Should Hate Be a Crime

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ON MAY 29, 1989, a white man, David Wyant, occupied a compsite next to Jerry White, an African-American. White complained to the park authorities that Wyant was playing his music too loudly during "quiet hours." White and his companion later heard three comments directed at them from the Wyants' campsite: 1) "We didn't have this problem until those niggers moved in next to us"; 2) "The black motherfucker over there; I will take this gun and kill him"; 3) "In fact, I will go over and beat his black ass now."

On the basis of these statements, without any accompanying conduct or evidence that there actually was a gun, Wynat was convicted of "ethnic intimidation" and sentenced to eighteen months incarceration.

State v. Wyant is the kind of case that ought to be carefully considered by proponents of hate crime legislation. The imagery that animates the passage of such legislation posits hardcore racists and anti-Semites waging a systematic campaign against blacks and Jews. By contrast, most of the cases that are labeled hate crimes result from impulsive behavior or situational disputes, often involving juveniles. One could easily think of the Wyant case as a fight about noise at a campground that activated the defendant's racial prejudice. Such prejudice is certainly not pretty but, unlike hardcore neo-Nazism, is widespread and often bubbles to the surface in the arguments, altercations, and conficts that punctuate life in a multi-racial and multi-ethnic society. This kind of prejudice certainly needs attention, but not the kind of attention that is provided by elevating an occasional low-level, harassment-type crime into a serious offense.

The problem of motive

Wyant also reveals a more serious flaw in hate crime legislation. Criminal law has long struggled to define the criminal intent (mens rea) that transforms a harm into a crime. Defining criminal motivation is even trickier, because it requires getting to the source of the defendant's intent. For this reason criminal law generally has steered clear of motivation.

Motivation is particularly problematic in hate crime cases because thB presumed motive, "prejudice," defies precise definition. According to the Intelrnational Encyclopedia of the Social Sciences:

Prejudice is not a unitary phenomenon ... [I]t will take varying forms in different individuals. Socially and psychologically, attitudes differ depending upon whether they are the result of deep-seated personality characteristics, sometimes of the pathological nature, of a traumatic experience, or whether they simply represent conformity to an established norm.

Indeed, some people speak of prejudice as being unconscious as well as conscious. Consider the view of Charles Lawrence III, an influential professor of law at Stanford University:

Americans share a common historical and cultural heritage in which racism played and still plays a dominant role. Because of this shared experience, we also inevitably share many ideas, attitudes and beliefs that attach significance to an individual's race and induce negative feelings and opinions about non-whites. To the extent tha[ this cultural belief system has influenced all of us, we are all racists. At the same time, most of us are unaware of our racism.... In other words, a large part of the behavior that produces racial discrimination is influenced by unconscious racial motivation.

If prejudice is this pervasive, subtle, and complex, the criminal justice system will certainly have a hard time sorting out which interracial crimes are motivated by prejudice and which are not. Moreover, recent efforts by law enforcement agencies and courts to define hate crimes more precisely to do inspire confidence. For example, the U.S. Department of Justice Guidelines, …