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A series of horrific incidents, including several racially inspired shooting sprees by white supremacists and the brutal torture and murder of gay men in Wyoming and Alabama, has reignited the debate over "hate-crime" laws. The federal government and nearly 40 states now have laws that create new liability or increase the punishment for crimes committed be cause of the victim's race, sex, religion, and (in some cases) sexual orientation. In the wake of the Wyoming murder of Matthew Shepard, President Clinton called for sexual orientation to be added to the list of categories in the federal law, and similar efforts arose in several states.
Hate Crimes: Criminal Law and Identity Politics, by law professor James Jacobs and lawyer Kimberly Potter, was published just as this debate reopened. The book is a broadside attack on the hate-crime legislation enacted in the 1980s and 1990s. It advocates not only refraining from extending the reach of hate-crime laws but going on to repeal them in whole or large part.
Jacobs and Potter's attack proceeds on three fronts: hate-crime laws, they contend, are unconstitutional, unnecessary, and in fact, counterproductive. Such laws unconstitutionally restrict free expression, the authors say, because they add punishment to a crime solely for the perpetrator's thoughts or opinions. They are unnecessary because the ordinary criminal laws already provide potentially severe penalties for assaults, murders, or rapes, and there is no empirical evidence that such crimes have more serious social consequences just because some element of prejudice is involved. Indeed, Jacobs and Potter argue, hate-crime laws operate as little more than "symbolism"; they are products of the last two decades' "identity politics," in which groups compete to secure official recognition that they are victims and official pronouncements that prejudice against them is bad.
Moreover, such symbolic politics is worse than just a waste of time, the authors argue: it is counterproductive to the fight against violent crime. Hate-crime laws raise hackles in the legislature over what forms of prejudice should be included and excluded, and at trial by further injecting racial or other disputes and resentment into what ought to be simple prosecutions for beating or killing another human being.
Jacobs and Potter stand on their weakest ground when they argue that hate-crime laws are constitutionally invalid restrictions on free speech. The U.S. Supreme Court unanimously up held hate-crime laws under the First Amendment in 1993 in Wisconsin v. Mitchell, concluding that they punish conduct, not speech or expression. The Court noted that there is a host of federal and state antidiscrimination laws that make it illegal to engage in conduct—such as firing an employee or refusing to serve a customer—because of the victim's race, sex, religion, or other characteristics. The constitutionality of these laws has always been up held, even though they may involve looking at the defendant's expressions—for ex ample, racial epithets by a work supervisor—to determine whether he acted against the victim for discriminatory reasons. Moreover, racial or other prejudice can already be inquired into to establish general criminal-law issues such as motive.
Jacobs and Potter say that hate- crimes differ from employment discrimination because the underlying conduct, whether assault or murder, is already punished, so the only reason for increasing the sentence is to punish the criminal's beliefs. But hate-crime laws typically rest on the judgment that crimes motivated by racial or other kinds of prejudice cause greater harm to society by fomenting division among groups, causing fear within minority groups, and provoking retaliation by other members of the attacked group. Jacobs and Potter disagree with that judgment and set forth evidence against it, but they fail to show that the judgment is unconstitutional as opposed to just bad policy.
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