Since the Supreme Court's recent decision in R. A. V. v. St. Paul,(1) striking down on First Amendment grounds a municipal ordinance making it an offense to "display a symbol which one knows or has reason to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender," Congress, state legislatures, and local governments have been considering what to do next in the war against hate crimes. What is true for the nation is also true for New York State and New York City which, if anything, are more likely than other jurisdictions to define the world in terms of group, especially racial, issues and interests. The R.A.V. decision provides an opportunity to take stock of all recent anti-hate crime initiatives. While this symposium focuses mainly on substantive criminal law and the theory and constitutionality of hate crime legislation, my focus is on the implementation of a police-made hate crime reporting policy in New York City. While few cities will have the resources and manpower to dedicate an entire unit to identifying and investigating hate crimes, a new federal law mandates nationwide hate crime data collection.(2) Moreover, calls to mark hate crimes for special attention are likely to continue no matter what the fate of post-R.A.V. decisions. The question is whether new motivation-specific criminal laws and police initiatives, of whatever type, can significantly remediate such deeply entrenched and sordid problems as racism, anti-semitism, and homophobia.
The New York City Experience
In 1980, in response to a spate of attacks on synagogues, Police Commissioner Robert McGuire ordered a study of what could be done. The report led directly to the establishment of a Bias Crime Unit, consisting of one captain, one sergeant, and ten investigators, that would report directly to the Department's highest ranking uniformed officer. (Later the unit expanded to eighteen persons.) The unit's original mission was "to monitor and investigate acts committed against a person, group, or place because of race, religion or ethnicity." In 1985 the Bias Unit's jurisdiction was extended to include crimes motivated by anti-gay and lesbian prejudice, but it has not yet been extended to crimes motivated by other prejudices and group hatreds--for example, gender, age, union membership or non-membership, mental or physical handicap, wealth, neighborhood, and so on. Undoubtedly, however, if hate crime jurisprudence survives the current constitutional attack, it will expand to cover crimes against members of some or all of these groups as well. Indeed, it is not inconceivable that some day practically all "generic" crimes will also constitute "hate crimes" of one species or another.
While the Bias Unit shares responsibility with the NYPD as a whole for solving bias crimes, it is uniquely responsible for deciding whether particular crimes are bias-related, a job fraught with sensitive, even potentially explosive, social and political ramifications. Once new official categories are created, they are likely to have real-world political effects. New Yorkers and citizens of other cities may come increasingly to assess the state of racial and other inter-group relations in their cities and neighborhoods, and perhaps assess their own sentiments toward members of other groups, according to official pronouncements and statistics about hate crimes.
Classifying a particular crime as bias-motivated or non-bias-motivated is no easy matter. It depends upon a subjective judgment about the motivation of an offender or, as in many cases, the motivations of multiple offenders whose personalities and behaviors are likely to be complex, confused, and sociopathic.
Like many hate crime statistics and substantive crime statutes, the NYPD's definition of bias crime requires only that the offender's biased motivation be in part responsible for the offense.(3) Would it be implausible to say that practically any inter-group crime was in part motivated by bias, especially when multiple offenders were involved? (Is an offense a bias crime if one of several offenders was motivated by wrongful bias?) To make matters even more complex, while the NYPD does not attempt to define "motivation," the term is complicated and, at a minimum, encompasses ideas about unconscious as well as conscious purposes, desires, and goals.(4)
One obstacle to labelling a crime as bias-motivated or not is that no offender(s) has been apprehended or, if there is an offender, that he does not provide a full or reliable account of his motivation. A victim, if there is one, may tell the police what the offender did and said, but is that reliable enough to warrant an inference about motivation? The difficulty of making judgments about motivation is illustrated by an October, 1991 story in the New York Times which reports how the NYPD originally labelled as a bias crime the beating of a black youth in Brooklyn by a street gang called the Kings Highway Boys.(5) However, when the police later discovered that one of the gang members at the center of the attack was himself black, the label was removed.(6) The Times quotes one police officer as saying: "The Kings Highway Boys hate everybody. They're equal opportunity haters."
The complexity and utter subjectivity of the labelling process is revealed by the Police Department's criteria and questions for identifying bias incidents:(7) These criteria are worth examining in detail because they strongly demonstrate the problematic nature of the labelling exercise.
1. The motivation of the perpetrator
2. The absence of any motive
3. The perception of the victim
4. The display of offensive symbols, words, or acts
5. The date and time of occurrence, (corresponding to
a holiday of significance, i.e., Hanukkah, Martin Luther
King Day, Chinese New Year, etc.)
6. A common-sense review of the circumstances surrounding
the incident, (considering the totality of the
A. The group involved in the attack
B. The manner and means of the attack
C. Any similar incidents in the same area or against
the same victim
7. What statements, if any, were made by the perpetrator?
Questions to be asked
1. Is the victim the only member or one of a few members
of the targeted group in the neighborhood?
2. Are the victim and perpetrator from different racial,
religious, ethnic, or sexual orientation groups?
3. Has the victim recently moved to the area?
4. If multiple incidents have occurred in a short time
period, are all the victims of the same group?
5. Has the victim been involved in a recent public
activity that would make him/her a target?
6. What was the modus operandi? Is it similar to other
7. Has the victim been the subject of past incidents of a
8. Has there been recent news coverage of events of a
9. Is there an on-going neighborhood problem that may
have spurred the event?
10. Could the act be related to some neighborhood
conflict involving area juveniles?
11. Was any hate literature distributed by or found in the
possession of the perpetrator?
12. Did the incident occur, in whole or in part, because of
a racial, religious, ethnic, or sexual orientation difference
between the victim and the perpetrator, or did it occur
for other reasons?
13. Are the perpetrators juveniles or adults, and if
juveniles, do they understand the meaning (to the
community at large and to the victim) of the symbols
14. Were the real intentions of the responsible person
motivated in whole or in part by bias against the victim's
race, religion, ethnicity or sexual orientation, or was the
motivation based on other than bias, ex: a childish prank,
unrelated vandalism, etc.?
Note: If after applying the criteria listed and asking the appropriate questions, substantial doubt exists as to whether or not the incident is bias motivated or not, the incident should be classified as bias motivated for investigative and statistical purposes.
Remember: The mere mention of a bias remark does not necessarily make an incident bias motivated, just as the absence of a bias remark does not make an incident nonbias. A common sense approach should be applied and the totality of the circumstances should be reviewed before any decision is made. Any questions should be referred to the Bias Incident Investigating Unit.
Even a brief perusal of all these criteria and questions ought to convince the reader that labelling a crime as bias-related or bias-motivated is fraught with debatable assumptions and subjective judgments. For example: why should the "absence of any [apparent?] motive" support an inference of bias motivation? How much weight ought to be given to the perception of the victim, who might be especially sensitive to aspersions on his identifications and affiliations or might himself have instigated an encounter that touched the raw nerves of bias and prejudice? In some parts of the City isn't there always "an ongoing neighborhood problem" that would suggest the possibility or presumption of a hate crime? And what are we to make of the question: whether (all?) the juveniles in a group situation "understand the meaning of the [biased] symbols used?" In short, the criteria are so loose and broad that practically any inter-group offense could plausibly be labelled a bias crime, especially if the issue is whether it was in part motivated by bias.
In having to pronounce on hundreds of potential bias crimes per week, the Bias Unit has been assigned a politically explosive job. The unit and the police department are constantly criticized by racial, religious, and gay and lesbian group activists for failing to label certain crimes as bias-related. Given the ethnic and interest group politics that characterize our society, especially in New York City, groups see economic, social, and political advantage in dramatizing the extent of their victimization.(8)
The contemporary politics and dynamics of group entitlements and victimization are complex and highly charged. Whether the availability of an official bias crime category mollifies or exacerbates underlying strains is open to question. While the confirmation of a bias crime satisfies the group which purports to speak for the victim's "community," it sometimes offends the perpetrator's "community," which may see itself as being unfairly branded. For example, some white journalists charge, whether accurately or not, that there is a double standard by which crimes committed by whites against minority group members are denounced and classified (by the newspapers as well as the police) as racist and bias-related while crimes by minorities against whites are not.(9) The Central Park jogger case, for example, was not labelled a bias crime, apparently because the mixed group of black and hispanic assailants attacked a few hispanic as well as white victims. More recently, representatives of the orthodox Jewish community in Crown Heights have charged that violence by blacks against Jews has been under-counted.
So politically sensitive is the labelling decision that, in 1987, the Police Department established a Bias Review Panel consisting of the Deputy Commissioner of Community Affairs, the Director of the Department's Advocate's Office, the Chief of Detectives, and the Chief of Patrol; and in 1988, the Deputy Commissioner of the Office of Equal Employment Opportunity was added to the panel. The Panel meets on a regular basis and reviews those cases that are deemed appropriate for reclassification as submitted by the commanding officer of the Bias Unit. A case can be reclassified only when all panel members agree.
The Bias Unit's pronouncement on whether any particular crime is bias-motivated itself has become a volatile political issue which could exacerbate or even set off conflict. Thus, the labelling decision provides hotheads of all races and groups with something else to fight (hate) about.
Interestingly, more attention has been given to the labelling decision in individual cases than to the Bias Unit's aggregate statistics. From its inception to December 31, 1990 the Bias Unit investigated 3,639 cases; in addition, it either reviewed or investigated 3,834 non-bias cases. The proponents of stronger hate crime laws argue that this effort to identify bias crimes has been insubstantial and too conservative. They believe that the aggregate statistics are an obvious undercount and evidence the need for a much more vigorous effort to expose the true amount of racism, homophobism, and anti-semitism in New York City. I agree that the aggregate statistics hardly provide an adequate picture of criminals' bias motives, but I am skeptical that an adequate picture' could ever be drawn (Consider: how many hate crimes were committed during the Los Angeles' riots?), and even if it could, whether that would be desirable.
Working with the figures that we have provides some insights into the patterns of hate crimes and the characteristics of hate crime offenders. Hate crime appears overwhelmingly to be a phenomenon of individuals and youth gangs, not of organized racist and homophobic groups. In 1990, there were 530 bias incidents, and 13 other incidents were investigated and reclassified as non-bias. Of these, 150 were crimes against persons, businesses, or religious institutions demonstrating anti-Jewish animus; 148 were committed for reasons of anti-black prejudice; 118 indicated anti-white prejudice; 31 were motivated by bigotry against Hispanics; 47 were committed against gay persons; 22 were committed against Asian/Pacific islanders. As implausible as it may seem, there were no recorded bias crimes committed against Chinese, Koreans, or East Indians. This too, I think, is an excellent example of how the labelling exercise is driven by the mobilization and strength of interest groups.
With respect to types of crimes, the largest number (174) were assaults, followed by aggravated harassment by phone or letter (100), swastikas (65), KKK and similar racist slurs (41), confrontation/aggravated harassment (39), robbery (27), and property damage (15). Note that while "KKK and similar racist slurs" were categorized and counted, there was no comparable category for anti-gay and anti-lesbian graffiti and slurs. Moreover, no bias crimes constituting homicides, rapes, armed robberies, or arsons were reported in 1990!
After all the effort and politically sensitive decision making that goes into labelling crimes bias-related or not, what difference does such a categorization make? For the most serious crimes, those that are most wrenching for the social fabric, the answer is "not much." The most serious inter-group crimes, and those which are most likely to fan the flames of inter-group and intercommunity hatreds, like the Howard Beach (Yusef Hawkins) and Crown Heights (Yankel Rosenbaum) racial and anti-semitic murders or the homophobic murder of Julio Rivera in Jackson Heights, already attract maximum police attention and resources. There's probably not much that the Bias Unit can add to investigations already covered by experienced homicide and major crime investigators. Moreover, the maximum punishment for such homicides is already so severe that adding a substantive hate crime count to the homicide indictment and punishment to the sentence would not make any actual difference in the offender's time served. Thus, for purposes of police investigation, prosecution, and sentencing it really didn't matter whether the Central Park jogger case was classified as a bias crime. Indeed, it seems perverse that the occurrence of a horrendous rape or vicious assault is overshadowed in the media by controversy about whether the crime was "bias-related." Indeed, women's groups will rightly see a perversity in branding the gang rape a hate crime only if there was a racial motive. Any crime perpetrated by members of one gender against the other that is motivated in part by anti-gender animus ought logically to qualify as a bias crime.
In terms of deterrence, it is hard to believe that a potential rapist or murderer would desist from his crime because of an additional hate crime penalty or label. Thus, if the Bias Unit could reduce crimes motivated by the proscribed prejudices, it is more likely to be on the less serious crimes such as assault, harassment, and racist, homophobic, and anti-semitic graffiti. Possibly, the Bias Unit enhances law enforcement's response to such crimes by bringing more investigative resources to bear and by pressuring the D.A.s to prosecute such cases (in the minority of cases) when arrests are made. But such impacts are purely speculative. A unit of eighteen people (inclusive of administrators) can investigate only so many offenses in a City that has more than half a million reported crimes annually. And very few prosecutions have been brought under New York State's bias crime (aggravated harassment) statute.(10)
The way in which the vaulting of bias crimes into the limelight has impacted upon police priorities is nowhere better illustrated than by a recent incident involving an allegation by two black youths that they had been robbed and sprayed with white paint by white assailants.(11) Scores of detectives were sent to the neighborhood in which the crime occurred, and they remained on the job for weeks. Ultimately, they seem to have concluded that the assault was a hoax. If it was, perhaps it is attributable to the publicity such incidents generate.
I do not mean to say that the Bias Crime Unit has had no practical impact. The unit has investigated synagogue vandalisms that might have gone relatively unattended to. Even if no arrest is made, the unit's interest and concern may make a positive point about the City's and the Police Department's care about and sensitivity toward the targets of such incidents. Likewise, the unit has been called in on cases where members of one group encountered racism and religious discrimination when they sought to move into a neighborhood where they were in a small minority. In such cases the unit has offered advice, convened community meetings, and provided some minimum degree of protection and deterrence. Indeed, the Bias Unit's most significant impact may be as a community relations squad that can "cool out" potential hot spots and work with community groups on various kinds of systematic criminality. That being said, we must again be wary of falling for warmed-over platitudes and polyanna-ish visions of a harmonious community. Racial, religious, sexual, (and gender, age, handicap, union, and other) divisions create deep schisms in New York City and throughout the United States. While the NYPD Bias Unit's investigations and community initiatives, like Mayor David Dinkins' exhortations, can put the City government on record against inter-group hatreds and conflict, these schisms are deeply embedded and they may be exacerbated by groups, individuals, and media interpretations which seek to redefine the crime problem so far as possible as a problem of racism, homophobia, or sexism.
At the State level, Governor Mario Cuomo and Attorney General Robert Abrams have for the last several years been pushing hard for more anti-hate crime laws and initiatives. Back in 1987, Governor Mario Cuomo appointed a Governor's Task Force on Bias Related Violence. The Task Force's strongly worded Final Report recommended new legislation that would enhance criminal and civil penalties for bias crimes. It also called for police training, the formation of specialized bias crime units throughout the state, and the development of specific policies and procedures for law enforcement agencies.
Whether police departments in small and mid-sized cities throughout the state have the resources and capacity to implement the Task Force's recommendations is open to question. To my knowledge, however, there has not been an effort to implement the recommendations. However, in the wake of the Task Force Report, a number of substantive crime bills were introduced into the legislature. Governor Cuomo supports a bill that would criminalize "an action taken by a person with intent to deprive another individual or group of individuals of the exercise of their civil rights because of their race, creed, color, national origin, sex, disability, age, or sexual orientation." "Civil rights" is defined so broadly as to include practically any activity a person might engage in. Thus, in effect, any crime motivated by the enumerated prejudices would also constitute a hate crime and expose the offender to additional criminal liability and punishment.
Is such legislation necessary? It would be hard for any informed person to criticize New York for having too few criminal laws or too lenient punishments. We already have an ample number of laws to punish every conceivable criminal act. Moreover, our maximum penalties are almost certainly adequate responses to the most serious versions of most crimes. Recriminalizing behavior that is already well covered in the criminal code is hardly likely to produce a deterrent payoff.
But supporters of more hate crime labelling and legislation may argue that all this is beside the point. They see the real significance of hate crime legislation in political and symbolic terms. Passing criminal substantive, procedural, and reporting laws is now the goal of many victims' and advocacy groups, and of politicians who wish to demonstrate their solidarity. For example, in an August 15, 1991 open letter to members of the New York state legislature, Governor Cuomo states that "As government, our single most effective weapon is the law. I implore you to support the Bias Related Violence and Intimidation Act I have proposed, and make it clear to the people of this state that behavior based on bias will not be ignored or tolerated." After the killing of Yusef Hawkins and an incident at Brooklyn College where three Jewish students were beaten by ten assailants, Attorney General Robert Abrams said that the proposed Bias Related Violence and Intimidation Act "would send a message that hate crimes will be severely punished." David Wertheimer, executive director of the NYC Gay and Lesbian Anti-Violence Task Force, advocates hate crime legislation because "violence motivated by bigotry and bias should be identified as a unique category of a crime. Prejudices based on race, ethnicity, religion, disability, sex, or sexual orientation are related and often lead to physical attacks, and this violence cannot be tolerated in our society. Hate crime laws also could include human relations education at all levels of the primary and secondary school systems."
If minority groups want the Governor, legislature, and police department "to go on record" against racially, homophobic, religious, and gender-oriented violence, what is the cost in doing so? No right thinking people support hate crimes or the hatreds which they express; there is certainly no constituency for their perpetuation. While such laws may not be necessary and may not actually prevent any crimes, do they really do any harm?
Admittedly, I do not know the answer to this question, but there are a number of reasons for caution. First, hate crime legislation may substitute for true "institution building" in the areas of community relations. In effect, politicians may be getting off the hook too easily. Passing criminal law is becoming the political successor to throwing money at social problems. Throwing law doesn't cost any money and may even divert attention from the leadership, imagination, and incredibly hard work that is necessary to create a fairer, more tolerant, and more mature society. Indeed, it is even possible that deconstructing the criminal law to tease out the prejudice and bias that exists in the maximum possible percentage of crime may end up inflaming tense inter-group relations. And, as I said earlier, the very process involved in labelling some crimes bias-related and other not-bias-related may trigger its own spiral of resentment, conflict, and hating.
A second concern is that the new bias laws will be used more against minority groups than against the white majority.(12) This has apparently been the case in Britain. It is a little discussed fact of today's multiracial society that among interracial crimes (which are greatly outnumbered by intraracial crimes) those perpetrated by blacks and latinos against whites outnumber those perpetrated by whites against blacks and latinos. Given the intense societal fears of minority street crimes, it would not be surprising to see new hate crime laws used against minority offenders thereby reinforcing negative stereotypes and again triggering a downward rather than upward spiral in inter-group relations. That would be a travesty and a tragedy.
A decade ago many thoughtful individuals and the responsible press were opposed to even reporting the race of arrestees and their victims. This view was no doubt rooted in the belief that crime is crime no matter what the color or sexual preference of the perpetrator or victim. Furthermore, those who favored emphasizing a color-blind approach to law enforcement worried about the consequences of politicizing the crime problem so that it would come to be defined as a racial problem.
Now, the reverse policy seems to be gaining the ascendancy, especially among liberals who propounded the color-blind approach in the first place. Politicians, civil rights advocates, and many law enforcement personnel seem bent on discerning and labelling prejudice and bigotry in as many crimes as possible, and indeed in redefining the crime problem as a bigotry problem. I think this is a wrongheaded presentation of the crime problem and one that is not likely to pay off in terms of fewer hate crimes or more harmonious inter-personal and inter-group relations.
Our racial, ethnic, religious, sexual, and gender attitudes and behavior do need examination and attention. Building a more tolerant and cooperative multicultural society is America's greatest challenge. What I doubt, however, is that a new law of crime and punishment has much of a role to play in making things better. Indeed, it is possible, that the attempt to establish a kind of affirmative action in the criminal law will backfire and further exacerbate the problem.
I continue to believe that our goal should be a color-blind society and a color-blind criminal justice system. If certain types of inter-group offenses have been under-enforced and under-punished before, the solution is not to isolate them out for specially severe treatment, but to redouble our efforts to see that, insofar as we know how and are able, all crimes, no matter what the offender-victim configuration or the anti-social attitudes motivating the conduct, are treated even-handedly. If under-enforcement of hate crimes is a special problem, then it is appropriate to make changes in the police department that would assure that even-handedness. However, this is an entirely different approach from emphasizing the greater importance and seriousness of particular conduct called "hate crimes."
(1) 112 S.Ct. 2538 (1992). (2) Hate Crimes Statistics Act of 1990. (3) The New York City Police Department defines bias incident as "Any offense or unlawful act that is motivated in whole or in part by a person's, group's or place's identification with a particular: race, religion, ethnicity or sexual orientation." New York City Police Department Bias Incident Investigation Unit 8 (Sept. 1991). (4) O'Kelly, Motivation, 10 Int'l Encyclopedia of the Soc. Sci. 507-13 (1968). (5) Daniels, Youth 17, Beaten by Flatbush Gang in Bias Attack, N.Y. Times, Oct. 15, 1991, at B3. (6) Interestingly enough, one of the gang who chased the three black boys in Howard Beach was also black and interpreted the event as a question of turf, not race. (7) New York City Police Department Bias Incident Investigation Unit 10-12 (Sept. 1991). (8) Epstein, The Joys of Victimhood, N.Y. Times, July 2, 1989 (Magazine), at 20. (9 ) "What is striking, though, is the difference between the way the press treated the jogger case and the way it responded to such notorious white-on-black criminal episodes as Howard Beach and Bensonhurst." (Anderson, Crime, Race, and the Fourth Estate, 42-20 National Review 52. (10) A person commits the crime of aggravated harassment in the second degree when ... with intent to harass, annoy, threaten or alarm another person, he ... strikes, shoves, kicks, or otherwise subjects another person to physical contact or threatens or attempts to do the same because of the race, color, religion, or national origin of such a person.
New York Penal Law [subsection] 240.30. Aggravated harassment in the second degree is a class A misdemeanor.
A person commits the crime of aggravated harassment in the first degree when with intent to harass, annoy, threaten, or alarm another person, because of the race, color, religion, or national origin of such a person he:
(1) Damages premises primarily used for religious purposes...
(2) [Commits the offense of aggravated harassment in the second degree a second time] New York Penal Law, [subsection] 240.31. (11) Sadness and Shame in the Bronx, N.Y. Times, Jan. 10, 1992, at 26. (12) While some law review writers have advocated that new hate crime offenses should encompass only harms perpetrated by white males against members of minorities, no state statute has adopted that view.
James B. Jacobs is Professor of Law and Director, Center for Research in Crime and Justice, New York University School of Law. He is author of "The Emergence and Implications of American Hate Crime Jurisprudence," in 22 Israel Yearbook on Human Rights 39-65 (1992).…