Hate Crime Laws

November 12, 2018
 

Jennifer Pahre from the University of Illinois College of Law

University of Illinois College of Law

Sadly, hate crimes are once again in the news.

Hate crimes are unlike other crimes in the American legal system.  Simply put, a hate crime is a crime that is motivated by bias or prejudice. The perpetrator of a hate crime targets victims because of their perceived membership in a particular race, nationality, or social group.  Hate crimes can be committed against people based upon their ethnicity, language, gender, sexual orientation, gender identity, or religion.  Such crimes range from physical assault to homicide, and from unlawful verbal abuse to continuing harassment.  They can also involve destruction of property, trespass, and offensive graffiti. 

Special state and federal laws require enhanced penalties for criminals who commit hate crimes. The constitutionality of these enhanced penalties was challenged in the 1993 Supreme Court case, Wisconsin v. Mitchell.  That case arose from an incident that occurred in Kenosha, Wisconsin.  A group of young African-Americans, including Todd Mitchell, gathered in an apartment complex and watched the movie “Mississippi Burning.”  The group became agitated and moved outside, talking about violence.  When a young white boy walked by, the group beat him severely.

A jury convicted Mr. Mitchell of aggravated battery.  Normally, this offense carries a maximum sentence of two years imprisonment.  But the jury found that the boy had been targeted because of his race, which increased the maximum sentence under the Wisconsin law that enhances penalties if a criminal defendant “intentionally selects the person against whom the crime… is committed… because of race…” 

Mr. Mitchell challenged the constitutionality of the law, arguing that it violated the First Amendment because it punished the offenders’ thoughts, which were racially-prejudiced.  Laws that punish thoughts are highly problematic. 

But the Supreme Court found that bias-inspired crimes, with targeted victims, cause  greater individual and societal damage than regular crimes.  They inflict distinct emotional harm on their victims, they incite community unrest, and they are more likely to provoke unlawful retaliation.  So, the Supreme Court found that the Wisconsin statute was constitutional.  A criminal defendant who commits a hate crime may legally face a stiffer punishment because the crime is more severe.  

Two years later, in 1995, the United States Sentencing Commission began to implement enhanced penalties in federal hate crime cases involving race, color, religion, national origin, ethnicity, or gender.  And in 1996, following a series of attacks on churches, Congress passed the Church Arson Prevention Act, which carried enhanced penalties for damaging church property because of a congregation’s race, color or ethnic characteristics.

Finally, in 2009, President Obama signed the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act.  Matthew Shepard had been targeted for torture and murder due to his sexual orientation, and James Byrd had been brutally killed by white supremacists because he was African-American.  The new Act named in their honor expanded the federal law to include hate crimes motivated by gender, sexual orientation, gender identity, or disability.

Supreme Court Justice Thurgood Marshall once said, “Democracy cannot flourish amid fear.  Liberty cannot bloom amid hate.  Justice cannot take root amid rage…”  Of course, mere legislation cannot abolish fear, hate or rage.  But hate crime laws can demand a higher penalty from those whose biases target others for harm, damaging the fabric of our society.