The dawn of the new millennium marked New York's entry into the realm of legislating against evil thoughts. By enacting the Hate Crimes Act of 2000, (1) the New York State Legislature mandated enhanced penalties for a laundry list of criminal activities, which depend on the defendant's subjective motivation for committing the underlying or "specified offense." (2) In doing so, New York became the forty-fourth state to enact bias or hate crime legislation. (3)
New York's Hate Crimes Act is unnecessary and ill-advised. There is little or no credible evidence that bias-related crime is either prevalent or deserving of specialized treatment. (4) The criminal law that existed prior to the passage of the Hate Crimes Act adequately addressed the anti-social behavior of defendants who commit crimes motivated by bias. Furthermore, the current Hate Crimes Act will not serve as a deterrent to bias-motivated acts. (5) Additionally, this statute might violate the federal and state constitutions, create procedural and evidentiary problems not envisioned by its drafters, and represent little more than political pandering to a panoply of special interest groups.
Part One of this article provides some introductory remarks about hate crime legislation. Both federal and state law will be discussed and some comparisons will be made observing their respective approaches to bias-crime legislation. Part Two presents the New York Hate Crimes Act of 2000. Along with this general overview, the accompanying discourse discusses its design and purpose, questions its purported indispensable nature in the face of evidence demonstrating a lack of bias-crime prevalence, and comments about the New York law being built on a foundation of symbolism rather than substance. Part Three argues that the existing criminal law is more than sufficient to address the various crimes enumerated under the Hate Crimes Act, and thus, bolsters the contention that the Hate Crimes Act is unnecessary. Part Four examines the New York law under both the federal and state constitutions and supplies a constitutional critique. This Part assesses the New York Hate Crimes Act in light of Supreme Court guidance surrounding the concept of restraint on free speech. As will be seen, the New York law might suffer infirmities under its own state constitution that it might not face under its federal counterpart. Part Five furnishes an overview of the various procedural and evidentiary troubles that might result in attempting to prosecute offenders under the Hate Crimes Act, and in so doing, elucidates many arguments that may be offered against the law. Part Six concludes that hate crime laws, as a whole, have flourished due to the politics involved in creating such legislation, and despite overwhelming evidence suggesting that bias-crime laws are unnecessary, this type of legislation continues to flourish--for no legitimate policy reason.
I. BACKGROUND OF HATE CRIME LEGISLATION
Beginning in the mid-1980s, both Congress and many state legislatures enacted hate crime legislation. (6) Typically, if the defendant was motivated by factors such as race, religion, or ethnicity, these statutes either provide increased penalties for existing crimes or create new crimes punishing specific acts of ethnic or racial intimidation. (7)
Federal statutes usually address bias-motivated criminal activity by enhancing penalties pursuant to the federal sentencing guidelines. (8) For example, if the defendant is found beyond a reasonable doubt to have intentionally selected, as his target, any victim or any property because of race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation, a three-step increase in the offense level is mandated. (9)
State statutes may be of either variety--enhancing the penalty for an existing crime if it was found to be motivated by bias or creating a new crime for specific acts of ethnic, racial, or religiously motivated intimidation. …