Hate Crimes: Criminal Law & Identity Politics

Hate Crimes: Criminal Law & Identity Politics

Hate Crimes: Criminal Law & Identity Politics

Hate Crimes: Criminal Law & Identity Politics

Synopsis

In the early 1980s, a new category of crime appeared in the criminal law lexicon. In response to concerted advocacy-group lobbying, Congress and many state legislatures passed a wave of "hate crime" laws requiring the collection of statistics on, and enhancing the punishment for, crimes motivated by certain prejudices. This book places the evolution of the hate crime concept in socio-legal perspective. James B. Jacobs and Kimberly Potter adopt a skeptical if not critical stance, maintaining that legal definitions of hate crime are riddled with ambiguity and subjectivity. No matter how hate crime is defined, and despite an apparent media consensus to the contrary, the authors find no evidence to support the claim that the United States is experiencing a hate crime epidemic--instead, they cast doubt on whether the number of hate crimes is even increasing. The authors further assert that, while the federal effort to establish a reliable hate crime accounting system has failed, data collected for this purpose have led to widespread misinterpretation of the state of intergroup relations in this country. The book contends that hate crime as a socio-legal category represents the elaboration of an identity politics now manifesting itself in many areas of the law. But the attempt to apply the anti-discrimination paradigm to criminal law generates problems and anomalies. For one thing, members of minority groups are frequently hate crime perpetrators. Moreover, the underlying conduct prohibited by hate crime law is already subject to criminal punishment. Jacobs and Potter question whether hate crimes are worse or more serious than similar crimes attributable to other anti-social motivations. They also argue that the effort to single out hate crime for greater punishment is, in effect, an effort to punish some offenders more seriously simply because of their beliefs, opinions, or values, thus implicating the First Amendment. Advancing a provocative argument in clear and persuasive terms, Jacobs and Potter show how the recriminalization of hate crime has little (if any) value with respect to law enforcement or criminal justice. Indeed, enforcement of such laws may exacerbate intergroup tensions rather than eradicate prejudice.

Excerpt

If a person . . . intentionally selects the person against whom the crime . . . is committed or selects the property which is damaged or otherwise affected by the crime . . . because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person or the owner or occupant of that property, the penalties for the underlying crime are increased . . . [by as much as triple]

Wisconsin hate crime statute, upheld by the United States Supreme Court in Wisconsin v. Mitchell.

ALTHOUGH THE UNITED STATES is one of the most successful multiethnic, multireligious (if not multiracial) societies, its history is also blighted by many deplorable incidents--sometimes campaigns-- of anti-Semitic, anti-black, xenophobic, homophobic, and anti-Catholic violence, and all kinds of criminal conduct motivated by other prejudices. Only recently, however, have such incidents been defined as "hate crime."

Before the mid-1980s, the term "hate crime" did not exist. "Hate crime" as a term and as a legal category of crime is a product of increased race, gender, and sexual orientation consciousness in contemporary American society. Today, hate crime or, as it is sometimes called, bias crime is quickly becoming a routine category in popular and scholarly discourse about crime. These terms add a new component to our criminal law lexicon and to our way of thinking about the crime problem. Consequently, we now (or will soon) find it natural to think of the hate crime problem and the hate crime rate as distinct from the "ordinary" crime problem and the "ordinary" crime rate. This reconceptualization . . .

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