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? …