: the crime victim movement. Typically deemed a conservative movement,23 the crime victim movement is comprised of a fairly diverse range of groups, including some of the civil rights groups discussed above, committed to putting forth a basic grievance: victims of crime, especially violent crime, not only need, but are entitled to special assistance, support, and rights as crime victims. From the point of view of those involved in the crime victim movement, ‘the criminal justice system was not perceived as providing certainty of justice for the criminal or the victim.’24 Thus, advocates for victims’ rights argue that legal and extra legal mechanisms are needed to recognize and serve those injured by crime, especially violent crime. One result of this advocacy has been the passage of a ‘crime victim bill of rights’ in almost every state in the U.S.25 The anti-hate crime movement emerged through a fusion of the strategies and goals of several identifiable precursor movements – most notably the now well-institutionalized black civil rights movement, the women’s movement, the gay and lesbian movement, the disabilities movement, and the victim’s right movement – that laid the foundation for a new movement to question, and make publicly debatable, issues of ‘rights’ and ‘harm’ as they relate to a variety 21 R.A. Goldberg, supra n. 14. 22 See, for example, V. Jenness and Kendal Broad, ‘Anti-Violence Activism and the

(In)visibility of Gender in the Gay/Lesbian Movement and the Women’s Movement’, Gender & Society 8 (1994), 402–423; V. Jenness and Kendal Broad, supra n. 5; and K. Broad and Valerie Jenness, ‘The Institutionalizing Work of Contemporary Anti-Violence Against Women Campaigns in the U.S.: Mesolevel Social Movement Activism and the Production of Cultural Forms’, Research in Social Movements, Conflicts and Change 19 (1996), 75–12 for work on the gay and lesbian movement’s and the women’s movement’s anti-violence projects. 23 According to F. Weed, supra n. 18 and T.A. Maroney, supra n. 5, the ‘discovery’ of crime victims in the late 1960s can be seen as a reaction to the Warren Court’s expansion of defendants’ rights. 24 F. Weed, Certainty of Justice: Reform in the Crime Victim Movement (New York: Aldine, 1995), 21. 25 Ibid.


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of constituencies. One of the major achievements of the anti-hate crime movement is that it unites disparate social movements, what some would refer to as ‘strange befellows’.26 As liberal, progressive movements, the civil rights, women’s, disabilities, and gay and lesbian movements ‘called attention to the personal costs of minority groups’ political victimization,’ while the more conservative crime victim movement ‘called attention to the political context of personal victimization.’27 With its complicated and sometimes contradictory political forces in place,28 the anti-hate crime movement in the U.S. invented the term hate crime, defined its initial properties, and demanded that lawmakers and other public policy officials recognize bias-motivated violence as a significant social problem. Interestingly, however, at least early on, it did so without the official backing of the state; that is, the term hate crime was popularly used by these movements and the media prior to state and federal lawmakers bestowing the term with legal authority via the passage of statutes. Thereafter, throughout the 1980s and 1990s, the players described above were successful at getting social movement goals translated into public policy (i.e., state and federal law). B. Translating social movement goals into legal parlance Once the anti-hate crime movement brought the issue of discriminatory violence directed toward (some) minorities into the public consciousness, the anti-hate crime movement’s struggle turned to seeking legal redress in light of the now well-documented problem of bias-motivated violence. Various sectors of the anti-hate crime movement, most notably the Hate Crimes Coalition,29 Anti-Defamation League, and the National Gay and Lesbian Task Force, pressured state and federal legislators to enact statutes embodying the goals of the anti-hate crime movement.30 As a result, what is now recognizable as ‘hate crime law’ emerged. At the state level, in the last two decades almost every state in the U.S. adopted at least one statute that can be called a ‘hate crime law.’ Hate crime laws have taken many forms throughout the U.S., including: statutes proscribing criminal penalties for civil rights violations; specific ‘ethnic intimidation’ and ‘malicious harassment’ statutes; and provisions in previously enacted statutes for enhanced penalties if an extant crime is 26 V. Jenness and Ryken Grattet, supra n. 4. 27 T.A. Maroney, supra n. 5, 579. 28 V. Jenness and Ryken Grattet, supra n. 4.; Marooney, supra n. 5. 29 The Coalition on Hate Crimes was comprised of civil rights, religious, ethnic, and law

enforcement groups, as well as a diverse array of professional organizations. 30 V. Jenness, supra n. 5.

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committed for bias or prejudicial reasons. These laws specify provisions for race, religion, color, ethnicity, ancestry, national origin, sexual orientation, gender, age, disability, creed, marital status, political affiliation, age, marital status, involvement in civil or human rights, and armed service personnel. In addition, a few states have adopted statutes that require authorities to collect data on hate- or bias-motivated crimes; mandate law enforcement training; prohibit the undertaking of paramilitary training; specify parental liability; and provide for victim compensation. Finally, many state statutes prohibit institutional vandalism and the desecration or the defacement of religious objects, the interference with or disturbance of religious worship, cross burning, the wearing of hoods or masks, the formation of secret societies, and the distribution of publications and advertisements designed to harass select groups of individuals.31 Across the U.S., state hate crime laws vary immensely in terms of timing of passage, wording, and scope of coverage. Some laws employ a language of civil rights. For example, California’s ‘Interference with Exercise of Civil Rights’ statute proscribes threatening ‘any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or the laws of the United States because of the other person’s race, color, religion, ancestry, national origin, disability, gender, or sexual orientation.’32 In contrast, some states employ the language of ‘ethnic intimidation or malicious harassment.’ For example, Idaho’s ‘Malicious Harassment’ law declares it unlawful to ‘maliciously and with the specific intent to intimidate or harass another person because of that person’s race, color, religion, ancestry, or national origin.’33 And finally, some states, such as Montana’s ‘Sentence Enhancement’ law,34 simply increase the penalty for committing an enumerated crime if the defendant committed a criminal act that ‘evidences’ or ‘demonstrates’ prejudice or bigotry based on the victim’s real or imagined membership in a legally recognized protected status.35 Following the states’ lead, the U.S. Congress passed three laws specifically designed to address bias-motivated violence. In 1990 President Bush 31 This last type of law reflects a previous generation of what, in retrospect, could be

termed hate crime law (by current standards). Appearing as early as the late 1800s in response to perceived escalation of Ku Klux Klan activity, these laws are distinct from the contemporary hate crime laws insofar as they are considerably older and thus were not introduced under the rubric of ‘hate crimes legislation.’ 32 Cal. Penal Code §422.7. 33 Idaho Code §18-7902. 34 Mont. Code Ann. §45-5-222. 35 For a more thorough review of state hate crime law, see V. Jenness and Ryken Grattet, supra n. 4; 1996; R. Grattet, Valerie Jenness and Theodore Curry, supra n. 6.


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signed the Hate Crimes Statistics Act, which requires the U.S. Attorney General to collect statistical data on ‘crimes that manifest evidence of prejudice based on race, religion, sexual orientation, or ethnicity, including where appropriate the crimes of murder, non-negligent manslaughter; forcible rape; aggravated assault, simple assault, intimidation; arson; and destruction, damage or vandalism of property.’36 As a data collection law, the Hate Crimes Statistics Act does not, in any way, stipulate new penalties for bias-motivated crimes, nor does it provide legal recourse for victims of bias-motivated crime. In contrast, 1994 the U.S. Congress passed two more hate crime laws that stipulate penalties and provide legal recourse. The Violence Against Women Act (VAWA) specifies that ‘all persons within the United States shall have the right to be free from crimes of violence motivated by gender.’37 In addition to allocating over 1.6 billion dollars for education, rape crisis hotlines, training of justice personnel, victim services (especially shelters for victims of battery), and special units of police and prosecutors to deal with crimes against women, the VAWA provides a civil remedy for ‘gender crimes.’ Declaring that, ‘[C]rimes motivated by the victim’s gender constitute bias crimes in violation of the victim’s right to be free from discrimination on the basis of gender,’38 the VAWA entitles victims to compensatory and punitive damages through the federal courts for a crime of violence if it is motivated, at least in part, by animus toward the victim’s gender. Although this law was recently ruled unconstitutional,39 it was predicated upon and promoted the inclusion of gender in the concept hate crime. Also in 1994, the U.S. Congress passed the Hate Crimes Sentencing Enhancement Act. This law identifies eight predicate crimes – murder; nonnegligent manslaughter; forcible rape; aggravated assault; simple assault; intimidation; arson; and destruction, damage, or vandalism of property – for which judges are allowed to enhance penalties of ‘not less than three offense levels for offenses that finder of fact

36 Pub. L. §101–275. 37 Pub. L. §103–322. 38 Ibid. 39 Petitioner Brzonkala filed suit, alleging, inter alia, that she was raped by respondents

Antonio Morrison and James Crawford while the three were students at Virginia Polytechnic Institute and that this attack violated 42 USCS 13981, which provided a federal civil remedy for the victims of gender-motivated violence. In a 5–4 decision, the U.S. Supreme Court ruled that Congress had no authority under either the Federal Constitution’s commerce clause or 5 of the Constitution’s Fourteenth Amendment to enact 42 USCS 133981. Brzonkala v. Morrison, 2000 U.S. 598; 120 S. Ct. 1740; 146 L. Ed. 2d 658; 2000 U.S. LEXIS 3422; 68 U.S.L.W. 4351.

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at trial determines beyond a reasonable doubt are hate crimes’.40 For the purposes of this law, hate crime is defined as criminal conduct wherein ‘the defendant intentionally selected any victim or property as the object of the offense because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person’.41 Although broad in form, this law addresses only those hate crimes that take place on federal lands and properties. The state and federal laws described above demonstrate that many advocates share a commitment to using the law, law enforcement, and the criminal justice system as a vehicle to enhance the status and welfare of minority constituencies deemed differentially vulnerable to violence motivated by bigotry. Despite variation in their wording and content, criminal hate crime statutes share some commonalities that allow them to be seen as a more or less coherent body of law. Accordingly, we can now begin to speak about a ‘hate crime canon.’

2. D ELINEATING AND C RITICALLY A SSESSING A

H ATE C RIME C ANON

Technically speaking, a canon is an accepted rule, model, or standard; alternatively, it is a regulation or dogma42 . With this generic definition in mind, it is not surprising that experts routinely disagree on the parameters of the canon of any particular domain – from American Literature to Genetics. Although any specification of a canon is inevitably debatable, a canon related to a recently invented and institutionalized phenomenon – such as hate crime – is particularly vulnerable to debate insofar as its content and structure is, to a greater degree, unsettled. Nonetheless, it is useful to articulate the core elements of any domain, especially domains of legal discourse. Doing so provides both an entry point and a point of departure for critical analysis. With this caveat acknowledged, at this point in time the hate crime canon can first and foremost be described as a body of law that contains core elements that imbue the term with meaning and set the limits to meaning that can be attached to the term. Specifically, hate crime law 1) provides a new state policy action, by either creating a new criminal category, altering an existing law, or enhancing penalties for select extant crimes when they are committed for bias reasons; 2) contains an intent 40 Pub. L. §103–322. 41 Pub. L. §103–322. 42 Webster’s Dictionary for Everyday Use, 1986.


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standard, which refers to the subjective intention of the perpetrator rather than relying solely on the basis of objective behavior; and 3) specifies a list of protected social statuses, such as race, religion, ethnicity, sexual orientation, gender, disabilities, etc. These elements of the definition of hate crime law capture the spirit and essence of hate crime politics and law in the U.S. As such, they constitute the core parameters of the hate crime canon and attendant discourse in the U.S. and thus warrant critical examination. A. Official state action: Extending the reach of the State Given that the origins of hate crime law can be found in various modern civil rights movements, it is appropriate to begin a discussion of the hate crime canon in a way that recognizes the connection between contemporary identity politics and the production of a newly developed body of social policy (i.e., law) that extends the reach of official state action. The connection evinces a key element of hate crime law, evokes critical assessment, and anticipates future developments in hate crime politics in the U.S. and abroad. Often used as a starting point by critics of the hate crime canon, the connection between contemporary identity politics and ‘hate crime’ has been the focus of critique. In Hate Crimes: Criminal Law and Identity Politics, Jacobs and Potter offer a scathing critique of hate crime politics and law.43 They do so by first refuting two interrelated notions promulgated by the social movement players described in the previous section: that bias-motivated violence is occurring at an alarming rate and that the rate of occurrence is growing at an alarming rate. Rejecting these wellinstitutionalized claims, Jacobs and Henry44 argue that the ‘rising tide of bigotry and bloodshed’ described by Levin and McDevitt,45 as well as others many others, is a social construction that evidences a modern moral panic. As they argue, The conclusion that hate crime has reached epidemic proportions today simply evinces the fact that bias crime is now much less acceptable and that victimized groups have a special social and political status. While it is possible to understand how and why the picture of a ‘hate crime epidemic’ has come to dominate the American imagination, it is doubtful that this picture depicts reality.46 43 J. Jacobs and Kimberly Potter, supra n. 13. 44 J. Jacobs and Jessica S. Henry, supra n. 13. 45 J. Levin and Jack McDevitt, Hate Crimes: The Rising Tide of Bigotry and Bloodshed

(New York: Plenum Press, 1993). 46 J. Jacobs and Jessica S. Henry, supra n. 13.

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Moving beyond this empirical observation, Jacobs and Henry and later Jacobs and Potter, offer critical commentary on hate crime law in particular and hate crime politics more generally precisely because both are rooted in contemporary ‘identity politics.’ In their words, ‘the passage of hate crime law in the 1980s and 1990s is best explained by the growing influence of identity politics. Fundamentally, hate crime laws are symbolic statements requested by advocacy groups for material and symbolic reasons and provided by politicians for political reasons.’47 Taking identity politics as the engine around which hate crime – as a social and legal concept – motors, critics like Jacobs and Potter argue that hate crime laws are a vivid example of legislators ceding the policymaking process to interest groups. In simple terms, what begins as social movement goals ends as official state policy. With this causal analysis in hand, critics such as Jacobs and Potter48 warn against the marriage of symbolic politics and official state policy, arguing that such a marriage represents a misuse of criminal law in modern democratic societies. More recently, but nonetheless in alignment with Jacobs and Potter, King hypothesized that ‘the passing of hate crime legislation may be largely symbolic. By passing legislation, the state satisfies the concerns of groups historically victimized by hate crimes (e.g., blacks, gays) as well as watchdog organizations such as the AntiDefamation League of B’nai B’rith.’ Moreover, ‘the political attention given to hate crimes may affect patterns of prosecution.’49 But simple terms and accordant variables – like ‘identity politics’ and ‘interest group politics’ – very rarely capture the whole story of legal reform or any other type of policy innovation, diffusion, and implementation; rather, they belie more complex political processes that predict the timing of the passage of law and other forms of public policy, as well as the content and implementation of law and other forms of public policy. A growing body of criminology, political science, and law and society studies devoted to understanding the conditions under which new law or policy is envisioned, developed, revised, implemented, and institutionalized suggests that a range of factors are at issue.50 Moving beyond simplistic single variable explanations (i.e., ‘institutionalized iden47 J. Jacobs and Kimberly Potter, supra n. 13, 65. 48 James Jacobs and Kimberly Potter, Hate Crimes: Criminal Law and Identity Politics

(New York: Oxford University Press, 1998). 49 R. King, supra n. 8, 7. 50 See, for example, E.F. McGarrell and Thomas C. Castellano, ‘An Integrative Conflict Model of the Criminal Law Formation Process’, Journal of Research in Crime and Delinquency 28 (1991), 174–196 and E.F. McGarrell, Edmund F. and Thomas C. Castellano, ‘Social Structure, Crime, and Politics: A Conflict Model of the Criminal Law Formation Process’, in William J. Chambliss and Marjorie S. Zatz, eds., Making Law: The State, The


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tity politics’), multiple literatures point to important exogenous factors that first provide the impetus for criminalization and then sustain the criminalization process over time. These factors, include a diverse array of social actors,51 interest groups,52 social movements,53 political opportunities,54 and structural conditions.55 Additionally, the new institutionalism Law, and Structural Contradictions (Bloomington, IN: Indiana University Press, 1993), 347–378. 51 S. Coltrane and Neal Hickman. ‘The Rhetoric of Rights and Needs: Moral Discourse in the Reform of Child Custody and Child Support Laws’, Social Problems 39 (1992), 400– 420; K. Farr, ‘Fetal Abuse and Criminalization of Behavior During Pregnancy’, Crime and Delinquency 41 (1995), 235–245; J.F. Galliher and Linda Basilick, ‘Utah’s Liberal Crug Laws: Structural Foundations and Triggering Events’, Social Problems 26 (1979), 284–297; J. Hagan, ‘The Legislation of Crime and Delinquency: A Review of Theory, Method, and Research’, Law and Society Review 14 (1980), 603–628; R. Hollinger and Lonn Lanza-Kaduce, ‘The Process of Criminalization: The Case of Computer Crime Laws’, Criminology 26(1) (1988), 108–126; W.L. Neuman, ‘Negotiated Meanings and State Transformation: The Trust Issue in the Progressive Era’, Social Problems 45 (1998), 315–335. 52 R. Grattet, Valerie Jenness and Theodore Curry, supra n. 6.; V. Jenness, ‘Hate Crimes in the United States: The Transformation of Injured Persons into Victims and the Extension of Victim Status to Multiple Constituencies’, in Joel Best, ed., Images and Issues: Typifying Contemporary Social Problems (New York: Aldine de Gruyter, 1995a), 213–237; V. Jenness, and Ryken Grattet, supra n. 6; B. Miller and William Canak, ‘The Passage of Public Sector Collective Bargaining Laws: Unions, Business, and Political Competition in the American States’, Political Power and Social Theory 7 (1988), 249–292; J.J. Savelsberg, ‘The Making of Criminal Law Norms in Welfare States: Economic Crime in West Germany’, Law and Society Review 21 (1987), 529–561. 53 K. Broad and Valerie Jenness, supra n. 22; A. DiChiara and John F. Galliher, ‘Dissonance and Contradiction in the Origin of Marijuana Decriminalization’, Law and Society Review 28 (1994), 41–77; B. Miller and William Canak, ‘The Passage of Public Sector Collective Bargaining Laws: Unions, Business, and Political Competition in the American States’, Political Power and Social Theory 7 (1988), 249–292; V. Jenness, ibid.; V. Jenness, ‘Social Movement Growth, Domain Expansion, and Framing Processes: The Gay/Lesbian Movement and Violence Against Gays and Lesbians as a Social Problem’, Social Problems 47 (1995b), 145–170, 701–772; V. Jenness and Kendal Broad, supra n. 5. 54 J.E. Call, David Nice and Susette M. Talarico, ‘An Analysis of State Rape Shield Laws’, Social Science Quarterly 72 (1991), 774–788. 55 W. Chambliss and Robert Seidman, Law, Order, and Power (Reading, Massachusetts: Addison-Wesley Publishing Company, 1982); William J. Chambliss and Marjorie S. Zatz, eds., Making Law: The State, The Law, and Structural Contradictions (Bloomington, IN: Indiana University Press, 1993); J.F. Galliher. and Linda Basilick, ‘Utah’s Liberal Drug Laws: Structural Foundations and Triggering Events’, Social Problems 26 (1979), 284–297; H. Gunnlaugsson and John F. Galliher, ‘Prohibition of Beer in Iceland: An International Test of Symbolic Politics’, Law and Society Review 20 (1986), 334–353; D. Humphries and David F. Greenberg, ‘The Dialectics of Crime Control’, in David F. Greenberg, ed., Crime and Capitalism (Palo Alto, CA: Mayfield Publishing Company, 1981), 209–254; V. Jenness and Ryken Grattet, supra n. 6; B. Miller and William Canak,

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literature on the innovation and diffusion of public policy, including law, demonstrates that that policy formation and implementation is substantially determined by intergovernmental processes and developments, such as the endorsement of a particular policy model by a powerful interstate organization, the galvanization of period-specific events that dramatize the need for a policy response, and the formation of interstate social networks that channel the communication of models across social space.56 Continuing along these lines57 and more recently58 have demonstrated that over time the role of collective action in sustaining policy definitions diminishes as a policy formula takes on a life of its own and thus no longer requires active promotion by particular collective actors. Taken as whole, the literature on policy innovation, formulation, and institutionalization suggests that the culture, structure, and workings of a body of law is derivative of no fewer than four larger social processes: issue creation, the process whereby a problem is recognized, named, and deemed in need of a legal solution; the adoption of a particular legal solution (i.e., law) wherein a single policy form is selected from a range of alternatives (i.e., statutes); the rulemaking phase whereby government officials and the courts operationalize the precise meaning of the policy (i.e., law); and, finally, the classification and application of the rules (i.e. laws) by enforcement agents (i.e., police and prosecutors) to specific ‘real world’ circumstances.59 Thus, lawmaking in particular and the development of a body of law more generally occurs not just at the moment of legislative enactment; it is renegotiated and redefined at multiple points as a result of the confluence of multiple social processes. So too is the implementation of social policy, especially law. As Jenness and Grattet have documented, interest groups were only part of the reason hate crime politics, discourse, and law emerged when and how they did and why they took root in the way they have.60 The ways activists, experts, and policymakers have conceptualized and drafted hate ‘The Passage of Public Sector Collective Bargaining Laws: Unions, Business, and Political Competition in the American States’, Political Power and Social Theory 7 (1988), 249–292. 56 J.W. Meyer and Brian Rowan, ‘Institutionalized Organizations: Formal Structure as Myth and Ceremony’, American Journal of Sociology 83 (1977), 340–363; D. Strang and John W. Meyer, ‘Institutional Conditions for Diffusion’, Theory and Society 22 (1993), 487–512. 57 P. Burstein, ‘Policy Domains: Organization, Culture, and Policy Outcomes’, Annual Review of Sociology 17 (1991), 327–350. 58 V. Jenness and Ryken Grattet, supra n. 6; V. Jenness and Ryken Grattet, supra n. 4; R. Grattet, Valerie Jenness and Theodore Curry, supra n. 6. 59 P. Burstein, supra n. 57; V. Jenness and Ryken Grattet, supra n. 4. 60 Supra n. 4.


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crime legislation reflects the constraints and opportunities of using law, as opposed to other institutions, to address systemic conflicts and inequalities. Most notably, legal culture in the U.S. affects how those interests were expressed and consequently how law and its surrounding discourse was formulated. One key element of American law that significantly shaped the hate crime canon in the U.S is the ‘norm of sameness.’ As a basic assumption of American law and thus lawmaking, the ‘norm of sameness’ is best expressed in the equal protection clause of the U.S. Constitution and is echoed in innumerable other locations. Simply put, the ‘norm of sameness’ stipulates that laws must apply equally to all groups and individuals in society. As a journalist observed and questioned with regard to hate crime, ‘a large stone in the foundation of the American dream is the idea that every person is equal in citizenship and that every life should be equally valued and protected. No one should accept less, but is anyone entitled to more?’61 For the most part, ‘equal’ treatment historically has meant ‘sameness;’ that is, a law must not give one group benefits or protections that it does not extend to others; all groups must be treated the same.62 The norm of sameness is so pervasive in American law that it inevitably structures the way interest groups and policymakers orient to particular emergent problems. In the case of hate crime law, the norm of sameness ensured that terms like ‘race,’ ‘religion,’ and ‘gender,’ instead of ‘blacks,’ ‘Jews,’ and ‘women,’ anchor the hate crime canon and attendant discourse. Hate crime laws are written in a way that elides the historical basis and meaning of hate crime by translating specific categories of persons (e.g., blacks, Jews, gays and lesbians, Mexicans, etc.) into all-encompassing and seemingly neutral categories (e.g., race, religion, sexual orientation, national origin). In doing so, the laws do not offer any remedies or protections to these groups that are not simultaneously available to all other races, religions, genders, sexual orientations, nationalities, etc. Minorities are treated the same as their counterparts. This reflects a central mandate of American law (i.e., the norm of sameness); at the same time, it mutes the activist claims developed by social movements devoted to enhancing the status and welfare of particular minority constituencies. The result is significant: in order to ensure that lawmakers did not give benefits to particular groups that were not also extended to all others, the 61 F. Dickey, ‘Of Course Hate Crimes are Wrong: But so are the Laws Against Them’,

Los Angeles Times Magazine (October 22 2000), 10–29, 29. 62 M. Minow, Making All the Difference: Inclusion, Exclusion, and American Law (Ithaca: Cornell University Press, 1990).

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policymaking process changed the meaning activists originally attached to the concept of a hate crime. Most notably, sameness in the context of hate crime has meant that laws have been written in a way that equates a hate crime against a black with one against a white, which ensures ‘within-category sameness.’ This was not the intent of the civil rights movements described earlier. Similarly, hate crimes against persons with disabilities are rendered equivalent to hate crimes against Muslims, which ensures ‘across-category sameness.’ Again, this was not the intent of the civil rights movements described earlier. The institutionalization of ‘within-category sameness’ and ‘across-category sameness’ results in a clear disconnect between the origins of the hate crime politics, the development of hate crime policy (i.e., law), and the implementation of policy (i.e., law enforcement). At the end of the day, the identity politics that invented a hate crime discourse and fueled the development of a hate crime canon in the U.S. are inevitably muted as the mandates of American law and policymaking are addressed. Therefore, to attribute the complex process of policymaking to one variable – interest group politics – is myopic at best and grossly misleading at worst. In this case, to envision the hate crime canon as ‘merely’ derivative of modern identity politics is misguided. To continue with the metaphor introduced earlier in this section, if the hate crime canon represents a marriage between identity politics and the state, it is a marriage that refuses to acknowledge a complicated courtship, many break-ups and make-ups, the number of diverse guests at the wedding, ongoing adulterous affairs, and, most importantly, the ongoing potential for divorce. In other words, it is problematic to envision hate crime law as ‘only’ the extension of identity politics. Although it is difficult to argue against the notion that identity politics inspired the development of hate crime discourse in the U.S., it is equally difficult to conclude that identity politics is the beginning and the endpoint of the hate crime canon. The social processes that underlie policymaking ensure that the two are, at best, only loosely-coupled.63 The ‘loosely coupled’ nature of the relationship between identity politics/social movements on the one hand and the evolution of a hate crime canon, on the other, becomes apparent via an examination of the intent standard inherent in hate crime law in the U.S. 63 ‘Coupling’ refers to the degree to which the actions of one participant, organization, or

institution has immediate and predictable consequences for another participant, organization, or institution. H. Jacobs, ‘The Governance of Trial Judges’, Law and Society Review 31 (1997), 3–30; see also J. Hagan, ‘Why Is There So Little Criminal Justice Theory? Neglected Macro- and Microlevel Links Between Organization and Power’, Journal of Research in Crime and Delinquency 26 (1989), 116–135 for an application to the criminal justice system.


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B. Intent standard: Distinguishing between types of discrimination and bias motivations To further articulate the hate crime canon in the U.S. requires that hate crime be demarcated from what Lawrence has referred to as ‘parallel crimes,’ defined as ‘similar crimes that lack bias motivation.’64 For example, the crimes of homicide, assault, trespass, and vandalism may or may not contain a bias-motivation, thus they may or may not constitute a hate crime. Thus, hate crimes are not always separate offenses, but acknowledge a specific motivation for a criminal event. A primary distinction between a hate crime and a parallel crime – the so-called ‘intent standard’ evident in hate crime conduct, law, and discourse – is a core dimension of the hate crime canon insofar as this element of the hate crime cannon demarcates ‘hate crime’ from other forms of malicious and criminal activity. As King argues in one of the few studies on the prosecution of hate crime, ‘[t]he mens rea has been considered requisite for criminal prosecution since the conception of common law, yet only recently has the specific prejudice associated with a crime become criminal or lead to penalty enhancements.’65 Accordingly, all of the state and federal laws presented earlier imply an intent standard. Moreover, law enforcement officials routinely define hate crimes as separate from other crimes precisely because the offender’s conduct was motivated by ‘bias’ or ‘prejudice’.66 This element of the hate crime cannon has generated an enormous amount of controversy over the constitutionality of hate crime law in the U.S.67 To emphasize the centrality and consequence of the intent standard in hate crime discourse, social and legal analysts have made useful analytic distinctions between various ways in which the victim’s membership in a social category can play a role in the perpetration of (some) crimes. Most notably, distinctions between symbolic and actuarial crimes, as well as racial animus models and discriminatory selection models of target choice, demarcate the primary ways in which the intent standard has – and has not – been envisioned in the hate crime cannon. Symbolic crimes are best envisioned as social crimes because the victim(s) is/are selected precisely because of what he/she/they symbolize. The crime is committed for expressive reasons. Perhaps the most vivid 64 F.M. Lawrence, Punishing Hate: Bias Crimes Under American Law (Cambridge, Massachusetts: Harvard University Press, 1999), 4. 65 R. King, supra n. 8, 3–4. 66 E. Boyd, Richard Berk and Karl Hamner, supra n. 8; V. Jenness and Ryken Grattet, supra n. 4; S. Martin (1995), supra n. 8 and S. Martin (1996), supra n. 8. 67 F.M. Lawrence, supra n. 64; S. Phillips and Ryken Grattet, supra n. 7.

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historical example of this in the U.S. is the history of lynching blacks where the corpse was displayed in communities to send a message to other blacks and sympathetic whites. More recently, in Laramie, Wyoming, Matthew Shepard, a young gay man, was robbed, pistol-whipped, tied to a fence, and left to die by two young men who were offended by his homosexuality. In each of these cases, the individual was victimized in order to convey a message about social types (i.e., Blacks and homosexuals) to the larger community. In contrast, actuarial crimes involve the selection of a victim based on his/her real or imagined social characteristic(s) for instrumental reasons, rather than for expressive reasons. As Berk, Boyd, and Hamner explain, ‘people routinely make lay estimates of central tendencies associated with particular social categories.’68 These assessments play into all sorts of choices criminals make prior to engaging in criminal conduct. For example, a group of perpetrators may purposely assault and rob a Jewish person not because of what Jewishness represents to them, but because they apply a stereotype to him/her that is anchored in the notion that Jews have more money than gentiles, thus they are more likely to ‘pay off’ than ‘random’ victims of assault and robbery. In a similar fashion, a group of perpetrators may purposely assault and rob a person in a wheelchair not because of their antipathy toward persons with disabilities, but because they apply a stereotype to him/her that is anchored in the notion that persons with disabilities are less inclined to resist, unable to seek assistance, unlikely to evoke the attention of authorities, and/or unable to testify about victimization when authorities are attentive. In each of these examples, the victim’s symbolic status is used to retrieve relevant ‘factual’ information about him/her as a likely crime victim, not as a member of a social category held in ill-repute. In other words, it is this (real or imagined) factual information, mediated through some imagined actuarial table that addresses the vulnerability or profitability of a target, which motivates the crime, not bigotry. In both symbolic and actuarial crimes, victims are selected because of some real or imagined social characteristic and group membership; and, in both symbolic and actuarial crimes an element of discrimination based on a social characteristic is evident. Notably, however, the motivation for symbolic and actuarial crimes is different. In symbolic crimes, selection is based on a desire to communicate a message, one born of 68 R. Berk, Elizabeth A. Boyd and Karl M. Hamner, ‘Thinking More Clearly about HateMotivated Crimes’, in Gregory Herek and Kevin Berrill, eds., Hate Crimes: Confronting Violence Against Lesbians and Gay Men (Newbury Park: Sage Publications, 1992), 123– 143, 128.


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bigotry. In contrast, actuarial crimes involve the use of social categories as a basis for victim selection as a means to some non-symbolic end. ‘This distinction between symbolic and actuarial crimes suggests a potentially useful boundary between hate-motivated crimes and other offenses’69 even though in many cases making clear empirical distinctions can be difficult. Nonetheless, Berk, Boyd, and Hamner concluded that ‘perhaps the essential feature of hate-motivated crimes is their symbolic content. Crimes motivated solely by the victim’s actuarial status would seem best included in another category.’70 Related to the distinction between symbolic and actuarial crimes, a distinction can be made between ‘two analytically distinct, but somewhat overlapping [statutory] models of bias crimes’:71 the discriminatory selection model and the racial animus model. Both of these models assume the presence of discrimination in the selection of crime victims. However, each model posits different criteria for assessing what does and does not constitute bias- or hate-crime proper. Accordingly, each model is relevant to the articulation of the development of a hate crime canon, a critical assessment of a hate crime canon, and the connection of both to larger civil rights law and discourse in the U.S. The discriminatory selection model defines hate crime solely on the basis of the perpetrator’s discriminatory selection of a victim, regardless of why such a selection was made. For example, like girls and women, people with disabilities may be targeted simply because they are perceived to be more vulnerable victims. Consistent with the development of sexual harassment law,72 the reasons or motivations for the discrimination – in this case differential selection – are irrelevant to the applicability of the law. Consider the finding of the Court in a complex Florida case, Dobbins v. State. This case involved a Jewish youth who joined a skinhead group to anger his parents and when discovered to have done so was beaten by the other members of the group. The Court of Appeals of Florida found the following in regard to its hate crime law, [I]t does not matter why a woman is treated differently than a man, a black differently than a white, a Catholic differently than a Jew; it matters only that they are. So also with section 775.085 [Florida’s hate crime statute]. It doesn’t matter that Dobbins hated Jewish people or why he hated them; it only mattered that he discriminated against Daly by beating him because he was Jewish.73 69 R. Berk, Elizabeth A. Boyd and Karl M. Hamner, ibid., 131. 70 R. Berk, Elizabeth A. Boyd and Karl M. Hamner, supra n. 68, 131. 71 F.M. Lawrence, supra n. 64, 29–30. 72 V. Schultz, ‘Reconceptualizing Sexual Harassment’, Yale Law Review 107 (1998),

1755–1878. 73 Dobbins v. State, 605 So. 2d 922; 1992 Fla. App. LEXIS 10062; 17 Fla. Law W. D 2222 (1992).

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In this view, victim selection based upon vulnerability would be punished the same as a situation in which a victim was selected to express hatred. In other words, the discriminatory selection model does not distinguish between symbolic and actuarial crimes; rather, it is inclusive of both kinds. This legal model/thinking captures the most popular form of hate crime law in the U.S. As of 2000, roughly two-thirds of the states laws and the existing and proposed federal laws are based upon it.74 Moreover, this form of the law has passed constitutional muster in the U.S. It was legitimated in 1993 in Wisconsin v. Mitchell,75 the first case in which the U.S. Supreme Court expressly sustained the constitutionality of a modern bias crime law in light of charges of unconstitutionality.76 In sharp contrast, the racial animus model focuses attention on the reason and subjective states associated with the discriminatory selection of victims. This approach assumes that the motivation for the selection of a victim is less instrumental and more expressive; perpetrators use the act of victimization to express ‘animus,’ ‘maliciousness,’ ‘hatred,’ etc. toward the category of persons the victim is presumed to represent (i.e., a person of color, a homosexual, a Jew, a person with a disability, etc.). Here, evidence of bigotry is central to the making the case that a ‘hate crime’ has occurred. Perhaps the most vivid example of a case that clearly fits the racial animus model in recent U.S. history was the murder of James Byrd in Jasper, Texas in June of 1998. This event, covered extensively in the national media, presented the murder as a ‘hate crime’ after it was revealed that Byrd, a 49 year-old black man, had been beaten and then dragged to his death behind a truck by three white men known to be affiliated with a white supremacist group. During the investigation of the crime, the defendants were discovered to harbor beliefs about blacks that were clearly racist. During the trial, prosecutors used this information as evidence of racist motivations for the crime, which the defendants declined to refute before, during, or after the trial; indeed, after being sentence to life in prison, one defendant publicly expressed his continued hatred of blacks.77 74 V. Jenness and Ryken Grattet, supra n. 4. 75 Wisconsin v. Mitchell, 113 S. Ct. 2194; 1993 U.S. LEXIS 4024; 124 L. Ed. 2d 436; 61

U.S.L.W. 4575; 21 Media L. Rep. 1520; 93 Cal. Daily Op. Service 4314; 93 Daily Journal DAR 7353 (1993). 76 For a detailed review of the many constitutionality debates and resolves, see F.M. Lawrence, supra n. 64; S. Phillips and Ryken Grattet, supra n. 7. 77 Despite the promulgation of this construction, the case was not prosecuted under the Texas hate crime law. While publicly understood as a ‘hate crime’ in the U.S., in legal terms the incident was defined as aggravated homicide. Since aggravated homicide brings with it the most extreme penalty possible in Texas (i.e., execution), the enhanced penalties specified by hate crime law are irrelevant.


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The racial animus model follows the distinction between actuarial and symbolic crimes by defining the former as beyond the domain of the law and the latter within the desirable domain of hate crime law. As Lawrence explains; This model is consonant with the classical understanding of prejudice as involving more than differential treatment on the basis of the victim’s race. This understanding of prejudice, as reflected in the racial animus model of bias crimes, requires that the offender have committed the crime with some measure of hostility toward the victim’s racial group and/or toward the victim because he is part of that group.78

The promotion of this model by Lawrence is in line with the promotion of the ‘symbolic crimes’ above ‘actuarial crimes’ model by Berk, Boyd, and Hamner.79 Despite the fact that only a minority of states have adopted this approach to demarcating the bounds of hate crime, it is noteworthy that this model of bias crime – the racial animus model/the symbolic crime model – is evident in the regulations promulgated by the Federal Bureau of Investigation to implement the Hate Crimes Statistics Act.80 These regulations define bias crime conduct motivated, in whole or in part, by a ‘preformed negative opinion or attitude toward a group of persons based on their race, religion, ethnicity/national origin, or sexual orientation’.81 Obviously, ‘opinion’ and ‘attitude’ become central in law enforcement’s formulation of hate crime as a specific type of criminal conduct that necessarily contains parallel crimes. By definition, all cases falling under the rubric of the racial animus model are also cases that fall under the rubric of the discriminatory selection model, but not vice-versa. Thus, the racial animus model implies a more stringent approach to demarcating hate crimes from parallel crimes than does the discriminatory selection model. From Lawrence’s point of view, as a legal and political strategy, the discriminatory selection errs on the side of over inclusion. He argues that a focus on the racial animus model is preferable precisely because it directs state sanctioned social control (i.e., the law and law enforcement) toward bigotry and the harm it generates. With regard to the latter, Lawrence argues ‘bias crimes ought to receive punishment that is more severe than that imposed on parallel crimes’ because ‘they cause greater harm than parallel crimes to the immediate victim of the crime, the target community of the crime, and the general society.’82 78 F.M. Lawrence, supra n. 64, 34. 79 Berk, Boyd and Hamner, supra n. 68. 80 Pub. Law §101–275. 81 Model Penal Code §§2.06, 5.02 (1985). 82 F.M. Lawrence, supra n. 64, 34 and 44.

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Despite the preferences of legal analysts like Lawrence, as well as many of the social movement players described earlier, over time the various ways of envisioning the parameters of motivation or sources of bias have become homogenized as the concept of hate crime leaves activist arenas and is subject to lawmakers who attend to anticipated and official judicial review of the concept. Jenness and Grattet’s work on hate crime as a ‘policy domain’83 suggests that since the invention of the term ‘hate crime’ in the late 1970s, lawmakers and appellate Court judges have increasingly agreed that the parameters of the discriminatory selection model provide the most legitimate foundation for modern hate crime law. Detailed analysis of the history of lawmaking around hate crime reveals that early on lawmakers experimented with four distinct ways of phrasing, and thus operationalizing, the intent standard as they grappled with how to write hate crime law: the ‘because of’ phrasing, the ‘intent do intimidate or harass’ phrasing, the ‘maliciously and with specific intent to harass’ phrasing, and the ‘prejudice, hostility, maliciousness’ phrasing.84 However, after 1993 the ‘because of’ phrasing became the dominant form, with roughly half of the adopting states using this language, signaling an increasing commitment to the actuarial model over the symbolic model and the discriminatory selection model over the racial animus model. This trend is replicated as the concept exits the legislative arena and is subject to judicial review. As Phillips and Grattet have demonstrated, those opposing hate crime law have put forth numerous arguments in favor of ruling hate crime law unconstitutional.85 In light of these arguments, the appellate courts, including the U.S. Supreme Court, has made rulings that ensure that the racial animus model has had a considerably more difficult time than the discriminatory selection model marshaling appellate court approval.86 The U.S. Supreme Court87 and two state supreme 83 Borrowing from P. Burstein, ‘Policy Domains: Organization, Culture, and Policy Outcomes’, Annual Review of Sociology 17 (1991), 327–350, and V. Jenness and Ryken Grattet, supra n. 4, use the term policy domain to denote ‘components of the political system organized around substantive issues.’ 84 V. Jenness and Ryken Grattet, supra n. 4; V. Jenness and Ryken Grattet, supra n. 6; R. Grattet, Valerie Jenness and Theodore Curry, supra n. 6. 85 Multiple overlapping arguments have occupied the Courts’ attention, including: the laws are overly vague, thus they preclude sufficient notice of the proscribed act and allow arbitrary enforcement; the laws punish motive or thoughts, thus they regulate speech; the laws are overly broad, thus they have a ‘chilling effect’ on the exercise of constitutional rights; the laws allow for content discrimination, thus they regulate speech based on content and viewpoint; and the laws deny ‘equal protection’ to all citizens insofar as they offer preferential treatment for minorities. See, S. Phillips and Ryken Grattet, supra n. 7. 86 Jenness and Grattet, supra n. 4; S. Phillips and Ryken Grattet, supra n. 7. 87 R.AV. v. St. Paul, 505 U.S. 377 (1992).


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courts, Washington88 and New Jersey89 have ruled hate crime laws unconstitutional, in whole or in part, because they relied on phrasing that went beyond mere bias conduct – akin to the symbolic crime model and the racial animus model – to allow the state to police subjective states of its citizens (i.e., bigoted thoughts, beliefs, attitudes, etc.). Further, when words like ‘prejudice’ appear in hate crime law that has not been ruled unconstitutional, a clear reading of the word and law has been put forth by the Court that is in accordance with the actuarial crime model and discriminatory model. For example, the Florida Supreme Court has stated that its law, which required ‘evidence of prejudice,’ should be interpreted as a discriminatory selection law, regardless of the specific wording of the statute.90 Thus, while the symbolic crime/animus model is desirable from the point of view of social movements and activists precisely because it targets bigotry directly, its weaker jurisprudential foundation in antidiscrimination principles renders it more vulnerable to constitutional challenges. In other words, to pass constitutional muster, the hate crime cannon has had to take a particular form. The emergent legitimate form of the law, which has survived constitutional challenges, does not distinguish between mere bias-intent and hatred. Lawmakers and courts have maintained that it does not matter what political views or ideologies motivated the act. Rather, all that matters is that a victim was selected ‘because of’ their race, religion, ancestry, etc., quite apart from the degree of malice involved on the part of the perpetrator. This has caused some to shift from using the term ‘hate’ crime to the term ‘bias’ crime. Once again, the structure of American law preempts the impulse of identity politics – this time through an evolving interpretation of the intent standard, ensuring that the hate crime canon is only loosely coupled with the identity politics and social movements that inspired it. C. Status provisions: Signifying ‘victims’ The final key feature of the hate crime canon in the U.S. is ‘status provisions,’ or what Soule and Earl refer to as ‘target groups,’91 identified in hate crime law. Just as the intent standard distinguishes hate crime from 88 State v. Talley, 122 Wash. 2d 192; 858 P.2d 217; 1993 Wash. LEXIS 227 (1993). 89 State v. Kearns, 136 N.J. 56; 642 A.2d 349; 1994 N.J. LEXIS 430; 63 U.S.L.W. 2015

(1994). 90 State v. Stalder, 630 So. 2d1072; 1994 Fla. LEXIS 76; 19 Fla. Law W. S 56 (1994). 91 S. Soule and Jennifer Earl, ‘All Men Are Created Equal: The Differential Protection of Minority Groups in Hate Crime Legislation’, Presented at the annual meeting of the American Law and Society Association in Chicago Illinois 1999.

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parallel crimes, so too do status provisions. Status provisions single out some axes of oppression as part and parcel of the hate crime problem in the U.S., while rendering other axes around which violence is organized invisible. One the of most important elements of the substantive character of hate crime law – the adoption of select status provisions, such as race, religion, ethnicity, sexual orientation, gender, and disabilities – ensured that some victims of discriminatory violence have been recognized as hate crime victims while others have gone unnoticed. In particular, people of color, Jews, gays and lesbians, women, and those with disabilities increasingly have been recognized as victims of hate crime, while union members, octogenarians, the elderly, children, and police officers, for example, have not. In short, some groups that are differentially vulnerable to crime have been deemed victims worthy of legal redress, while some have not. In 1988 Representative John Conyers, Jr., the federal legislator most responsible for holding federal hearings on hate crime in the U.S., proclaimed that ‘hate crimes motivated by intolerance need to be distinguished from other crimes motivated by other factors.’92 But, at the time, which types of distinctions should be written into law was an open-ended question; and, as the introduction to this article reveals, it remains an openended question. Early on, the anti-hate crime social movement highlighted some types of victims, but as the hate crime concept entered the legislative arena, its possibilities and its limits remained unclear.93 Citizens, activists, and policymakers alike continue to question ‘Who else might be relevant to include?’ To contextualize the question, Laurence Tribe, Professor of Constitutional Law at Harvard University, informed federal lawmakers that, unlike the intent standard discussed earlier, the question of which status provisions to include presents no constitutional problem. As he explained in U.S. Congressional hearings on hate crime: Nothing in the U.S. Constitution prevents the Government from penalizing with added severity those crimes directed against people or their property because of their race, color, religion, national origin, ethnicity, gender or sexual orientation, and nothing in the Constitution requires that this list be infinitely expanded.94

If, as Tribe suggests, legislators had considerable latitude, how did they proceed to demarcate status provisions, and thus signify victims? And, how 92 U.S. Congress. 1988. ‘Racially-Motivated Violence.’ Hearings before the subcom-

mittee on criminal justice of the Committee on the Judiciary. 100th Cong., 2nd sess. 11 May and 12 July. Serial 144. Washington, D.C.: U.S. Government Printing Office, 8. 93 V. Jenness, supra n. 52, V. Jenness, supra n. 53 and V. Jenness, supra n. 5. 94 U.S. Congress. 1992, ‘Hate Crimes Sentencing Enhancement Act of 1992.’ Hearing before the subcommittee on the Constitution of the Committee the Judiciary. 102th Cong., 2nd sess. 5 August. Serial 42. Washington, D.C.: U.S. Government Printing Office, 7.


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are they now proceeding to delineate status provision in the making of hate crime law, and, by extension a hate crime canon? ‘A time-sensitive comparison of the status provisions that characterize hate crime law reveals a significant pattern.’ In 1988, the most common status provisions were for race, religion, color, and national origin. This set of status provisions constitute the more popularly known and accepted elements of the hate crime cannon are associated with the most visible, recognizable, and stereotypical kinds of discriminatory behavior in U.S. history and in the current era. For example, in the U.S. the stereotypical hate crime involves violence toward or harassment of blacks, immigrants, and Jews. While other provisions – such as gender, ancestry, sexual orientation, creed, age, political affiliation, and marital status – are recognized in the early development of hate crime discourse and attendant law, they appear infrequently. Consistent with other analyses,95 these provisions were not part of legislators’ original conception of the ‘normal’ axes along which hate crimes occur. By 1998, however, a second tier of categories clearly emerged, with sexual orientation, gender, and disability becoming increasingly recognized in state hate crime law. This pattern is replicated in federal hate crime law.96 While less stereotypical than their predecessors, especially early on in the development of hate crime law and discourse, these status markers have become increasingly recognized as axes along which hate-motivated violence, and thus hate crime, occurs. The respective unfolding of these clusters of statuses – the core and the second tier – reflect the history of various post-960s civil rights movements in the U.S.97 Race, religion, color, and national origin reflect the early legal contestation of minorities’ status and rights. Thus, there is a more developed history of invoking and then deploying the law, especially civil rights law, to protect and enhance the status of blacks, Jews, and immigrants. In contrast, the gay/lesbian movement,98 the women’s movement,99 and the disability movement100 reflect a ‘second wave’ of civil rights activism and ‘identity politics’101 in the U.S. Accordingly, sexual orientation, gender, and disability have only recently been recognized in hate crime law in the U.S. As Jenness has shown in her work on the U.S. Congressional hearings on hate crime, these are also more heavily 95 V. Jenness, supra n. 5; J. Levin and Jack McDevitt, supra n. 45. 96 V. Jenness, supra n. 5. 97 R.A. Goldberg, supra n. 14; V. Jenness and Kendal Broad, supra n. 5. 98 B. Adam, The Rise of a Gay and Lesbian Movement (Boston, MA: Twayne Publishers,

1987); U. Vaid, supra n. 16. 99 M.M. Ferree and Beth B. Hess, supra n. 15. 100 R.K. Scotch, supra n. 17; J.P. Shapiro, supra n. 17. 101 R.A. Goldberg, supra n. 14.

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Figure 1.

contested protected statuses than the ‘first wave’ categories.102 Not surprisingly, they remain less embedded in hate crime law. Finally, marital status, creed, age, armed service personnel, and political affiliation are not visibly connected to issues of discrimination and victimization by any particular mass movement; and, they are fairly anomalous provisions in hate crime law. Moving well beyond these rare provisions, an array of newfound provisions are emerging. For example, recall the anti-capitalism/ist provision discussed in the opening paragraph of this article. Although it is not a commonly proposed provision, it is nonetheless an innovative provision that is evoking national press. Similarly, states have proposed legislation that would define one’s position on the abortion debate as a basis for hate crime victimization. California State Senator Deborah Ortiz (D6th District), for example, is sponsoring a measure that would, ‘increase penalties for crime committed against those exercising their freedom of 102 U.S. Congress. 1988. ‘Racially-Motivated Violence.’ Hearings before the subcom-

mittee on criminal justice of the Committee on the Judiciary. 100th Cong., 2nd sess.11 May and 12 July. Serial 144. Washington, D.C.: U.S. Government Printing Office.


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reproductive choice to match penalties for committing crimes classified as hate crimes.’103 The general pattern is that hate crime law has expanded to recognize an increasing number of axes along which violence is organized and to cover a broader and broader array of potential victims of discriminatory violence. This has been accomplished in a variety of general ways. First, it has been accomplished via the passage of more laws that include increasingly expansive lists of status provisions. Grattet, Jenness, and Curry found that the later a state passed a hate crime law, the more likely the state was to have an expansive versus a restrictive list of status provisions.104 This signals legislators’ increasing willingness to use broad reaching laws to address intergroup violence of all sorts. Second, hate crime law has developed via the accumulation of amendments to existing laws, which expands the list of status provisions. For example, the Hate Crimes Statistics Act described earlier originally only included provisions for race, religion, ethnicity, and sexual orientation; however, years after its original passage it is was amended to include a provision for disabilities.105 Similarly, California, which has one of the most robust hate crime laws in the U.S., amended its original statute to include provisions for ‘disabilities,’ ‘gender,’ and situations wherein the perpetrator ‘perceives that the other person has one or more of these characteristics.’106 Third, some states, such as Texas have simply stipulated ‘anyone’ in their specification of a status provision. Fourth, and finally, some legislative bodies have recognized victims that are targeted not because of who they are, but because of with whom they associate. Iowa’s law, for example, defines hate crime as one of the following public offenses when committed against a person or a person’s property because of ‘the person’s association with a person of a certain race, color.’107 This law includes an almost limitless range of ‘victims by association.’ Borrowing from the social problems literature, this process of extending the reach of the hate crime canon can be described as ‘domain expansion.’ Domain expansion occurs when claimsmakers of all sorts – activists, policymakers, legal scholars and other academics, the media, etc. – offer new definitions of the phenomena being deemed problematic. As a result, the boundaries of the phenomenon are expanded and the amount of 103 G. DeGiere, ‘Crimes against Reproductive Rights in California’, Senate Office of

Research. http://www.sen.ca.gov/sor/Reprocrimes.html. (2001), 5. 104 R. Grattet, Valerie Jenness and Theodore Curry, supra n. 6. 105 For an analysis of how this occurred, see V. Jenness, supra n. 5. 106 Ca Penal Code 422.7. 107 Iowa Code Annotated s 729A.2.

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substantive territory falling under the rubric of the social problem – in this case hate crime – increases over time.108 Clearly, this is a central feature of the development of hate crime law in particular and a hate crime canon more generally in the U.S. However, domain expansion is not unique to the problem of hate crime.109 This feature – the process of domain expansion – has both substantive and analytic import for the current content and future direction of the hate crime canon. The substantive importance of domain expansion is obvious: how the domain of the law expands determines what kinds of persons and conduct are prosecutable as hate crimes. The analytic importance of domain expansion, as well as the analytic importance of the hate crime canon resulting from a loose coupling between political mobilization and official state action, is discussed in final section.

3. D ISCUSSION AND C ONCLUSION

It is beyond dispute that U.S. history is replete with violence organized around markers of social differentiation, such as race, ethnicity, nationality, religion, gender, sexual orientation, age, ability, political beliefs and affiliations, etc. Historians and anthropologists alike have documented the many ways in which social differences have been – and continue to be – a basis around which intergroup violence is organized. In the current moment in the U.S, for example, it is not difficult to find journalistic accounts of a plethora of violent acts directed at someone because of ‘what’ they are (as opposed to ‘who’ they are), including: repeated attacks on African Americans who moved into a predominately white neighborhood in Philadelphia; attacks by neighborhood youths on families of Cambodian refugees who fled to Brooklyn; the beating to death of a 108 Of course, some protected statuses are not replicated, thus domain expansion is not

limitless. For example, although the first reference to marital status appeared in New York’s ‘Interference with Civil Rights’ statute adopted in 1982, no other state has adopted that provision. 109 For example, in his work on child abuse and threats to children as a social problem Best examined the evolving definitions of and typifications for child abuse. He found that ‘by 1976, the issue encompassed a much broader array of conditions threatening children. The more general term ‘child abuse’ had replaced the earlier, narrower concept of the ‘battered child,’ and the even broader expression ‘child abuse and neglect’ had gained currency among professionals’. J. Best, Threatened Children: Rhetoric and Concern About Child Victims (Chicago, IL: University of Chicago Press, 1990), 67. At the same time, the law expanded the official domain of child abuse by requiring more categories of professionals to report suspected abuse, while also adopting broader definitions of what constitutes abuse and neglect.


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Chinese-American because he was presumed to be Japanese; the harassment of Laotian fishermen in Texas; the brutal attack on two men in Manhattan by a group of knife-and bat-wielding teenage boys shouting ‘homos!’ and ‘fags!’; the assault on three women in Portland, Maine, after their assailant yelled anti-lesbian epithets at them; the stalking of two lesbians while they were camping in Pennsylvania, including the brutal murder of one of them; the gang rape, with bottles, lighted matches, and other implements, of a gay man who was repeatedly told ‘he got what faggots deserve’; the stabbing to death of a heterosexual man in San Francisco because he was presumed to be gay; and the gang rapes of a female jogger in Central Park and a mentally handicapped teenager in Glen Ridge, New Jersey.110 From a sociolegal studies point of view, what is new and interesting about these types of incidents is the ways in which they have been redefined as ‘hate crime.’ Age-old conduct has emerged to evoke newfound attention and a newfound discourse on ‘hate crime’.111 The discourse on hate crime signifies a new set of subjects (i.e., hate crime perpetrators and hate crime victims), criminal categories and attendant behavior (i.e., hate crimes), and social policy (i.e., hate crime law). The emergence, circulation, and institutionalization of the term hate crime in social, legal, and policy lexicon signals an increasing acceptance of the idea that bias motivated conduct manifest as systematic discrimination is a social problem most intimately connected to ‘the crime problem’ and the allocation of civil rights in America. This formulation of hate crime has a U.S.-born social fact – in the Durkheimian sense of the word – speaks to contemporary crime control efforts, the development of civil and criminal law in the U.S., the allocation of civil rights (to some and not others), and the symbolic status of (select) minorities in the U.S. As with all social facts, especially those falling within the legal domain, hate crime is a contingent and ongoing construction. As a particular social fact, hate crime reflects the outgrowth of the interplay between social movement activism, policymakers, legal culture in the U.S., and the meanings they engender. In addition, a number of social structures and social processes have been, and continue to be, crucial in the development hate crime discourse in the U.S. Most notably, the ‘loosely coupled’ political structure and criminal justice system112 110 C.J. Sheffield, ‘Hate Violence’, in Paula Rothenberg, ed., Race, Class, and Gender in

the United States (New York: St. Martin’s Press, 1992), 388–397. 111 G. Bensinger, ‘Hate Crimes: A New/Old Problem’, International Journal of Comparative and Applied Criminal Justice 16 (1992), 115–123. 112 J. Hagan, ‘Why Is There So Little Criminal Justice Theory? Neglected Macro- and Microlevel Links Between Organization and Power’, Journal of Research in Crime and Delinquency 26 (1989), 116–135.

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and the process of domain expansion113 have been consequential for the development of a hate crime canon in the U.S. With regard to social structure, the loose coupling between the workings of the various institutional spheres that have contributed to the invention, development, and institutionalization of hate crime discourse in the U.S. is significant. Specifically, the nature of the relationship between the social movement activists who invented and continue to promote the social problem of hate-motivated violence, the lawmakers who enact hate crime law that defines the parameters of hate crime (proper), the appellate court judges who fix more elaborate and complicated meanings to select elements of hate crime law (e.g., ‘the intent standard’), and the law enforcement officials who are charged with enforcing the law, has ensured that the content, structure, and workings of hate crime discourse has changed over time. Often this has occurred with unpredictable consequences, most notably the ongoing disconnect between activists’ political intentions (i.e., to combat bigotry) and the content and working of hate crime policy (i.e., to give all ‘equal protection’). As for significant social processes, American legal culture coupled with domain expansion has lead to the emergence of strange bedfellows: violence against Blacks is rendered equivalent to violence against Asians insofar as both are racialized groups in the U.S.; violence organized around ‘race’ or ‘ethnicity’ is rendered equivalent to violence organized around gender or disabilities insofar as both constitute legitimate status provisions; violence against Christians is equivalent to violence against Jews insofar as both fall under the ‘religion’ provision of hate crime law in the U.S.; modern day lynchers now share discursive space with anti-capitalists insofar as both are part of the hate crime discourse in the U.S.; and finally, it has become reasonable to talk about any person targeted because they associate/d with someone targeted because of ‘any’ social category as a hate crime. These outcomes represent just a few of the arguably unanticipated contours of the hate crime canon in the U.S. Department of Criminology, Law and Society Department of Sociology University of California Irvine, California 92697-7080 USA E-mail: [email protected]

113 J. Best, supra n. 109; V. Jenness, supra n. 53.