A hate crime (frequently referred to as a 'bias-related incident,' to take the sting out of it) is an offense against a person or a group motivated by a classifiable difference. That is, the reason for the offense is 'bias against.'

The FBI tallies Hate Crimes as part of its annual 'Uniform Crime Report.' In the Forward to the 'Hate Crimes Report' for the year 1996, they define hate crimes as 'motivated by pre-formed negative bias against persons or organizations based solely [my emphasis] on race, religion, ethnicity, national origin, sexual orientation or disability.'

Four years later, a change of phrase brings us this plaintive introduction: 'Sterilized from emotion, hate crime ... is those offenses motivated in part [my emphasis again] or singularly by personal prejudice against others because of a diversity.' The FBI has created definitions to characterize the offenses for purposes of their crime reports. Since state laws vary greatly, and local prosecutors have considerable discretion when it comes to charging offenders, law enforcement agencies must be aware of these different standards of scrutiny when making charges against offenders.

The use of 'solely' in the 1996 definition made it difficult for the criminal justice system to decide if something should be defined as a hate crime, since there are often multiple motives for offenses. Making it sufficient for the bias to be only a part of the motive opens the door to include many more incidents, and makes it easier on the investigating officers.

In the U.S. over the past 20 years or so, most states have passed bias crime laws. These laws are intended to make a special category for crimes that specifically target members of recognized groups that have been subject to systematic persecution because of their identity. These categories of victims include race, national origin, ethnicity, gender, sexual orientation and disability. (Only 22 of these states include sexual orientation).

And there was a public perception that (white Christian heterosexual) police, prosecutors and judges were not dealing appropriately with minor incidents of harassment and vandalism that were 'bias-motivated.'

Because of the scant number of prosecutions under these laws, the extremely graphic nature of a few high-profile cases across the country, and the scandalous unreliability of the data, no one knows if there has been any discernable effect from these laws, or if there are any detectable trends up down or sideways in the occurrence of bias related incidents.

Hate Crime laws

According to the National Gay and Lesbian Task Force, 'there are three key elements to all hate crimes laws: (1) bias motivation, (2) criminal conduct and (3) penalty enhancement.'

In Virginia, statutes provide penalty enhancements for three misdemeanors - assault, assault and battery, and trespass. If a (misdemeanor-level) assault and battery is based on race, religion, color, national origin or condition of disability, the charge can be upgraded to felony assault, with a much stiffer sentence possible. Virginia thus does not include more serious crimes.

Kent Willis, Regional Director of the ACLU in Richmond, says 'the Virginia law is a penalty enhancement for things that are not a felony already -- to create a higher penalty for things that would otherwise be minor. The feeling in the legislature was that felonies already carry the potential for appropriately harsh sentences.'

There is no federal hate crimes statute - the Justice Department can only prosecute under the civil rights act. For local matters the FBI can only investigate at the request of the local authorities; it then turns the case over to be prosecuted locally, if it is warranted.

Because many people think of themselves as members of a group that can be singled out for violence or exploitation, there are continual attempts by interest groups to expand the classifications - see the box at the end of this article.

Is cross-burning Not a hate crime?

Since 1952, Virginia has had a statute outlawing the burning of a cross for the purpose of intimidation, making it a class 6 felony. One case that tested the law involves an incident on the evening of May 2, 1998, when a group was consuming alcohol at the Virginia Beach home of David Targee, 17. A member of the group named Richard Elliott, 19, voiced complaints about a new neighbor of his in Pungo, a black man named James Jubilee.

Jubilee had complained to Elliot's mother about members of the Elliott family discharging weapons in their back yard, next door to his home. A consensus formed at Targee's that night, that a reasonable way to express disapproval of Jubilee while supporting Elliott would be to burn a cross in Jubilee's yard, which Elliott, Targee and a third teen-ager named Jonathan O'Mara, also 19, proceeded to do. The next morning the Jubilee family found it in their lawn.

The three were prosecuted under the cross burning statute. O'Mara entered into a plea agreement and was sentenced to 90 days in jail and a $2,500 fine. A jury found Elliott guilty of attempted cross burning. He also was sentenced to 90 days in jail and fined $2,500. Targee served 15 days in a juvenile facility. His convictions will not be a part of his adult record.

They were not prosecuted under the hate crime enhancement, possibly because their crime had not been done for a clearly bias-related reason - the anger at Jubilee was because he complained about the gunfire, not because of his race. The form of the expression of the animus, burning a cross, seems to have suggested itself because of his race, after the fact.

The convictions were overturned on appeal earlier this year, the Supreme Court of Virginia agreeing with the defendants that burning a cross is 'protected speech.'

The decision of the court doesn't mention the fact of trespass - they entered into Jubilee's yard to burn the cross. (It ought to be mentioned that the cross, made hastily in Targee's garage, was about two feet tall, and that Jubilee reported that when he found it, it had 'burn marks' on it. We're not talking about 'Birth of a Nation' here).

But nowhere is it reported why the decision was made to prosecute under the inflammatory cross burning statute in the first place (and then let the punishment get bargained down and assessed at what Mr. Jubilee called 'a slap on the wrist') when the trespass hate crime law was just as available.

Recent bias-related incidents

In Charlottesville there was a string of attacks in the fall and winter of 2001/2002 by local (mostly black) kids against (mostly white) UVa students. The assaults carry a whiff of racial bias, based on widely reported statements attributed to some of the assailants claiming that victims were chosen based on race.

On March 28, 2002 an 18-year-old (African-American) involved in one assault plead guilty to a misdemeanor charge (no hate crime enhancement), and was sentenced to 30 days in jail plus probation and community service. A member of the Charlottesville High School football team and a young man well regarded in the local community, he claimed to have joined in the assault on the mistaken assumption that it was his friend, a black teen-age girl, who was in fact being assaulted. The prosecution did not dispute this contention.

It was announced by Charlottesville Commonwealth's Attorney Dave Chapman after the sentencing that the others indicted (all black and under 18), will not face hate crimes charges. And two other teens (white), have not been charged although present at one of the attacks. (A recent comment by Chapman indicated that in fact it was still possible that one of the two, a girl, may be charged.)

According to the Daily Progress, Chapman said that statements indicating the victims were selected because of race were made generally and without implicating any individuals … 'there is not proof beyond a reasonable doubt.' Other motives have been mentioned in reports of what has been said by various members of the group during interviews with police, including basic thrill-seeking and town-vs.-gown resentments.

Some incidents in Charlottesville over the past five years, recorded at the time as bias related, are at best highly ambiguous. For example, two women get into a dispute over a parking place. In the course of discussing it (loudly and publicly) one calls the other a [racial epithet]. The investigating officer feels called upon to report the bias-related nature of the incident.

A black woman is stopped while driving erratically. As the officer attempts to assess her condition of sobriety, she grows increasingly abusive, and at one point accuses the officer of having stopped her because of 'racial profiling.' Since this is a claim of racial bias, the officer dutifully notes that the incident is bias-related.

A man who is deaf comes out of his house to find his bicycle missing. He reports the theft, and tells the investigating officer that in his opinion, the bike has been taken because 'people think I'm stupid' because I don't hear them. This shows up in the reports as a 'bias-related because of a physical handicap.'

In each of these instances, notice that the bias was not clearly present prior to the incident.

The only conviction we have been able to find for a bias-related incident under the Virginia statute is quite recent, and quite topical. A deliveryman named Michael Johnson, 50 (and 350 lbs) and Mustafa Nazary, an Afghan immigrant also making a delivery, were in a parking lot in Alexandria last fall, listening to President Bush delivering a eulogy for victims of September 11th on the radio. Johnson accosted Nazary (a much smaller man), asking if he was an Afghan. The two got into a dispute, and Nazary was followed and badly beaten.

Tried under the enhanced charge of hate-related felony assault, Johnson was sentenced to 60 days in jail, plus probation and substance abuse counseling. Alexandria Commonwealth's Attorney S. Randolph Sengel said the racial overtones of the beating warranted a longer sentence, and in fact the judge could have given Johnson up to five years. After the sentencing, Nazary said he was disappointed -- he had hoped that prosecution of the crime would send a message about racial violence and hate crimes.

We have tried to find out if there have been any other prosecutions and convictions as a result of the Virginia hate crimes statutes. In following up on these and a number of other local reports, we are in fact told that the hate crimes statutes for assault and trespass have never been invoked in Charlottesville or Albemarle County - it is possible, we are told, that there have been charges in instances of bias-related vandalism, but of course there is no hate-crimes law against vandalism without trespass.

Do we need special legislation for hate crimes?

Brian Levin, an attorney and associate professor of criminal justice at the Richard Stockton College of New Jersey, makes several strong arguments for having these laws on the books and using them. For one thing, he cites a study that found that 'hate crime assaults are twice as likely to cause injury and four times as likely to result in hospitalization as assaults in general.'

And, says Levin, these offenses 'are simply more dangerous and risky to the stability of a civilized society. … it is thoroughly appropriate to punish them more harshly.'

On the other hand, many people familiar with the issues think that these laws are ineffectual or even counterproductive. David Scovin, Executive Director of Virginians for Justice, a gay and lesbian advocacy organization, says that his office 'gets a lot of calls claiming someone is the victim of a hate crime. And in my time here, exactly zero were hate crimes, when you really looked at them.'

He thinks that a real hate crime, as the original laws were intended, was a 'crime that was committed to send a message to a broader community.' And even those incidents that fit his definition are rarely prosecuted as hate crimes.

'Sending a message' is First Amendment territory - many actions that offend or intimidate are protected speech.

Fran Lawrence, a lawyer in Charlottesville, doesn't like the 'hate crime' laws. 'Sentencing enhancement is a stupid idea - we don't need more crime [categories] and we certainly don't need more mandatory minimum [sentences]. ... The notion of a hate crime turns on what's in someone's mind, and you're never really going to know that. On the other hand, I can see going after civil remedies. It makes sense to me that you can sue somebody for money for what's in their head, but not if they're facing jail time.'

According to a Virginia Commonwealth's Attorney with years of experience, adding the 'Hate Crime' description to a charge raises the standard of proof, making conviction more difficult. And he feels that judges are quite capable of taking the circumstances of an offense into account for sentencing, even if the crime is not given a special label.

Says the Commonwealth's Attorney, 'Prosecutors want the cleanest possible scenario to go into court with. ... [They] want to get the most amount of [prison] time with the least amount of work.'

Rick Kern is the Director of the Virginia Criminal Sentencing Commission. The Commission studies the criminal justice system in the state, and publishes guidelines for judges to use in sentencing. He has a real problem with the notion of sentence enhancements: 'sentencing guidelines [that we produce] don't acknowledge differences [of motive], [and in practice] judges don't make those distinctions.' In Virginia 'a hate crime prosecution is so rare - and the predicate crimes carry stiff sentences already.'

'And we don't want to make class distinctions among victims - we [the Sentencing Commission], at trial, don't want the Commonwealth's Attorneys creating a distinction among victims. And we think this will result in fairer, more equitable outcomes. They have added mandatory minimums in the same law to give special protection based on occupation to police, fire, medics - maybe they should include sports referees ….'

Kern sums up his feelings this way: 'Hate Crimes laws are basically feel-good legislation. I don't think they've changed anything.'

Says Virginians for Justice's Scovin, 'These laws came about at a time when we were all chanting 'Hate Crimes' - maybe it's time to take a look at their legal viability - to see if there's a better way to get these [crimes] prosecuted.'

'If they're not being prosecuted ... what's the point of having them?'

What do you think?

The great mainspring of hate crime laws is that there would not have been a crime at all without the hate. Breaking a window is vandalism. But without the bias, the window would not have been broken. Punching someone out is aggravated assault. Without the bias, would the punch have ever been thrown? But these crimes, once committed … are crimes. There are laws against them, and there is prosecutorial discretion in bringing charges and judicial latitude in sentencing, which can accommodate any special circumstances.

Advocates of these laws mention society's extra disapproval of these acts. Yet in the one case where a prosecution resulted in a conviction, the penalty was quite mild.

So the question is, do these laws accomplish a useful purpose? Should we work to extend them, including more groups and covering a greater range of crimes?

Could they be refined in some way so that society's disapproval of bias-related offenses could result in appropriate prosecution and sentences? (Dave Sagarin, April 1, 2002)