Hate crimes and the Bill of Rights

Description: Criminal acts motivated by hatred of and directed against members of a particular group

Relevant Amendment: First

Significance: Hate crimes injure the victim and society in ways other crimes do notit has been argued that due to their nature, they generate more injury, distress, and suffering than other crimes.

In 1984, Alan Berga Jewish talk show host on a Denver radio stationwas fatally shot on his way home by several members of a neo-Nazi hate group. In 1986, three White teenagers attacked three Black men in Howard Beach, New Yorkfor no other reason than the fact that they were Black. Both these actions were hate crimes—crimes motivated by the hatred of a certain group, such as a certain race, ethnic group, religion, gender, or sexual orientation. Since the mid-1980s, hate crimes have been on the rise.

Hate crimes are typically excessively brutal, and quite often carried out in a random fashion against strangersas with the incidents involving the Howard Beach Black men. Authors Jack Levin and Jack McDevitt have given several explanations as to why these crimes occurthe perpetrator’s negative and stereotypic view of other people, the possibility that bigotry is becoming more widely tolerated, the resentment that one group feels toward another because it has been left out of the mainstream of society, a perpetrator’s desire for the thrill of the action, a perpetrator’s reaction to a perceived or imagined injury such as the loss of a job promotion or a benefit, and finally, a perpetrator’s wish to rid the world of perceived evil.

Federal Laws Against Hate Crimes

There are a number of hate laws that victims of hate crimes can use against perpetrators. In the last years of the twentieth century, most states enacted laws to deal specifically with these types of crimes. Several statutes also address these crimes on a federal level. The Hate Crime Statistics Act (1990) required the federal government to collect data on hate crimes, and the Federal Bureau of Investigation (FBI) began publishing an annual report on such crimes in 1992.

There are federal laws prohibiting conspiracies against the rights of citizens, prohibiting a deprivation of rights under color of law, and prohibiting damage to religious property and obstruction of persons in the free exercise of their religious beliefs. In addition, there are federal statutes that prohibit forcible interference with civil rights and willful interference with civil rights under the fair housing laws. However, into the twenty-first century, these federal statutes were rarely applied to hate crimes for several reasons. First, if a president does not emphasize civil rights, the attorney general in that administration will not be likely to prosecute these crimes. Second, since most of these statutes required that the victim be engaged in an activity involving a federally protected right, such as buying a house or eating in a restaurant, they did not apply to many victims. Third, the remedies under the federal statutes were limited. Fourth, only certain groups, such as racial and religious groups, were protected under these statutes until the 2009 passage of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, which extended hate crime law to cover actions motivated by sexual orientation, gender, gender identity, and disability. That act also removed the requirement that the victim be exercising a federally protected right. Due to these limitations, the most active prosecution of hate crimes before 2009 was at the state level.

State Laws Prohibiting Expressive Conduct

On June 21, 1990, two young White men burned a cross on the property of a Black family in St. Paul, Minnesota. One of the mendesignated only by his initialsR.A.V.because he was only seventeen at the time. R.A.V. was charged in accordance with a new city "bias-motivated" disorderly conduct ordinance which read,

"Whoever places on public or private property, a symbol, appellation, characterization, or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion, or gender commits disorderly conduct and shall be guilty of a misdemeanor."

R.A.V. could have been charged with simple trespass, disorderly conduct, breach of the peace, or even a more severe crime such as terroristic threats. Instead, in what was to become a test case of the statute and others similar to it, the prosecutor decided to invoke this law, which punished the expression of a viewpoint.

R.A.V.’s attorneyEdward J. Clearydecided to challenge the constitutionality of the law under the First Amendment to the US Constitution. A Minnesota district court agreed that the ordinance was unconstitutional. The prosecutor decided to appeal the decision to the Minnesota Supreme Court. This court overturned the lower court ruling. R.A.V. appealed to the Supreme Court of the United States for a review of the case. On June 22, 1992, the Supreme Court issued a unanimous opinion in R.A.V. v. City of St. Paul declaring the ordinance was unconstitutional. Five of the justices held the ordinance was unconstitutional because it prohibited the expression of subject matter protected by the First Amendment.

Four of the justices said the ordinance was overbroad in that it included in its proscriptions expression which was protected by the First Amendment. The entire Supreme Court thought the city had other means by which to prosecute R.A.V. Thus, the court concluded that, offensive as the action in which R.A.V. had engaged was, the action was protected under the Constitution to the extent that it was expressive conduct.

State Hate Laws Prohibiting Conduct

In 1991, a nineteen-year-old Black man, Todd Mitchell, and his friends came out of a theater showing the film Mississippi Burning so enraged that, upon seeing a fourteen-year-old White youth (Gregory Riddick) on the street, they assaulted him. Coming out of the film, Mitchell said to others in his group, "Do you all feel hyped up to move on some White people?" Then, when Mitchell saw Riddick walking by, he added, "There goes a White boy—go get him." The group kicked and beat the boy for five minutes.

Riddick remained in a coma for four days before he returned to consciousness with brain damage. Mitchell was convicted of aggravated battery, normally punishable by a maximum sentence of two years. Because the jury found that the crime was motivated by racial animus, however, the sentence was increased to seven years in accordance with a state statute which read, "If a person commits the crime of aggravated battery and intentionally selects the victim ‘in whole or in part because of the actor’s belief or perception regarding the race, religion, color, disability, sexual orientation or ancestry of that person,’ the maximum sentence may be increased by not more than five years."

Within hours after the Supreme Court announced its opinion in R.A.V., the Wisconsin Supreme Court struck down this law as unconstitutional. The state appealed the decision to the Supreme Court of the United States, and on June 11, 1993—in a unanimous opinion—the Supreme Court reversed the decision and held that "enhancement" laws such as this which punish hate-motivated conduct are constitutional. The Supreme Court, in Wisconsin v. Mitchell, distinguished this case from R.A.V. by stating that R.A.V. dealt with expression and this case with conduct. Thus, hate speech is considered different than hate crimes.

The Supreme Court went on to state that with criminal acts, the more purposeful the conduct, the more severe is the punishment. Thus, when a defendant’s beliefs add to a crime and motivate the defendant into action, the motive behind the conduct is relevant to the sentencing and punishment. Second, the court stated that these enhancement laws are similar in aim to civil antidiscrimination laws and that they are justified because the conduct involved inflicts greater individual and societal harm than do other crimes.

Some commentators viewed Mitchell with alarm and claimed these enhancement statutes come dangerously close to punishing a person’s thoughts and thereby infringing upon First Amendment rights. He would question why those who attack a person of another race should, because they hate that race and express it, be subject to stricter laws than those who attack in silence. By upholding the enhancement laws, Cleary suggested, the Supreme Court blurred the lines between speech and action. Others believed that, because of the Supreme Court’s emphasis on the analogy between these enhancement-type laws and antidiscrimination laws, these laws are constitutional. In sum, if a statute infringes upon expression, as in R.A.V., it will be held unconstitutional—if a statute prohibits conduct, it will be upheld.

By 1991, thirty-five states had adopted some form of law to deter hate crimes. These laws were not without practical problems. First, in many instances—as was the case in R.A.V.—prosecutors may wait to find the perfect case to fit the statute. The usefulness of the statute is thereby limited. Second, if there is a successful prosecution under the statute, there may be problems in carrying out a severe punishment. Most hate crime offenders are under twenty-one and do not have prior criminal records. Jails are overcrowded, and it seldom makes sense to jail the entire group involved in the crime. If only leaders are jailed, there is ample evidence that prison will make them worse.

Hate Crime Case on Appeal

IIn 2020, the murder of an African American man named Ahmauh Arberty at the hands of three White Georgia men garnered national attention. Arberty had been jogging through a neighborhood when spied by Gregory McMichael, his son Travis, and William "Roddie" Bryan. The three proceeded to chase Arberty in vehicles before they first cornered him, and then killed him with a shotgun. Local police did not act on the murder for two months until a video of the murder appeared online. In 2021, the trio was found guilty of murder in a Georgia state court and then of hate crimes by a federal court in 2022.

As the issue of hate was at the center of the federal case, prosecutors made wide use of social media previously posted by the three men to demonstrate proof of hateful intent. The case also represented the first hate crime trial in the state of Georgia.

In 2024, defense lawyers for the three men filed for the overturn of their federal convictions. The lawyers contended that previous social media commentary did not influence their motivations for killing Arberty. Rather, after seeing Arbetry appear on a security camera, the trio acted out of an overzealousness to employ vigilante justice. The defense contended the federal government also needed to demonstrate that it was a motivation for personal gain that compelled the three individuals to act. Last, defense lawyers asserted that since Arbetry was not killed on a public street—a requirement for federal jurisdiction—the case fell out of its purview. Following the March 2024 defense motion, the case officially was on appeal.

Bibliography

Alexander, Blayne, et al. "Ahmaud Arbery’s Killers Ask Appeals Court to Overturn Their Hate Crime Convictions." NBC News, 27 Mar. 2024, www.nbcnews.com/news/us-news/ahmaud-arberys-killers-ask-appeals-court-overturn-hate-crime-convictio-rcna145264. Accessed 4 Sept. 2024.

"Bruce, Judith. Hate Crimes. New York, Greenhaven Press, 2009.

Chakraborti, Neil, and Jon Garland. Hate Crime: Impact, Causes, & Responses. SAGE, 2015.

Citron, Danielle Keats. Hate Crimes in Cyberspace. Boston, Harvard University Press, 2016.

Liberman, Michael. "30 Years after Landmark Supreme Court Hate Crime Case, Prevention Must Be Our Focus." Southern Poverty Law Center, 21 Apr. 2023, www.splcenter.org/news/2023/04/21/hate-crime-case-prevention-focus. Accessed 4 Sept. 2024.

Perry, Barbara, et al. Hate Crimes. Westport, Praeger, 2009.

Pezzella, Frank S. Hate Crime Statutes: A Public Policy and Law Enforcement Dilemma. Springer Verlag, 2016.

Schweppe, Jennifer, and Mark Austin Walters. The Globalization of Hate: Internationalizing Hate Crime? Oxford, Oxford University Press, 2016.

Turpin-Petrosino, Carolyn. Understanding Hate Crimes: Acts, Motives, Offenders, Victims, and Justice. Philadelphia, Routledge, 2015.