The Case Against Hate Crime Laws
Conversely, two of the most outspoken critics of hate crime legislation, James Jacobs and Kimberly Potter (1998), argue the case for abolishing hate crime laws altogether. In essence, Jacobs and Potter (1998) challenge the foundations upon which the case for hate crime legislation is made on moral, legal, political and practical grounds. For them the alleged hate crime epidemic in America is simply not 'real'; it is a social construction. Indeed they argue that America is freer of prejudice and hatred now that it has been for the past century, and the same might also be argued for the UK. Rather, the 'hate epidemic' is a product of heightened public sensitivity to prejudice, the success of minority groups in moving 'identity politics' into the realms of criminal justice, the acceptance of broad legal definitions that encapsulate comparatively meaningless low-level offences for which the strength of the hate element is debatable, and an irresponsible media which exaggerates the latter point. Ultimately Jacobs and Potter are of the opinion that there is nothing so unique to hate crime that means it cannot be adequately responded to by generic criminal law.
Jacobs and Potter (1998) are particularly questioning of the reasoning behind enhanced penalties for hate offending, and they attack this issue on several fronts. Under such legislation, offences with a 'bias motive' attract higher penalties than those without and, significantly, given that the crime is already illegal under other pre-existing legislation, hate crime laws punish the offender's motivation in addition to punishing the offence committed. In this sense, then, hate crime may be viewed as a 'thought crime' as it is only the offender's motivation that separates it from any other crime. The question that remains poses something of a legal and moral dilemma; is it right to impose extra sanctions for an offender's prejudice when he or she commits a crime that is already proscribed and therefore punishable by existing criminal law? If the act is likely to be illegal anyway, is it right to additionally punish the offender's thought process behind the commission of that act? And even if we decide that it is right (as we do when we distinguish between murder and manslaughter, for example), in the absence of an admission from the offender, how can we accurately judge that thought process? In other words, how can we be sure that an offender is prejudiced and that the offence was motivated or aggravated by that prejudice?
A second problem for Jacobs and Potter (1998) concerns the extent and effectiveness of the supposed deterrent effect of such laws. For example, if an individual is prepared to carry out an offence that already carries a proscribed punishment, how can we be certain that simply increasing the potential for punishment will cause the offender to rethink? Jacobs and Potter (1998) argue that at best the deterrent effect will be marginal, and this problem has historically been amplified by the relative ineffectiveness of law enforcement agencies in apprehending, prosecuting and convicting hate crime offenders, and the imposition of lenient sentences when they do.
Iganski (1999) also questions the deterrent effect of hate legislation. He argues that the logic behind the assumption that legislation will deter offenders is both contorted and difficult to sustain, and is difficult to measure empirically. Iganski (1999) argues that there is little empirical evidence to support a correlation between sentence and deterrence and that in any case the sentence available for a basic offence should be sufficient in itself without the need for an additional penalty for the 'hate' element. Furthermore, he rightly points out that what may act as a deterrent to one person will not necessarily amount to the same thing for another.
The 'moral, educational and general deterrent message' contained within hate legislation is also questioned by Jacobs and Potter. They argue that generic criminal law already sends a strong message about which behaviours are right or wrong and therefore the value of specific education or deterrence in this respect is highly questionable. In addition, for the most part the worst hate crimes are already punishable by the maximum available sentence and it is therefore simply not possible to enhance the sentence further.
Thirdly, Jacobs and Potter (1998) highlight conflicts over the inclusion of certain prejudices and exclusion of others, and conflicts over labelling individual hate crimes. We have already noted the extent of definitial problems and the impact they can have on the 'hate crime problem', and this issue is exaggerated by the lack of uniformity across the United States in legislative terms. What is an offence in one state may not be in another, and where two states outlaw a hate crime, the punishment may in all probability vary greatly between them.
Similarly in England and Wales, 'hate' legislation specifically outlaws racially and religiously motivated offending, and contains lesser provisions for homophobia and disability bias, yet makes no mention of other prejudices. Critics argue that what we are effectively saying to society is that the victimisation of some groups is more important than others, and that these victims are somehow less deserving of similar protection under the law. In these circumstances the symbolic message of legislation may be a negative one. Identifying what to officially legislate against is therefore problematic and controversial and, rather ironically, is an act of discrimination in itself. On the other hand, if we include all identifiable groups in legislative protections then hate crime laws will simply be co-terminus with generic criminal law.
Other problems associated with hate crime laws, according to Jacobs and Potter (1998), include the negative picture of intergroup relations that such legislation produces, in particular the 'message' that social relations in a country are in such a bad state that an official response is not only required but is essential. Furthermore, publishing crime statistics that they believe do not reflect the reality of the situation simply serve to highlight the poor state of social relations. Andrew Sullivan (1999) builds upon this argument, suggesting that legal attempts to repudiate a past that treated people differently on the basis of some personal or group characteristic may only serve to create a future that permanently does exactly the same.
Jacobs and Potter (1998) also challenge both the 'greater intent' argument, and the notion that hate crime has a greater impact upon the victim and the wider community. With regard to the former, whilst the principle of linking punishment to motive is viewed as perfectly legitimate, Jacobs and Potter (1998) question the idea that prejudice is more morally reprehensible than other motivations for crime such as greed, power, spite and so on. Simply, is the motivation behind hate crime really any worse that the motivation that propels any other crime?
With regard to the 'greater impact' argument, Jacobs and Potter (1998) question the extent to which this can be justified. They are highly critical of the research that has underpinned this view, claiming it to be dependent upon dubious empirical assumptions that produce assertions that cannot be substantiated. They also question the 'unique' impact that hate crime has on the wider community, arguing that to suggest that many of the 'low-level' offences spread 'terror' through communities is simply exaggerating the reality of the situation.
Furthermore they point out that hate crimes are hardly unique in spreading fear throughout a community. All crimes have the potential to spread fear throughout communities, and if this is the case, as it undoubtedly is, why is it that hate crime is singled out on this basis? Ultimately, other crimes, and not just hate crimes, have an impact upon innocent third parties, yet these are not specifically legislated against with enhanced penalties in the same way that hate crimes are.
Another contentious issue concerns the view that legislation is required to address a hate crime 'epidemic'. The existence of an 'epidemic' of hate crimes, and the additional contention that they are becoming increasingly violent, is difficult to assess because of the dubious reliability of relevant statistical data. An 'epidemic' therefore seems unlikely. FBI figures suggest that hate crime trends have remained broadly consistent over a number of years, and although they are undoubtedly lower than the true incidence of hate crime, the fact that there is no significant jump suggests that the existence of an epidemic is unlikely. Conversely, from the police statistics in England and Wales an epidemic does appear to have occurred, but this is more likely to be attributable to recent definitional changes and increased confidence amongst victims to report incidents rather than a real rise in hate crimes.
In making the case for repealing hate crime laws, Jacobs and Potter (1998, p. 153) conclude that:
"Certainly, crime is a problem today. But the crime problem is not synonymous with the prejudice problem; indeed, there is very little overlap between the two. With the important exception of crime against women, most crime is intraracial and intragroup. Hard core ideologically driven hate crimes are fortunately rare. Teasing out the bias that exists in a wider range of context-specific crimes that may occur between members of different groups serves no useful purpose. To the contrary, it is likely to be divisive, conflict-generating, and socially and politically counterproductive."
Whilst these views may seem fairly persuasive, Jacobs and Potter's (1998) provocative stance has been counter-attacked from a number of quarters. Their dismissal of the consequences and impacts of hate crime has raised concerns, particularly in the light of emerging literature supporting the claims of proponents of legislation. McLaughlin (2002) suggests also that Jacobs and Potter (1998) under-represent the struggle undertaken by minority and advocacy groups in order to have their plight taken seriously by the majority society, and that their definition of advocacy groups as deliberately and inherently antagonistic and divisive is critically flawed. Furthermore, he points out that much of the media coverage of hate crimes has traditionally been significantly less extensive and influential than Jacobs and Potter (1998) claim. Nevertheless, the views expressed by Jacobs and Potter (1998) have rightly sparked important theoretical and moral debates and raised important issues that have to be considered. The points that underpin their case deserve close attention and serious consideration, and remind us that legislating against hate is far from straightforward.
Barbara Perry (2001) also notes the importance of Jacobs and Potter's (1998) scepticism. However, she too is critical of their views. Perry (2001) takes particular issue with the claim that hate crime laws are socially divisive. Rather, she suggests, it is hate crimes that are, and always have been, socially divisive, and not the legislation. Perry (2001) argues that because hate crime is embedded in wider social structures, legislation is not the cause of intergroup hostility. Rather, the enactment of legislation is just one of many ways of responding to the manifestation of long existing antagonisms.