Hate Crime Law_Policy, Policing, and Prosecution - UCI

FROM SYMBOLIC LAW TO CRIMINAL JUSTICE PRACTICE: HATE CRIME POLICY, POLICING, AND PROSECUTION*

Valerie Jenness Department of Criminology, Law & Society Department of Sociology University of California Irvine, California 92697-7080 e-mail: [email protected]

April 15, 2008

_______________ * Forthcoming in the Handbook on Crime and Public Policy. I would like to thank Jennifer Sumner for research assistance with this chapter.

I. Introduction Over the last three decades bias-motivated violence has been defined, promoted, and addressed as a contemporary social problem in newfound ways, most predominantly as a criminal justice concern. What Lawrence (2006) calls “The Hate Crime Project” marks an important moment in the history of crime control efforts, the development of criminal and civil law, the allocation of civil rights, and the expectations for law enforcement to “do something” about bias, prejudice, and hate-motivated conduct. As described in this chapter, the U.S. criminal justice system—from local police and prosecutors to the U.S. Department of Justice—has begun to do something about it by institutionalizing data collection efforts, systematizing police responses to bias-motivated incidents, and setting the stage for successful prosecutions. Almost three decades after the passage of the first hate crime law, it is clear that the enforcement of hate crime law is taking place in a myriad of ways, telling patterns are emerging, and, to use the language of sociologists, hate crime law, policy, and practice is increasingly institutionalized in the U.S. These patterns reveal that “hate crime” policy in the U.S. is not reducible to “just” symbolic politics with no enforcement effects as early analysts posited. Indeed, a growing body of evidence on the policing and prosecution of hate crime controverts the notion that hate crime law is going unenforced; but, of course, that does not mean it is going fully enforced. Unfortunately, the existing literature on the enforcement of hate crime law, especially at the level of prosecutorial practices, is not yet sufficiently developed to draw definitive conclusions about the contours of and consequences of hate crime law enforcement in the U.S. For example, the literature is ill-equipped to address one of the most basic social science questions about criminal justice policy in general and policing and prosecution more particularly: is enforcement disparate?

Nonetheless, accumulating evidence suggests that hate crime policies are proliferating at local, state, and federal levels in the U.S. and abroad. Moreover, in the U.S. under some circumstances law enforcement officials increasingly are taking steps to actually enforce hate crime law; the result is

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variation in reporting of hate crime across jurisdictions and nascent efforts to successfully prosecute predatory offenders under the rubric of “hate crime.” Recognizing that other review articles have provided impressive examinations of the causes and manifestations of bias motivated violence in general and hate crime in particular (Green, McFalls, and Smith 2001), here the primary focus is on criminal justice concerns related to hate crime. To begin, the next section presents a summary of early assessments of hate crime law and related criminal justice concerns with bias-motivated violence as “merely symbolic politics” with minimal enforcement effects. The section that follows contextualizes this assessment by revealing that hate crime as a criminal justice concern is born of a modern anti-hate movement. Thereafter, a brief summary of federal and state hate crime law is presented. Then, the bulk of this chapter is devoted to detailing the social organization of the enforcement of hate crime law as well as the outcomes of law enforcement practices surrounding hate crime law in the U.S., including empirical data on the policing and prosecution of hate crime. Finally, the chapter concludes with a discussion of how hate crime law and law enforcement practices that derive from it are unfolding beyond U.S. and some final thoughts on the future of hate crime policy. II. Early Assessments of Hate Crime Law as Symbolic Politics In Hate Crimes: Criminal Law & Identity Politics, Jacobs and Potter (1998) persuasively demonstrated that “Fundamentally, hate crime laws are symbolic statements requested by advocacy groups for material and symbolic reasons and provided by politicians for political reasons” (Jacobs and Potter 1998:65). They presented hate crime laws and attendant criminal justice policies as an example of legislators ceding the policymaking process to interest groups. Hate crime laws, they argued, merely represent an exercise in symbolic politics. Likewise, Haider-Markel (1998:69) posited that “hate crime policies and implementation efforts are largely attempts by politicians to satisfy organized interests in competitive political systems” and Beale (2000) presented the expressive function of federal hate crime law, especially its capacity to influence public perception of bias-motivated violence. More recently, Bell (2002) demonstrated how “street level enforcers of hate crime have the power to effectively nullify hate

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crime statutes through non-enforcement, thereby reducing them to an empty symbolic gesture” (cited in Perry, 2003:431). Combined, these arguments suggest that hate crime laws are powerful symbols that result in limited or no changes in actual law enforcement practices. These claims and the conclusions they engender need to be put into a temporally-sensitive context. From the introduction and politicization of the term “hate crime” (and its synonym “bias crime”) in the late 1970s to calls for increasing enforcement of hate crime law at the beginning of the twenty-first century, modern social movements have constructed the problem of bias-motivated violence in particular ways (Jenness 1995a, 1995b, 1999; Jenness and Broad 1997; Maroney 1998), politicians at both the federal and state level have enacted legislation that defines the parameters of hate crime (Earl and Soule 2001; Grattet, Jenness, and Curry 1998; Haider-Markel and Meier 1996; Jenness and Grattet 1996, 2004; Soule and Earl 2001), judges have elaborated and enriched the meaning of hate crime as they grappled with constitutionality questions (Gellman and Lawrence 2004; Phillips and Grattet 2000), and law enforcement officials have varied in how they investigate, classify, and prosecute bias-motivated incidents (Bell 2002; Boyd, Berk, Hamner 1996; Haider-Markel 1998; Grattet and Jenness 2005, 2008; Jenness and Grattet 2005; Martin 1995, 1996; McPhail and Jenness 2006). Most importantly, three decades after the passage of the first modern day hate crime law, State Attorneys General, Governors, state commissions and task forces, social movement organizations, and citizen groups continue to call for enhanced efforts to enforce hate crime law. Combined, all of this now-institutionalized activity derives from a modern anti-hate crime movement in the U.S. III. Setting the Stage for the Emergence of Hate Crime as a Criminal Justice Policy Issue To set the stage for an assessment of hate crime-related criminal justice policy and law enforcement practices in the modern era requires first understanding the context in which “hate crime” emerged as a criminal justice concern. The term hate crime emerged in the second half of the twentieth century and initially took form in the 1980s as the result of an anti-hate crime movement. As Maroney (1998) documented in detail, the anti-hate crime movement in the U.S. emerged on the coattails of

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previously institutionalized social movements; specifically, modern understandings of “hate crime” in the U.S. are a product of a confluence of several social movement discourses, most notably the black civil rights movement, the modern women’s movement, the gay and lesbian movement, the disabilities rights movement, and the crime victims’ movement (see also Jenness and Broad (1997) and Jenness and Grattet (2004)). Each of these preexisting social movements sustained an institutionalized commitment to publicizing and combating violence directed at minorities because of their minority status. 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 victims’ movement “called attention to the political context of personal victimization” (Maroney 1998:579). Combined, these preexisting movements laid the foundation for a new movement to question, and make publicly debatable, issues of "rights" and "harm" as they relate to a variety of constituencies (Maroney 1998). This questioning took place in both extra legal and legal realms as the public became increasingly exposed to the term “bias crime” and “hate crime,” which continue to be used interchangeably in the U.S. Although early on the anti-hate crime movement promoted the concept “hate crime” without the official backing of the state, over time—throughout the 1980s and 1990s—rapid legal reform resulted in bias motivated violence becoming criminalized in heretofore unknown ways and the term “hate crime” achieving legal status as it came to signify a particular type of criminal conduct recognized by the state. Specifically, in the last quarter of the twentieth century lawmakers in the U.S. began to respond to what they perceived to be an escalation of violence directed at minorities and political pressure by those promoting the interests of minorities by “making hate a crime” (Jenness and Grattet 2004). As a result, during the latter part of the twentieth century and continuing into the early part of the twenty-first century legislators embraced legal reform that further criminalized discriminatory violence and, in some cases, also articulated a cause for civil action for bias-motivated violence. As of the writing of this chapter, the

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federal government has adopted multiple pieces of legislation that are routinely recognized as hate crime law and almost every state in the U.S. had adopted a statute recognized as a hate crime law. IV. Federal and State Hate Crime Law Federal Law In 1990 President George H. W. Bush signed the Hate Crimes Statistics Act (HCSA). The HCSA originally required 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” (Pub. L. No. 101-275). The HCSA was amended by the Violent Crime Control and Law Enforcement Act of 1994 such that crimes motivated by a bias against persons with disabilities are now recognized as hate crime. The Federal Bureau of Investigation (FBI) started collecting data for this additional type of bias on January 1, 2007. Also, the HCSA was amended by the Church Arson Prevention Act in 1996, which removed the sunset clause in the original Act and permanently extended the data collection mandate. As a data collection law, the HCSA requires the Attorney General to gather and make available to the public data on biasmotivated crime every year. The rationale for the passage of the HCSA, as well as the amendments identified above, was to mandate the collection of empirical data necessary to develop effective policy related to bias-motivated crimes. Those supporting the HCSA argued that involving the police in identifying and counting hate crimes could help law enforcement officials measure trends, fashion effective responses, design prevention strategies, and develop sensitivity to the particular needs of victims of hate crimes. Notably, the HCSA 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 1994 Congress passed the Hate Crimes Sentencing Enhancement Act (HCSEA) in order to enhance penalties for crime committed for bias-motivated reasons. The HCSEA identifies eight predicate

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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 at trial determines beyond a reasonable doubt are hate crimes” (Pub. L. No. 103-322). 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” (Pub. L. No. 103-322). Although broad in form, this law addresses only those hate crimes that take place on federal lands and properties. It was not until seven years after the passage of the HCSEA that it was invoked for prosecutorial purposes for the first time. 1 Also passed in 1994, 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” (Pub. L. No. 103-322). The VAWA originally allocated over 1.6 billion dollars over five years 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; since then, billions more have been allocated. A central dimension of the legislation, Title III, provides a civil remedy for “gender crimes.” Title III 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. This allowance implicitly acknowledges that some, if not most, violence against women is not gender-neutral; establishes the possibility that violence motivated by gender animus is a proper subject for civil rights action; and affixes the term “hate crime” to “a crime of violence committed because of gender or on the basis of gender, and due, at least in part, to animus based on the victim’s gender” (Pub. L. No 103-322). Although this law was ruled unconstitutional on the grounds that it exceeded the

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In 2001 then Attorney General Ashcroft announced the indictment of Darrell David Rice on homicide charges for stalking and murdering two lesbians camping in the Shenandoah National Park (U.S. Department of Justice 2001). In 2004 the charges were withdrawn “without prejudice.” 6

constitutional reach of the Congress into the purview of the states (United States v. Morrison 529 U.S. 598 (2000)), it received national attention and was predicated upon and promoted the inclusion of gender in the concept of a hate crime (Angelari 1994).

State Law At the state level, a plethora of hate crime laws have been adopted. These laws, which have simultaneously recognized, defined, and responded to discriminatory violence, 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 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, involvement in civil or human rights, and armed service personnel. In addition, some 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 states have statutes that prohibit institutional vandalism and the desecration or the defacement of religious objects, the interference with or disturbance of religious worship, and cross-burning. 2 Well over half of the so-called penalty enhancement laws for crimes motivated by certain biases were based on a model developed and disseminated by the Anti-Defamation League (ADL) (1997). Although hate crime laws differ in important ways, they share core elements (Grattet et al. 1998). In particular, they create or enhance penalties for criminal behavior motivated by bias; they include some combination of status provisions the delineate axes of social differentiation, such as race, religion, national origin, sexual orientation, gender, and disability; and they contain an “intent standard” or “motivational requirement” for conviction under the statute. Arguably the most robust hate crime law in

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For a routinely updated inventory of state level hate crime law, see the ADL’s map of state law (http://www.adl.org/learn/hate_crimes_laws/map.html, last visited April 15, 2008).

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the U.S. can be found in California: No person, whether or not under color of law, shall by force or threat of force, willfully injure, intimidate, interfere with, oppress, or threaten 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, or because he or she perceives that the other person has one or more of these characteristics (Ca Penal Code 422.7). As quickly as hate crime laws were proposed and adopted, social scientists began to analyze this body of law for what it can reveal about lawmaking as a particular type of public policymaking 3 while legal scholars and the courts debated the constitutionality of hate crime law in ways that aligned with larger debates about the regulation of hate speech (Gould 2005; Jones 1992; Lawrence 1993, 1999) and the reach of federalism (Chorba 2001; Lawrence 1999; Lee and Fernandez 1990; Uhrich 1999). Although some compellingly argued that hate crime laws are “inherently unfair” (Goldberger 2004) and infringe on constitutionally guaranteed rights to free speech, equal protection, and due process, by the turn of the twentieth century, the constitutionality of hate crime law had been well-established. As Phillips and Grattet (2000) concluded in empirical examination of the evolution of judicial decision-making surrounding 38 hate crime-related cases that came before appellate courts between 1984 and 1999, “the central constitutional issues regarding speech, due process and equal protection presented perplexing questions upon which reasonable people could, and did, disagree. Yet such questions have now been largely resolved [by the Courts]” (Phillips and Grattet 2000:575). Hate crime laws are now a viable form of state-sanctioned formal social control. As such, they set the stage for newfound law enforcement mandates to police, prosecute, and punish bias-motivated violence. V. Law Enforcement Responses to Hate Crime Law As social scientists analyzed the parameters of hate crime statutes and the courts reached

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For example, see Jenness and Grattet (1996, 2004), Grattet et al. (1998), Haider-Markel and 8

agreement on what forms of hate crime statutes survive constitutional tests, law enforcement officials grappled with whether, when, and how to enforce hate crime law. The mandate to enforce hate crime law brings with it definitional ambiguities related to establishing the parameters of “hate crime” in general and “motive” in particular; political controversies surrounding hate crime and its relationship to “political correctness” in both law enforcement agencies and communities alike; and organizational dilemmas connected to agency structures, resource allocation decisions, and workplace culture (Cogan 2002; Franklin 2002). These dynamics have influenced how the policing and prosecution of hate crime has unfolded in the U.S. Policing What is known about the enforcement of hate crime law comes from a growing number of published studies that shed insight into how the organization and practice of policing shape whether, when, and how hate crime gets detected and reported. According to Wexler and Marx (1986), who conducted one of the first published studies of the policing of hate crime, as late as the mid 1980s, a common municipal response to bias-motivated violence was “to look the other way in the hope that it will disappear…. Given the many other pressing demands on urban police, it is not surprising that law enforcement in this area (apart from the most extreme cases) has been minimal” (Wexler and Marx 1986:206). In this context, they examined the Boston Police Department’s efforts to respond to race- and ethnicity-based violence by implementing a department-wide policy and creating a specialized policing unit that was effective in uncovering incidents that, under traditional reporting methods, appeared commonplace. They reveled that in 1978 the Boston Police Commissioner established written guidelines that “were to alter dramatically” (Wexler and Marx 1986:210) how bias crimes would be handled in Boston. Specifically, new police practices related to bias-motivated crime resulted in intensive investigation after an incident, covert surveillance, victim decoys, and cover tests. In the history of law enforcement’s response to hate crime, these policing practices were certainly well ahead of their time.

Meier (1996), Earle and Soule (2001), Savelsberg and King (2005), and Soule and Earl (2001). 9

In the mid-1990s a series of published studies documented the institutional, organizational, community, and individual factors that shape how the policing of hate crime unfolds. For example, Walker and Katz’s (1995) work examined the creation of bias-crime units as a significant new feature of American law enforcement. Based on a study of sixteen agencies that reported having a bias crime unit, this work reveals three important findings. First, there is considerable variation among the departments that reported having a special bias crime unit, including the units being located in different subdivisions of the department bureaucracy and staffed by different types of officers. Second, personnel in these units use discretion to define their mission more broadly than other elements of law enforcement by addressing the more general problem of racial and ethnic conflict. Third, the most important factor related to the effective administration of a bias crime unit is the extent to which a department is committed to responding to the general problem of bias crime. Tellingly, the commonality across these specialized units is that they all had written procedures for handling bias crimes, even as the content of the procedures varied. Outside the realm of specialized units, the commitment to enforce hate crime laws is arguably most visibly reflected in the existence of special policies and formal statements made by high-ranking law enforcement officials. As Jenness and Grattet’s (2005; Grattet and Jenness 2005) recent empirical work reveals, there is a proliferation of hate crime policies among local law enforcement agencies in large states like California, 4 even as many city and county level law enforcement agencies have yet to adopt a formal policy designed to implement the enforcement of hate crime law decades after state hate crime law is in place. There are a plethora of agency and community factors that explain this variation in policy adoption, most notably the degree to which the law enforcement agency are susceptible to environmental influences and the degree to which the organizational culture aligns with the hate crime policy innovation (Jenness and Grattet 2005). Moreover, the content of local policies vary immensely in terms of how they define and oprationalize hate crime; delineate an intent or motivation standard as well as status and

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For more along these lines, see Wilson and Ruback’s (2003) work on law enforcement in 10

conduct provisions; and codify guidelines for officers to detect, report, classify, and investigate incidents that might qualify has hate crime (Grattet and Jenness 2005). Arguing that “the policies and the definitions of hate crime contained therein are an important venue through which local meaning-making related to hate crime occurs” (Grattet and Jenness 2005:911), they demonstrate that what constitutes a “hate crime” from an enforcement (rather than statutory) point of view is determined at the local level. As their work shows, this meaning making is informed by professional groups, social movements, federal and state sponsors, early prototypes of hate crime policy, community groups, and peer agencies and a function of coercive, mimetic, normative, and actuarial processes that direct the larger process of institutionalization (Grattet and Jenness 2005). Variation in the content of local law enforcement policy aside, data collected through the Law Enforcement Management Administrative Statistics (LEMAS) survey of police departments conducted by the U.S. Bureau of Justice Statistics reveal that the implementation of hate crime law enforcement is increasingly institutionalized across the U.S. By the turn of the century, the enforcement of hate crime law was faring well when compared to other policing pursuits, such as victim assistance, domestic violence, gangs, and community policing (Figure 1). Of course, the findings presented in Figure 1 do not speak to how, in concrete terms, officers are enforcing hate crime law on the ground. —Figure 1 About Here— A series of empirical studies have illuminated how law enforcement agencies and law enforcement officers on the ground actually enforce hate crime law, thereby shedding insight into the sources of variation in law enforcement officials’ response to bias-motivated conduct in communities. For example, taking an in-depth look at multiple agencies in different states, Martin (1995, 1996) published a comparative case study examining how two jurisdictions, New York City and Baltimore County, Maryland, responded to hate crime in the 1990s. Treating these two jurisdictions as “leaders in the movement to emphasize bias-motivated incidents,” she found that these “agencies follow very similar

Pennsylvania. 11

procedures for identifying such offenses but employ different practices for investigating and verifying hate crimes” (Martin 1996:459). In particular, the largely white, suburban Baltimore County, the police embraced a community-oriented approach while the New York City Policy Department’s deployed a more traditional investigative approach. Bringing analytic attention to the communities and organizational structures in which these practices emerged, Martin’s work emphasized the multitude of interpretive processes that serve to demarcate whether criminal incidents get classified as hate crime. She concludes “hate crimes, like other types of crimes, ultimately emerge through police definitions and situations and interpretations of laws and policies” (Martin 1996:471). Likewise, Boyd et al.’s (1996) ethnography of the decision-making practices of police detectives in a large urban police department conclude: Far from finding it problematic to interpret and classify specific incidents, police detectives engage in certain routine practices in order to determine the hate-related status of an incident. Specifically, police rely on typifications and commonsense reasoning (Garfinkel 1967) regarding the constituent attributes of hate crimes and estimations of the proper role of the police as a basis for their interpretive decisions. These reasoning practices are inflected by the particular institutional arrangements of the division and the department in which the detective operate (Boyd et al. 1996:821-822). These typifications and attendant reasoning practices are anchored in beliefs about the characteristics of “normal hate crimes” as well as efforts to determine “what really happened” that are geared toward arriving at assessments of “bias motivation” only when other motivations can be effectively elimination. Corroborating and elaborating many of the themes presented thus far, the only book-length treatment of the enforcement of hate crime law “on the ground,” Policing Hatred (Bell 2002), relies upon ethnographic observations, interviews, police records, and media accounts to examine how a specialized detective unit, the “Anti-Bias Task Force” (ABTF) in “Center City,” enforces hate crime law. Bell (2002) documents how the organizational history and structure of the ABTF, as well as the community in which it resides, determined the range of possibilities for the development of hate crime policy and the

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enforcement of hate crime law. More than any other published work, Policing Hatred explains how hate crime comes into being at the hands of those working the front lines of the criminal justice system in the context of a highly charged institutional environment, organizational structure, and community context. Systematizing some of the findings generated by the ethnographic work described above, Nolan and Akiyama’s (1999, 2002) work on the enforcement of hate crime law suggests that differences in reporting can be attributed to variables the affect whether agencies report hate crime as well as variables the affect whether police officers record crime. Summarized in Table 1 and Table 2, respectively, these variables act as “encouragers” or “discouragers” (Nolan and Akiyama 1999). Combined in different constellations, these variables point to the factors that affect law enforcement participation in hate crime reporting. Not surprisingly, one of the “encouragers” is supportive organizational policies. Corroborating this view, Balboni and McDevitt’s (2001) research on factors that affect hate crime reporting among law enforcement personnel and across law enforcement agencies lead them to conclude that “although individual officers may have differing opinions about the nature of the crime, if there is a policy about how to proceed with a hate crime investigation, officers will respect that policy” (Balboni and McDevitt 2001:15). Even more recently, Grattet and Jenness (2008) relied on data from hundreds of California law enforcement agencies and hierarchical linear modeling to reveal that policies do, indeed, increase the rate of official hate crime reporting net of other community and agency factors. Moreover, the degree to which law enforcement agencies are integrated into the communities in which they reside and to which they respond amplifies the effect policies have on official reporting. —Table 1 About Here— —Table 2 About Here— Data Collection and Empirical Patterns Despite early analyses that anticipated obstacles to enforcement of the HCSA (Fernandez 1991; Uhrich 1999), it is clear that law enforcement participation in the national data collection effort has steadily increased (Table 3). By the turn of the century, fifty states were participating in this data

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collection effort, representing almost 12,000 law enforcement agencies covering over 80% of the population. However, over 80% of the reporting agencies routinely report zero hate crimes (Nolan, Akiyama, and Berhanu 2002; see also, Grattet and Jenness 2006; King 2007). In one of the most systematic analysis of the production of hate crime statistics, King (2007) demonstrates that compliance with the HCSA is less likely in places with larger black populations, and that this finding is contingent upon region; that is, a positive correlation in the Northeast contrasts with an inverse association in the South. Finally, King also demonstrates that organizational facets of law enforcement affect compliance with the HCSA, with a commitment to community policing positively affecting compliance. —Table 3 About Here— The implementation of the HCSA has resulted in the production of a national inventory of officially reported incidents, offenses, and victims of hate crime in the U.S. As Table 4 reveals, the annual number of hate crime incidents reported in the U.S. ranged from 5,932 in 1994 to 9,730 in 2001; race has consistently been the type of bias generating the most incidents, with rare exception followed by religion, sexual orientation, ethnicity/nationality, and disability. In 2006, the most recent year for which official data are available, 2,105 law enforcement agencies reported 7,722 hate crime incidents involving 9,080 offenses, 9,652 victims, and 7,330 offenders. In 2006 victims of hate crime were most often selected based of their race (52%). Of those targeted because of race, two-thirds (66%) were chosen because of anti-black sentiment while a little over one-fifth (21%) were selected because of anti-white bias. A little less than one-fifth (18%) of all hate crime victims were chosen because of religious affiliation, with the majority of these victims being targeted because of anti-Jewish sentiment. A little over 10% of all hate crime victims targeted for religion were targeted due to their Muslim beliefs while almost 5% were targeted because they are Catholic. Victims chosen because of their sexual orientation comprised 15% of the victims, with the majority of those individuals being targeted because of anti-male homosexuality sentiment (62%). Victims chosen because of their ethnicity or national origin comprised about 13% of those targeted, with almost two-thirds of those victims (63%) being targeted because of their Hispanic

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heritage; and about 1% of all hate crime victims were targeted because of a bias against disability. The majority of “known offenders,” on the other hand, are white (59%), and slightly over one-fifth (21%) being black and fewer still (6%) consists of individuals of various races/multiple races). Finally, of the 9,652 victims of hate crime in 2006, a little more than half (57%) were victims of crimes against persons, most commonly intimidation (46%) and thereafter simple assault (32%) and aggravated assault (22%); a little less than half (43%) were victims of crimes against property, most commonly destruction/damage or vandalism (80%) and thereafter larceny-theft (7%), robbery (5%), and burglary (4%); and less than 1%, which equals 38 victims, were victims of crimes against society. —Table 4 About Here— To put these patterns into perspective, it is useful to consider findings revealed by two other sources of data: the Bureau of Justice Statistics (BJS) National Crime Victim Survey (NCVS) and the FBI’s National Incident-Based Reporting System (NIBRS). In 2005 a report published by the BJS, “Hate Crimes Reported by Victims and Police” (U.S. Department of Justice 2005), revealed similar findings from multiple data sources (U.S. Department of Justice 2005). For example, the NCVS and the UCR demonstrate similar motivations for hate crimes; motivations perceived by NCVS victims of crime not reported to the police are similar to ones reported to the police; and the basic categories of offenses motivated by hate are similar for both the NCVS and the UCR. However, there are also some points of departure in the portrayals derived from different data sets, including: some basic characteristics of hate crime victims differ in the NCVS and the NIBRS, with higher percentages of NCVS hate crime victims being women compared to the NIBRS hate crime victims (49% and 35%, respectively), a higher percentage of white victims in the NCVS data than the NIBERS data (84% and 67%, respectively), a higher percentage of older victims in the NCVS data compared to the NIBRS data (64% and 45%, respectively, were over 30); some basic characteristics of hate crime offenders differ between the NCVS and the NIBRS, with a smaller percentage committed by one person in the NCVS compared to the NIBRS (61% and 68%, respectively); offenders reported by the NCVS were more likely to be strangers than

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offenders in the NIBRS (55% and 36%, respectively); and the NCVS offender were more likely than the NIBRS offenders to have a firearm, sharp implement, or blunt object (30% and 19%, respectively). In addition to these comparisons, the findings from this report reveal that victims have reported to the NCVS an average of 191,000 hate crime incidents annually since 2000; 44% of hate crimes are reported to the police; and victims who report hate crimes to police want to punish the offender and prevent further crimes while four out of ten victims who did not report hate crime to the police preferred to handle it another way. In a provocative analysis of official hate crime data, tellingly titled, “The Real Story of the U.S. Hate Crime Statistics: An Empirical Analysis,” Rubenstein (2004:1220) rightly reminds consumers of these data that “it is worth noting in this context that hate crimes constitutes a very small percentage of all crimes, about .07%, or seven of every 10,000 crimes, nationwide.” By adjusting for population size, Rubenstein persuasively demonstrates that these official data actually reveal that the gay population is the most at risk for hate crime victimization when compared to Jewish and Black populations. Table 5 presents the annual rate of hate related victimization per 1,000 person computed by the BJS; tellingly, it does not include an estimate for sexual orientation. —Table 5 About Here— Prosecution Unfortunately, the literature on the prosecution of hate crime is considerably less developed, with only a few empirical studies of the prosecution of hate crime fully executed and even fewer still finding a home in reputable journals. As late as 1998 in the history of hate crime law, Maroney (199:607) reported: “no empirical research has been done to support or refute the premise of selective prosecution.” It is only recently that research on hate crime prosecutorial practices and outcomes have begun to surface (King 2006; King, Messner, and Ballar 2006; McPhail and Jenness 2006; Phillips 2006). More recently, in a working paper devoted to “The Hate Crime Project and its Limitations: Evaluating the Societal Gains and Risk in Bias Crime Law Enforcement,” Lawrence (2006:7) concedes that empirical data that address the

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consequences of hate crime law at the judicial decision-making level are “hard to come by” and that “broad legal or sociological generalizations will fill the gap. The better approach, of course, would be for these data to be collected and studied.” Some prosecutors have gone on record rejecting hate crime laws as useless and unenforceable (Jacobs and Potter 1998; see also Lawrence 2006) while others have strongly embraced them as a meaningful response to community strife (McPhail and Jenness 2006). With regard to the former, at least in the abstract, hate crime implies greater evidentiary burdens, more effort to spell out the nuances of hate crime law to juries, and, generally, more time and energy to prepare cases given added evidentiary burdens (Finn 1988). For prosecutors who are understaffed and subjected to heavy caseloads, such laws may represent an extra set of burdens they prefer to avoid in an occupation where one’s work is often evaluated in terms of conviction rates. As a prosecutor in Texas explained: If I believed personally that the case was racially motivated, but I thought that doing that [charging a hate crime] would detract from the actual commission of the crime and might jeopardize the guilty plea, then I would just try the case as a regular offense. The law allows us, in the code of criminal procedure, to offer anything in the punishment that the judge deems relevant for punishment. So, I would probably just save that for punishment, and call witnesses to prove that and then argue to the jury that that needs to move up the range of punishment. This is the safer course (cited in McPhail and Jenness 2006:97). In contrast, other prosecutors view hate crime law as an extra tool to contribute to the management of crime and intergroup conflict in their community. As another Texas prosecutor explained: I certainly would relish the opportunity to go after somebody who committed a crime and victimized somebody just because of their sexual orientation, or just because of race. I would love that and do it with glee. I would use every tool at my disposal to do it because I genuinely think that it is a worse person, a more dangerous person, who hurts somebody because of who they are rather than because of drugs, alcohol, or greed (cited in McPhail and Jenness 2006:107).

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Tellingly, both of these explanations come from prosecutors in the same state, enforcing the same criminal code. The federal government and state governments increasingly have encouraged government officials charged with crime control to prosecute of hate crime by producing and disseminating resources in the form of periodicals. With regard to the federal effort, for example, as early as 1992 the DOJ/FBI published a Hate Crime Statistics Resource Book (U.S. Department of Justice 1992); in 1995 the U.S. DOJ/Office of Victims of Crime created a National Bias Crimes Training curriculum designed to provide assistance for law enforcement officials as well as victim assistance professionals (U.S. Department of Justice 1995); in 1998 the DOJ/National Institute of Justice created and distributed a guide to Prosecutorial Response to Hate and Bias-Motivated Crime (American Prosecutors Research Institute 1998); and in 2000 the DOJ/Bureau of Justice Assistance published a booklet on Addressing Hate Crimes: Six Initiatives that are Enhancing Efforts of Criminal Justice Practitioners (U.S. Department of Justice 2000). At the state level, prosecutors have produced and disseminated manuals that provide guidelines for effectively prosecuting hate crime. For example, in California the Attorney General developed a “Hate Crime Rapid Response Team Protocol for the Development of Department of Justice Resources.” Likewise, at the city level, municipalities have sought to secure compelling evidence for hate crime convictions. For example, the City of Sacramento secured a $100,000 grant from the Bureau of Justice Assistance to deploy a sophisticated vehicle that permits close yet covert surveillance of hate crime suspects (U.S. Department of Justice 1997). Data Collection and Empirical Patterns Information on the empirical parameters of hate crime prosecution at the federal and state level is limited to official data from the U.S. Department of Justice (DOJ), State Attorneys General, and the National Prosecutors Survey (NPS) conducted by the BJS. 5 Unfortunately, to date there are not yet any published studies of the degree to which hate crime is being prosecuted in the U.S. and the factors that

5

In addition, see the Survey of Prosecutorial Responses to Bias-Motivated in Crime in the United 18

predict prosecutors’ decisions to pursue hate crime charges. At the federal level, the Civil Rights Division of the U.S. DOJ is charged with enforcing and prosecuting federal hate crimes laws. Federal hate crimes prosecutions are relatively few in number, in part because of the narrow scope of the federal hate crimes law and because of federal reluctance to preempt or disrupt local prosecutions. According to the DOJ, from Fiscal Years 1998 to 2001, the average number of prosecutions was 28.5.6 In recent years the DOJ has prosecuted a number of high profile hate crime cases. In fiscal year 2007, for example, the DOJ convicted 189 defendants of civil rights violations, the largest number in the history of the Department.7 Although it is difficult to determine what proportion of the DOJ’s civil rights cases qualify as hate crime convictions proper, it is telling that from fiscal year 2001 to fiscal year 2007, the DOJ charged 62 defendants in 41 cross-burning cases. 8 In 2007 the DOJ reported the following examples of cases prosecuted by the Civil Rights Division’s Criminal Section: !

Conspiracy to threaten, assault, and murder African-Americans. United States v. Saldana: Four members of a violent Latino street gang in Los Angeles were convicted of participating in a conspiracy aimed at threatening, assaulting, and murdering African-Americans in a neighborhood claimed by the defendants’ gang. Three of the defendants were also charged with, and convicted of, a federal hate crime violation stemming from the murder of an African American who was killed because he was black and because he was using a public street claimed by the gang. All four defendants received life sentences.

States, 1994-1995. U.S. Department of Justice, Office of Justice Programs. National Institute of Justice. 6 Fiscal Year 2001 prosecutions related to 9-11 backlash consider only the first few weeks following the attacks. According to an interview on July 23, 2003 with a staff member of the Criminal Section of the Civil Rights Division, only one September 11-related hate crime prosecution is included in the FY2001 data. U.S. Department of Justice, "Fiscal Year 2000 Performance Report and Fiscal Year 2002 Performance Plan: Appendix A," April 1, 2001 [online] http://www.usdoj.gov:80/ag/annualreports/pr2000/AppAFY2000disc.htm (retrieved July 22, 2003) and Human Rights Watch telephone interview with a staff member of the Criminal Section of the Civil Rights Division, Washington DC, July 23, 2003. http://www.hrw.org/reports/2002/usahate/usa110202.htm#P173_21889, last visited April 15, 2008. 7 http://www.usdoj.gov/opa/pr/2007/November/07_crt_921.html, last visited April 15, 2008. 19

!

Racial cross burnings outside homes. United States v. Shroyer and United States v. Youngblood: Individuals in Indianapolis and Detroit, respectively, were successfully prosecuted for burning crosses outside the homes of biracial families with the intent to interfere with victims’ housing rights.

!

Racial intimidation of a biracial family. United States v. Fredericy and Kuzlik: Two men were convicted in Cleveland, Ohio, for their roles in pouring mercury, a highly toxic substance, on the front porch and driveway of a bi-racial couple and their young child. This raciallymotivated act was done with the intent to force the victims out of their home.

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Assaults by members of national white supremacist organization. United States v. Walker: Three members of the National Alliance, a notorious white supremacist organization, were convicted for assaulting a Mexican-American bartender at his place of employment in Salt Lake City, Utah. These same defendants allegedly assaulted an individual of NativeAmerican heritage outside another bar in Salt Lake City.

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Race-based murder of African-American. United States v. Eye and Sandstrom: The defendants in this pending death penalty case in Kansas City, Missouri, have been charged with shooting and killing an African-American man as he walked down the street. The government alleges that the defendants shot the victim because of his race and because he was walking on a public street.

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Cold case against former Klansman for kidnapping and conspiracy in connection with murder of two African-Americans. United States v. Seale: This case stemmed from the 1964 murders of 19-year-old Charles Moore and Henry Dee in Franklin County, Mississippi. In June 2007, former Klansman James Seale, 71, was convicted of kidnapping and conspiracy in connection with the murders of Moore and Dee. The defendant received two life sentences.

The DOJ continues to work with the National Association for the Advancement of Colored People

8

http://www.usdoj.gov/opa/pr/2007/November/07_crt_921.html, last visited April, 2008. 20

(NAACP), the National Urban League (NUL), and the Southern Poverty Law Center (SPLC) to identify additional unresolved civil rights era murders. 9 Turning to the state level, in 1992 the NPS, a biennial survey of chief prosecutors in state court systems that is designed to obtain detailed information on prosecutors’ offices, asked “During the past 12 months, did your office prosecute any of the following kinds of felony cases” and, for the first time, listed “hate crime” as an option. In response, out of 271 respondents, 19.6% indicated yes, while 42.4% and 38% indicated “no” and “not applicable,” respectively. In the 2001 NPS, out of 2,341 respondents, the proportion that indicated “yes” remained about the same (18.2%), with 72.2% indicating “no” and 9.6% “missing data.” To put these more recent numbers in perspective, it is telling that hate crime does not fare well when it comes to comparisons with the other felony offenses on the survey (Figure 2). In fact, hate crime comes in toward the bottom of the list, with only “telemarketing fraud” and “excessive police force” coming in with a lower percentage of offices indicating “yes.” —Figure 2 About Here— At the state level, California has arguably sustained the most impressive data collection effort relevant to the prosecution of hate crime. Summarized in Table 6, in 1995 the California Attorney General begin to publish an annual report on hate crime in California that includes a section on the prosecution of hate crime in California. Also summarized in Table 6, in 2006 the Attorney General received a total of 1,306 hate crime reports. Of these, 363 hate crime cases were referred to prosecutors. From the 334 cases filed by District and City Attorney offices for prosecution, 272 were filed as hate crimes and 62 were filed as non-bias motivated crimes. For the 249 cases with a disposition available for the report, 140 were hate crime convictions, 78 were for other convictions, and 31 were not convicted. At the end of the day, threefourths (75%) of the hate crimes referred for prosecution were filed as a hate crime and half (51%) of the hate crime cases filed resulted in hate crime convictions. —Table 6 About Here—

9

http://www.usdoj.gov/opa/pr/2007/November/07_crt_921.html, last visited April 15, 2008. 21

VI. Moving Beyond U.S. Borders Moving outside the U.S., “hate crime”—as a concept and set of criminal justice policies and practices—has diffused across international borders. Various Western countries, especially those sharing a predominantly English speaking culture, deploy the concept to reference bias-motivated conduct in their respective legal and cultural milieu (Bleich 2007; Bleich and Hart 2008). Britain, for example, has passed a series of laws designed to curb racial-ethnic violence, including in 1994 a clause in the penal code that allows for stiffer sentences if a crime is committed against a person as a result of the person’s race, colour, national or ethnic origins, religious beliefs, or some other similar circumstance (Ross 2006). Australia has outlawed at the federal, state, and territory level words and images that incite hatred towards particular groups of people. Relying on discrimination law, Australian legislators have outlawed conduct that constitutes “vilification” or “racial hatred” (Cunneen, Fraser, and Tomsen 1997; Hennessy and Smith 1994). Nearby, New Zealand’s Human Rights Act of 1993 identifies “inciting racial disharmony” as an offense; specifically, it states that an offense is committed when words are publicly said or written “with intent to excite hostility or ill-will against, or bring into contempt or ridicule, any group of persons in New Zealand on the ground of the colour, race, or ethnic origins of that group” (Ross 2006:31). As a final example, Germany has passed laws that forbid “public incitement” and “instigation of racial hatred,” including the distribution of Nazi propaganda or literature liable to corrupt the youth. Unlike the U.S., however, other countries have adopted a fairly limited view of hate crime, focusing primarily on racial, ethnic, and religious violence and still other countries—mostly in the non-western world—have not adopted the term to reference racial, ethnic, religious or any other forms of intergroup conflict. VII. Conclusion Both in the U.S. and abroad, how hate crime policies and law enforcement practices are deployed and the conditions under which they evoke and produce discernable consequences within and outside the criminal justice system is the outgrowth of a lengthy process that begins with the invention of the term, includes the social construction of meaning surrounding the term in various institutional contexts, and

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ends with the invocation of state authority to enhance punishment for those who manifest bigotry as criminal behavior in general and a violation of civil rights more particularly. Seen in these terms, the study of “hate crime” proper is less about specific types of human conduct and is more about a uniquely modern social and legal invention that is shaped by modern politics of victimization and the varying contexts in which hate crime law has been adopted and the myriad of ways in which law enforcement has—and has not—proceed to enforce the law. To quote Cogan (2002:173) hate crime signifies “a crime category worthy of policy attention”—one that represents a profound shift in how criminal justice systems in the U.S. and abroad respond to crime connected to historic and contemporary inequalities. The extant literature on hate crime and the criminal justice system in the U.S. focuses primarily on police and prosecution, demonstrating how hate crime law is being enforced in distinct contexts across the U.S. Specifically, it demonstrates that officers use discretion when defining what does and does not qualify as a hate crime; the social organization of policing as well as the structural composition of the communities in which hate crime law is enforced is consequential for how officers proceed to enforce hate crime law; and there are significant differences in how the policing of hate crime unfolds across types of police personnel, policing units, jurisdictions, and polities. Most importantly, it reveals that as a result of these dynamics, at the level of policing and prosecution, the enforcement of hate crime law often has been delayed and, when it is forthcoming, is quite variable (Franklin 2002). Variability in enforcement aside, the modern hate crime project is alive and well, and producing discernable enforcement effects. It is not, as some early assessments concluded, reducible to symbolic politics in the U.S. Rather, the systematic enforcement of hate crime law is an increasingly institutionalized as part of the U.S. criminal justice system. The result is more robust detection, more systematic data collection, and more uniform enforcement of hate crime law. In this sense, the history and future of hate crime parallels the trajectory set by other criminal categories that get defined by statute, handed to the criminal justice system as an enforcement project, and become institutionalized over time. The policing and prosecution of domestic violence represent an obvious comparison case. Like hate

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crime, decades ago domestic violence law was controversial and appeared ambiguous and unenforceable to many law enforcement officials. Now, however, it is commonplace and an integral part of the fabric of criminal justice in the U.S. Looking into the future, the case of hate crime and the criminal justice in the U.S. will, no doubt, be told as a story of increasingly institutionalization. Looking beyond the U.S., it is easy to anticipate that it will be increasingly institutionalized as part of other criminal justice systems, too.

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Bleich, Erik and Ryan K. Hart. 2008. “Quantifying hate: The evolution of German approaches to measuring ‘hate crime.’ German Politics 17:63-80. Boyd, Elizabeth, Richard Berk, and Karl Hamner. 1996. “Motivated by hatred or prejudice: categorization of hate-motivated crimes in two police divisions.” Law & Society Review 30:819850. Chorba, Christopher. 2001. “The danger of federalizing hate crimes: Congressional misconceptions and the unintended consequences of the Hate Crimes Statistics Act.” Virginia Law Review 87:319379. Cogan, Jeanine C. 2002. “Hate crime as crime category worthy of policy attention.” American Behavioral Scientist 46:173-185. Cunneen, Chris, David Fraser and Stephen Tomsen. eds. 1997. Faces of Hate: Hate Crime in Australia. Leichardt, NSW: Federation Press. Earl, Jennifer S. and Sarah A. Soule. 2001.“The differential protection of minority groups: The inclusion of sexual orientation, gender, and disability in state hate crime law.” Research in Political Sociology: The Politics of Social Inequality 9:35-58. Fernandez, Joseph. 1991. "Bringing hate crimes into focus: The Hate Crimes Statistics Act of 1990, Pub. L. No 101-275." Harvard Civil Rights-Civil Liberties Law Review 26:261-292. Finn, Peter. 1988. “Bias crime: Difficult to define, difficult to prosecute.” Criminal Justice 18-23, 47-48. Franklin, Karen. 2002. “Good intentions: The enforcement of hate crime penalty enhancement statutes.” American Behavioral Scientist 46:154-172. Gellman, Susan B. and Frederick Lawrence. 2004. “Agreeing to agree: A proponent and opponent of hate crime laws reach common ground.” Harvard Journal on Legislation 41:420-448. Goldberger, David. 2004. “The inherent unfairness of hate crime statutes.” Journal on Legislation 41:449-464. Gould, Jon B. 2005. Speak No Evil: The Triumph of Hate Speech Regulation. Chicago: University of Chicago Press.

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Grattet, Ryken and Valerie Jenness. 2005. “The reconstitution of law in local settings: Agency, discretion, ambiguity, and a surplus of law in the policing of hate crime.” Law & Society Review 39:893-942. Grattet, Ryken and Valerie Jenness. 2008. “Transforming symbolic law into organizational action: Hate crime policy and law enforcement practice.” Social Forces (In Press). Grattet, Ryken, Valerie Jenness, and Theodore Curry. 1998. "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 63:286-307. Green, Donald P., Lauren H. McFalls, and Jennifer K. Smith. 2001. “Hate crime: An emergent research agenda.” Annual Review of Sociology 27:479-504. Haider-Markel, Donald P. 1998. “The politics of social regulatory policy: State and federal hate crime policy and implementation effort.” Political Research Quarterly 51:69-88. Haider-Markel, Donald P. and Kenneth J. Meier. 1996. “The politics of gay and lesbian rights: Expanding the scope of the conflict.” Journal of Politics 58:332-49. Hennessy, Nancy and Paula Smith. 1994. “Have we got it right? NSW racial vilification laws five years on.” Australian Journal of Human Rights 1:249-264. Jacobs, James and Kimberly Potter. 1998. Hate Crimes: Criminal Law & Identity Politics. New York: Oxford University Press. Jenness, Valerie. 1995a. “Hate crimes in the United States: The transformation of injured persons into victims and the extension of victim status to multiple constituencies.” Pp. 213-237 in Images and Issues: Typifying Contemporary Social Problems, edited by Joel Best. New York: Aldine de Gruyter. Jenness, Valerie. 1995b. “Social movement growth, domain expansion, and framing processes: The gay/lesbian movement and violence against gays and lesbians as a social problem.” Social Problems 42:145-170. Jenness, Valerie. 1999. “Managing differences and making legislation: Social movements and the

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racialization, sexualization, and gendering of federal hate crime law in the U.S., 1985-1998.” Social Problems 46:548-571. Jenness, Valerie. 2007. “The emergence, content, and institutionalization of hate crime law: How a Diverse Policy Community Produced a Modern Legal Fact.” Annual Review of Law and Social Science 3:141-160. Jenness, Valerie and Kendal Broad. 1997. Hate Crimes: New Social Movements and the Politics of Violence. Hawthorne, NY: Aldine de Gruyter. Jenness, Valerie and Ryken Grattet. 1996. “The criminalization of hate: A comparison of structural and policy influences on the passage of ‘bias-crime’ legislation in the United States.” Sociological Perspectives 39:129-154. Jenness, Valerie and Ryken Grattet. 2004. Making Hate a Crime: From Social Movement to Law Enforcement. New York: Russell Sage Publications. Jenness, Valerie and Ryken Grattet. 2005. “The law-in-between: The effects of organizational perviousness on the policing of hate crime.” Social Problems 52:337-359. Jones, Charles H. 1992. “Proscribing hate: Distinctions between criminal harm and protected expression.” William Mitchell Law Review 18:935-959. King, Ryan. 2006. “Dormancy and implementation in criminal law: The case of hate crime prosecution.” Paper presented at the annual meeting of the American Society of Criminology in Toronto, Canada. King, Ryan, Steven Messner, and Robert D. Ballar. 2006. “Resisting hate crime law and the legacy of lynching.” Presented at the annual meeting of the Southern Sociological Society in New Orleans, Louisiana. King, Ryan D. 2007. “The context of minority group threat: Race, institutions, and complying with hate crime law.” Law & Society Review 41:189-224. Lawrence, Frederick. M. 1993. “Resolving the hate crimes/hate speech paradox: Punishing bias crimes

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and protecting racist speech.” Notre Dame Law School 68:673-721. Lawrence, Frederick. M. 1999. Punishing Hate: Bias Crimes Under American Law. Cambridge, Massachusetts: Harvard University Press. Lawrence, Frederick M. 2006. “The hate crime project and its limitations: Evaluating the societal gains and risk in bias crime law enforcement.” The George Washington University Law School. Public and legal theory working paper No. 216/Legal studies research paper No. 216. Lee, Virginia and Joseph M. Fernandez. 1990. “Legislative responses to hate-motivated violence: The Massachusetts experience and beyond.” Harvard Civil Rights—Civil Liberties Law Review 25:287-340. Maroney, Terry A. 1998. “The struggle against hate crime: Movement at a crossroads.” New York University Law Review 73:564-620. Martin, Susan. 1995. “A cross-burning is not just an arson: Police social construction of hate in Baltimore Country.” Criminology 33:303-326. Martin, Susan. 1996. “Investigating hate crimes: Case characteristics and law enforcement responses.” Justice Quarterly 13:455-80. McPhail, Beverly and Valerie Jenness. 2006. “To charge or not to charge—that is the question: The pursuit of strategic advantage in prosecutorial decision-making surrounding hate crime.” Journal of Hate Studies 4:89-119. Nolan, James J. and Yoshio Akiyama. 1999. “An analysis of factors that affect law enforcement participation in hate crime reporting.” Journal of Contemporary Criminal Justice 15:111-127. Nolan, James. J. and Yoshio Akiyama. 2002. “Assessing the climate for hate crime reporting in law enforcement organizations: A force-field Analysis.” The Justice Professional 15:87-103. Nolan, James, Yoshio Akiyama, and Samuel Berhanu. 2002. “The Hate Crimes Statistics Act of 1990: Developing a method for measuring the occurrence of hate violence.” American Behavioral Scientist 46:136-153.

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Perry, Barbara (ed.). 2003. Hate and Bias Crime: A Reader. New York: Routledge. Phillips, Nickie D. 2006. Prosecution of Bias-Motivated Crimes in New Jersey County,2001-2004. Ph.D. Dissertation. City University of New York. Phillips, Scott and Ryken Grattet. 2000. “Judicial rhetoric, meaning-making, and the institutionalization of hate crime law.” Law & Society Review 34:567-606. Ross, Jennifer Marie. 2006. Bias Crime Investigation: Does a Label Make a Difference. Master’sThesis. Victoria University of Wellington. Rubenstein, William. 2004. “The real story of the U.S. hate crime statistics: An empirical Analysis.” Tulane Law Review 78:1213-1246. Savelsberg, Joachim and Ryan King. 2005. “Institutionalizing collective memories of hate: Law and law enforcement in Germany and the United States.” American Journal of Sociology111:579-616. Soule, Sarah A. and Jennifer S. Earl. 2001. “The enactment of state level hate crime law in the United States: Intrastate and interstate factors.” Sociological Perspectives 44:281-305. Uhrich, Craig L. 1999. “Hate crime legislation: A policy analysis.” Houston Law Review 36:1467-1529. U.S. Department of Justice. 1992. “Hate crimes statistics: A resource book.” Federal Bureau of Investigation. Washignton, D.C. U.S. Department of Justice. 1995. “National bias crime training for law enforcement and victim assistance professionals.” Office of Justice Programs, Office for Victims of Crime. Washington, D.C. U.S. Department of Justice. 1997. “Stopping hate crime: A case history form the Sacramento police department.” Office of Justice Programs, Bureau of Justice Statistics. Washington, D.C. U.S. Department of Justice. 2000. “Addressing hate crimes: Six initiatives that are enhancing the efforts of criminal justice practitioners.” Office of Justice Programs, Bureau of Justice Assistance. Washington, D.C. U.S. Department of Justice. 2001. “News Conference with USA John Brownlee: Indictment of Darrell David Rice. DOJ Conference Center, April 10. Washington, D.C.

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U.S. Department of Justice. 2005. “Hate crime reported by victims and police.” Office of Justice Programs, Bureau of Justice Statistics. Washington, D.C. Walker, Samuel and Charles M. Katz. 1995. “Less then meets the eye: police department bias-crime units.” American Journal of Police 14:29-48. Wexler, Chuck and Gary T. Marx. 1986. “When law and order works: Boston’s innovative approach to the problem of racial violence.” Crime and Delinquency 32:205-223. Wilson, Mindy S. and R. Barry Ruback. 2003. “Hate crime in Pennsylvania, 1984-99: Case characteristics and police responses.” Justice Quarterly 20:373-396.

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Main Points: !

What Lawrence (2006) calls “The Hate Crime Project” marks an important moment in the history of crime control efforts, the development of criminal and civil law, the allocation of civil rights, and the expectations for law enforcement to “do something” about bias, prejudice, and hate-motivated conduct.

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Early assessments of the origins and functioning of hate crime law deemed it a modern example of symbolic politics with legislators ceding the policymaking process to interest groups.

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The term hate crime emerged in the U.S. in second half of the twentieth century and initially took form in the 1980s as the result of an anti-hate crime movement, which is a product of the black civil rights movement, the modern women’s movement, the gay and lesbian movement, the disabilities rights movement, and the crime victims’ movement.

!

As of 2008, in the U.S. the federal government has adopted multiple pieces of legislation that are routinely recognized as hate crime law and almost every state in the U.S. had adopted a statute recognized as a hate crime law.

!

Studies of the policing of hate crime reveal officers use discretion when defining what does and does not qualify as a hate crime; the social organization of policing as well as the structural composition of the communities in which hate crime law is enforced is consequential for how officers proceed to enforce hate crime law; and there are significant differences in how the policing of hate crime unfolds across types of police personnel, policing units, jurisdictions, and polities.

!

The implementation of the Hate Crime Statistics Ac has resulted in the production of a national inventory of officially reported incidents, offenses, and victims of hate crime in the U.S.

!

Information on the empirical parameters of hate crime prosecution at the federal and state level is limited to official data from the U.S. Department of Justice (DOJ), State Attorneys General, and the National Prosecutors Survey conducted by the Bureau of Justice Statistics; unfortunately, to date there are not yet any published studies of the degree to which hate crime is being prosecuted in the

31

U.S. and the factors that predict prosecutors’ decisions to pursue hate crime charges. !

The federal government and state governments increasingly have encouraged officials charged with crime control to prosecute of hate crime by producing and disseminating resources in the form of periodicals and by providing grants to support the prosecution of hate crime.

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Data from the National Prosecutors Survey suggests that prosecutors in the U.S. are successful prosecuting hate crime, albeit in small numbers compared to other types of crime.

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Data from California suggest that when prosecutors file cases as hate crime cases they more often than not successfully secure hate crime convictions.

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Moving outside the U.S., “hate crime”—as a concept and set of criminal justice policies and practices—has diffused across international borders, especially in predominantly English speaking cultures.

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Table 1. Variables That Affect Whether Agencies Report Hate Crimes Agency Encouragers Ability to assess intergroup tensions in community Desire to give support to communities Belief that hate crime reporting will improve police/community relations Belief that police help set level of acceptable behavior in the community Understanding that community wants police to report hate violence Need to know extent of problem as first step to developing solutions Lets community know that department takes hate crime seriously A belief that victims will get help Will help diffuse racial tensions within the police department The right thing to do politically

Agency Discouragers Not deemed important by department Perception on part of police that no problem exists Insufficient support staff to process, record, and submit hate crime data Perceived as not being real police work

A belief that reporting hate crimes will make things worse for victim A belief that reporting hate crimes will make things worse for communities Perception that some minority groups complain unnecessarily Not a priority of local government A belief that identifying a crime as a hate crime will have no effect on the outcome A belief that it is wrong to make these types of crime special The right thing to do morally A belief that hate crime reporting will result in negative publicity for the community Will help maintain department’s good relationship with A belief that hate crime reporting supports the political diverse groups agendas of gay and minority groups (which is seen as a negative thing) Consistent with values of department It creates too much additional work A belief that identifying problem will keep others safe Hate crimes are not as serious as other crimes (i.e., a lower priority) Citizens appreciate the hate crime reporting efforts of the Agency does not have the adequate technological police resources Source: Nolan, James J. and Yoshio Akiyama. 1999. “An Analysis of Factors that Affect Law Enforcement Participation in Hate Crime Reporting.” Journal of Contemporary Criminal Justice 15:111-127.

Table 2. Variables That Affect Whether Police Officers Record Hate Crime Individual Encouragers Departmental policy mandates hate crime reporting Belief that early identification of problem is key to effective solution Belief that it is an important part of the job Belief that it will help prevent problems Belief that reporting hate crimes will prevent personal (officer) liability Belief that hate crimes are morally wrong Encouraged to report by department officials Encouraged and supported by supervisors and colleagues A clear, understood, and accepted departmental policy

Individual Discouragers Belief that it is not viewed as important by department officials Too much additional work Sometimes runs counter to officer’s personal beliefs Belief that hate crimes are not serious Belief that hate crimes should not be treated as special Little concern for some minority groups (e.g., homosexuals and others) Not the job of the police (more like social work) Not recognized or rewarded for reporting hate crimes

Informally encouraged to adjust complaints (no reports) because of the large number of calls for service It benefits victims and communities Lack of common definition of hate crime Internal checks to make sure officers do not misidentify Incident will be blown out of proportion-unnecessarily hate crime become high profile Recognized as good for investigating and recording hate Officers already too busy. Not enough police officers to crime investigate properly Desire to be considered a good police officer Personally opposed to supporting gay and minority political agendas It is encouraged and rewarded by the department Lack of training: How to identify and respond to hate crimes Personal desire to comply with departmental policy Victims do not want to assist in prosecution Source: Nolan, James J. and Yoshio Akiyama. 1999. “An Analysis of Factors That Affect Law Enforcement Participation in Hate Crime Reporting.” Journal of Contemporary Criminal Justice 15:111-127.

Table 3. Law Enforcement Participation in National Hate Crime Data Collection

Year 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006

States and District of Columbia 42 47 44 46 50 49 47 49 49 50 50 50 50 50 51 1

Number of Law Enforcement Agencies 6,181 6,865 7,356 9,584 11,354 11,211 10,730 12,122 11,690 11,987 12,073 11,909 12,711 12,417 12,620

% Population Covered by Participating Agencies 51 58 58 75 84 83 80 85 84 85 86 83 87 83 85

Number of Hate Crimes Reported 7,466 7,587 5,932 7,947 8,759 8,049 7,755 7,876 8,063 9,730 7,462 7,489 7,649 7,163 7,722

% of Zero Reporting Agencies 82 81 84 84 84 85 83 85 84 82 85 84 84 84 83

Source: U.S. Department of Justice, Federal Bureau of Investigation. Criminal Justice Information Services Division. U.S. Government, Washington D.C.

1

This number includes 49 states, the District of Columbia, and Outlying Areas (Guam).

Table 4. Bias-Motivated Incidents Reported by the Uniform Crime Reports, 1991-2006 Type of BiasMotivation

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

4,025 1,342 2,296

4,732 1,471 2,815

3,545 1,010 2,174

4,831 1,226 2,988

5,396 1,106 3,674

4,710 993 3,120

4,321 792 2,901

4,295 781 2,958

4,337 875 2,884

4,367 891 2,899

3,642 719 2,486

3,844 830 2,548

4,042 829 2,731

3,919 828 2,630

4,000 890 2,640

26

27

22

41

51

36

52

47

57

80

62

76

83

79

60

217

258

211

355

355

347

293

298

281

280

217

231

217

199

181

144

161

128

221

210

214

283

211

240

217

158

159

182

183

229

669 369

697 472

638 337

814 516

940 564

836 491

754 482

829 466

911 557

2,098 597

1,102 480

1,026 426

972 475

944 522

984 576

300

225

301

298

376

345

272

363

354

1,501

622

600

497

422

408

1,162 1,017 18 28 15

1,298 1,143 32 30 13

1,062 915 17 29 17

1,277 1,058 31 36 29

1,401 1,109 35 75 27

1,385 1,087 31 53 28

1,390 1,081 61 59 21

1,411 1,109 36 48 32

1,472 1,109 56 59 28

1,828 1,043 38 35 481

1,426 931 53 55 155

1,343 927 76 49 149

1,374 954 57 38 156

1,227 848 58 57 128

1,462 967 76 59 156

69

63

67

102

129

159

125

151

172

181

198

109

128

93

124

14

14

14

20

24

24

41

31

44

45

31

24

35

39

73

1

3

3

2

3

2

4

4

5

3

9

6

4

7

767

860

685

1,019

1,016

1,102

1,260

1,317

1,299

1,393

1,244

1,239

1,197

1,017

1,195

557

615

501

735

757

760

850

915

896

980

825

783

738

621

747

93

121

100

146

150

188

223

187

179

205

172

187

164

155

163

100

94

63

103

84

133

158

178

182

173

222

247

245

195

238

14 3

28 2

14 7

17 18

15 10

12 9

12 17

14 23

22 20

18 17

10 15

14 8

33 17

21 25

26 21

12 9 3

25 13 12

19 10 9

36 20 16

35 12 23

45 20 25

33 24 9

57 23 34

53 21 32

79 17 62

4

5

5

8

9

3

4

7

3

2

TOTAL , , , , , , , , , , , 6,623 7,587 5,932 7,947 8,759 8,049 7,755 7,876 8,063 9,730 7,462 *Includes outlying areas (Guam). Source : U.S. Department of Justice, Federal Bureau of Investigation. Criminal Justice Information Services Division. U.S. Government, Washington D.C.

, 7,489

, 7,649

, 7,163

, 7,722

Race Anti-White Anti-Black Anti-American Indian/Alaskan Native AntiAsian/Pacific Islander Anti-MultiRacial Group

1991

Ethnicity/Nation al Origin Anti-Hispanic Anti-Other Ethnicity/ National Religion Anti-Jewish Anti-Catholic Anti-Catholic Anti-Protestant Anti-Islamic Anti-Other Religious Group Anti-MultiReligious Group Anti-Atheism/ Agnosticism/etc. Sexual Orientation Anti-Male Homosexual Anti-Female Homosexual AntiHomosexual AntiHeterosexual Anti-Bisexual Disability Anti-Physical Anti-Mental

----

----

----

Multiple Bias

--

--

2

----

---6

6

Table 5. Characteristics of Victims of Hate Crime

Characteristics of Victims

Annual Rate of Hate Related Victimizations per 1,000 persons All Violent

Gender Male Female

1.0 0.8

0.9 0.6

Race White Black Othera

0.9 0.7 1.4

0.8 0.5 1.1

Hispanic Origin Hispanic Non-Hispanic

0.9 0.9

0.8 0.8

Age 17 or younger 18-20 21-29 30-39 40-49 50 or older

1.6 1.6 1.1 0.9 1.0 0.5

1.6 1.6 1.0 0.6 0.7 0.3

Marital Status Never married Married Separated/divorced Widowed

1.5 0.5 2.6 0.1

1.4 0.4 1.2 0.2*

1.1

1.0

0.9 0.8

0.6 0.7

1.3 1.0 0.7 0.6

1.0 0.9 0.7 0.5

Educational Attainment Less than high school diploma High school diploma More than high school diploma Household Income Less than $25,000 $25,000-$49,000 $50,000 or more Not reported

Location Urban 1.3 1.0 Suburban 0.8 0.7 Rural 0.7 0.6 Note: For property crimes, characteristics are those of the person reporting the incident to the NCVS. a Includes American Indians and Asians. Persons of more than one race are excluded. * Estimate is based on 10 or fewer sample cases. Source: BJS, National Crime Victimization Survey, July 2000 through December 2003.

Source: Harlow, C.W. 2005. Hate Crime Reported by Victims and Police. Washington, D.C.: Bureau of Justice Statistics, U.S. Department of Justice.

Table 6. California Hate Crime Prosecutions, 1995-2006 Processing Activity Reported Hate Crimes Hate Crimes Referred for Prosecution Criminal Case Filings Hate Crime Case Filings Non-Bias Motivated Crime Filings Hate Crime Case Filings with a Disposition Not Convicted Hate Crime Convictions Other Convictions Total Convictions

1995

1996

1997

1998

1999

2000

Year 2001

2002

2003

2004

2005

2006

1,754

2,054

1,831

1,750

1,962

1,957

2,261

1,659

1,491

1,409

1,397

1,306

366

____

____

1039

____

____

539

462

407

448

363

187

182

313

244

372

360

360

425

374

371

396

334

____

142

____

____

____

____

314

351

304

277

330

272

____

40

____

____

____

____

46

74

70

278

66

62

____

____

____

____

270

303

240

301

223

94

274

249

____

____

____

____

41

28

33

48

26

36

36

____

87

223

131

174

213

136

164

128

139

197

140

____

75

57

43

55

62

71

89

69

103

101

78

107

162

280

174

229

275

207

253

197

242

298

218

____

31

Source: California Department of Justice. 2007. Hate Crime in California, 1995-2006. Division of California Justice Information Services. Bureau of Criminal Information and Analysis, Criminal Justice Statistics Center. Sacramento, CA.

Figure 1. Distribution of Law Enforcement Agency Response to Five Major Policing Issues, 2000

Bias Crime

Victim Assistance

Special Policies Assigned Personnel Special Unit

Domestic Violence

Gangs

Community Policing

0

5

10

15

20

25

30

35

40

45

Percentage of Agencies

Source: Law Enforcement Management Administrative Statistics. 2000. U.S. Department of Justice. Bureau of Justice Statistics. Washington, D.C.

Figure 2. Percent of Prosecutors' Offices in State Court Systems That Have Prosecuted Select Crimes, 2001 Computer Crimes Excessive Police Force Illegal Firearms Telemarking Fraud Bank Fraud Health Fraud Child Abuse Stalking Elder Abuse Domestic Violence Hate Crime

0

20

40

60

80

100

Source: National Prosecutors Survey. United States Department of Justice. Bureau of Justice Statistics. U.S. Government. Washington, D.C.