Hate Crimes

Hate Crime Laws

In the 1970s and 1980s, several organizations became concerned with the prevalence of violence fueled by bias, and these organizations began to lobby states to pass hate crime laws. By 2010, nearly every state had enacted hate crime legislation. In addition, in 2009—after more than a decade of debate in Congress—a federal hate crime bill was signed into law by President Barack Obama. Although the details of these laws vary among jurisdictions, most of them work by increasing the severity of penalties when criminal acts are motivated by a perception of the victim's race, religion, ethnicity, sexual orientation, or other group affiliation. Thus, these laws are often referred to as penalty enhancers.

Hate crime laws have been controversial in several respects. One area of controversy concerns the laws' constitutionality. Critics have argued that the laws violate several parts of the U.S. Constitution, including the First Amendment's freedom of expression and the Fourteenth Amendment's Due Process and Equal Protection clauses. The laws have been challenged in court as well. By and large, these challenges have not been successful. Most courts, including the U.S. Supreme Court, have held that hate crime laws are permissible. However, courts have made a distinction between hate crimes, in which an already prohibited act (such as assault, vandalism, or trespassing) receives additional punishment because of a biased motivation, and hate speech, in which the law attempts to prohibit constitutionally protected speech. Hate crime laws are permitted, whereas hate speech laws generally are not. Therefore, a person might be punished for physically attacking another person because of the victim's race, for example, but could not be punished for publishing or distributing literature that expresses hatred toward another race.

A second area of controversy has been which groups to include within the hate crime law. All hate crime laws encompass crimes committed because of the victim's race, religion, ethnicity, or national origin. By 2010, however, only 31 states included sexual orientation, 27 included gender, and 12 included gender identity. Some states include other categories as well, such as disability, age, and political affiliation. Recently, some people have advocated for the [Page 302]inclusion of homelessness as a category. It has been argued that deliberate exclusion of groups that frequently are targets of bias sends an implicit message that violence against members of these groups is acceptable.

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