Hate Crimes: Criminal Law & Identity Politics (Studies in Crime and Public Policy)

Beginning in the mid-1980s, Americans were told that "hate crime" was on the rise throughout the nation. Numerous advocacy groups lobbied for--and achieved--the passage of laws specifically engineered to document the rise in hate crime and dole out extra punishment for perpetrators who chose their victims on the basis of race, ethnic group, religion, or sexual orientation. But were these legislative efforts necessary?

James B. Jacobs and Kimberly Potter suggest not. They argue that the definitions of "hate crime" are often too vague to be meaningful. They cite the case of a black man who robbed white people simply because he believed they had more money than blacks and who did not abuse whites with racial invective as he committed his crimes, as an example. Jacobs and Potter point out that "whether or not the authors of hate crime legislation meant to cover [such] offenders, these are the individuals who dominate the statistics." They then analyze the statistical data and find no evidence supporting the belief that hate-instigated violence is on the rise; they also find that the majority of reported hate crimes are low-level offenses such as vandalism and "intimidation." Brutal assaults and murders, while they may provide grist for media sensationalists, are rare.

Jacobs and Potter also argue convincingly that the development of hate-crime legislation arises from the identity politics movements which have gained strength since the passage of the Civil Rights Act. Essentially, according to their line of reasoning, claims of the existence of a hate-crime epidemic and laws punishing hate crimes serve two purposes. One, they allow minorities to express outrage at the way they are being treated by society. Two, they allow nonminorities to act as if they understand minorities' pain and reaffirm the uncontroversial belief that prejudice and bigotry are wrong. But crime, the authors suggest, is not simply "a subcategory of the intergroup struggles between races, ethnic groups, religious groups, genders, and people of different sexual orientations." Hate-crime laws may even, they warn, exacerbate perceived differences rather than create harmony.

Hate--or, more accurate, bigotry--is wrong. Crime is also wrong. But Jacobs and Potter make a convincing argument against considering crime tinged with bigotry worse than unadulterated crime. "The enforcement of generic criminal law," they conclude, "is adequate to vindicate the interests of 'hate crime' victims as it is of other crime victims."