Can the law adequately define hate: Punishing the intangible
Updated: May 20, 2021
A demonstrator participates at a rally "Love Our Communities: Build Collective Power" to raise awareness of anti-Asian violence outside the Japanese American National Museum in Little Tokyo in Los Angeles Saturday, March 13, 2021. (AP Photo/Damian Dovarganes), https://www.ctvnews.ca/canada/reports-of-anti-asian-hate-crimes-are-surging-in-canada-during-the-covid-19-pandemic-1.5351481
#StopAsianHate. #BlackLivesMatter. For a plethora of reasons, 2020 and 2021 so far have been the hardest and harshest times for many people, especially people of color. Discontentment, frustration, and feelings of ‘otherness’ have long riddled American society, but they have been well suppressed until now. The coronavirus pandemic has peeled back the curtain and revealed the nation’s structural and institutional bias against people of color, which have instilled implicit biases among law enforcement officials and infected the criminal justice system. In 2020, hate crimes in the United States – including vandalism, intimidation, assault, and murder – rose to its highest levels in more than a decade. Because hate crimes send messages to all members of the victim’s group that they are “unwelcome and unsafe in the community,” and victimize the entire group, hate crime laws proliferated to send an opposing message of “tolerance and equality, signaling to all members of society that hatred and prejudice on the basis of identity will be punished with extra severity.” However, the codification of hate laws has only proven effective in theory.
For starters, the FBI defines hate crime as a violent or property crime that is “motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.” For example, nine out of ten incidents involve violence and a quarter of those cases involve weapons. At the beginning of the pandemic, President Trump insisted on using “China virus” and “Kung-flu,” scapegoating the Chinese people for the explosion of COVID-19 in the United States and the media publicized this anti-Asian rhetoric. The Trump Administration enabled and legitimized hate, giving people permission to act on their prejudice. From March 19, 2020 to February 28, 2021, almost 4000 hate incidents were received by the Stop AAPI Hate reporting center. Further, the Pew Research Center found that from March to June 2020, approximately forty percent of surveyed U.S. adults said it was more common “for people to express racist or racially insensitive views” about Asians compared to before COVID-19. However, Anti-Asian sentiments in the U.S. are not new. The Chinese Exclusion Act of 1882 was passed in response to “Yellow Peril” and the Act marked the first time in U.S. history that a group was singled out for exclusion based on race. Discrimination was legitimized, and a shadow society was consequently created, but centuries of invisibility afterward have minimized people’s individual experiences, creating the Asian monolith.
With hate crimes on the rise and reporting on the decline, there was optimism for hate crime laws, but quickly, the challenges outweighed the benefits. One of the earliest instances of federal hate crime legislation was the Civil Rights Act of 1964, but “local enforcement in the Jim Crow South simply refused to investigate or prosecute” hate crimes. In 1988, the Uniform Federal Crime Reporting Act established the FBI’s Uniform Crime Reporting (UCR) program and the FBI subsequently created its annual Hate Crime report. But the old cliché “statistics lie” especially holds true for hate crimes because, despite more than 200,000 victims yearly, they appear almost non-existent in the United States. Law enforcement agencies do a poor job collecting and categorizing hate crime data and “agencies are not required to participate in the FBI’s UCR program.” For example, in 2018, 87.4% of participating agencies “reported zero hate crimes.”
Moreover, in the Bureau of Justice Statistics’ 2009 to 2017 National Crime Victimization Survey, forty-four percent of respondents experienced hate crime and did not report it believing that police would not help. Because hate crimes are especially injurious and typically entail escalation, a “swift and strong response from law enforcement can help stabilize the harmed community.” But officers are not adequately trained to “recognize hate crime for what it is.” For example, officers “may not understand the victims’ culture or language, much less know how to ask the right questions, interpret body language, or read between the lines in their statements.” Implicit bias training can theoretically “root out discriminatory practices in law enforcement agencies,” but they are ineffective because the most harmful form of bias entrenched within law enforcement is “explicit racism.” Law enforcement is often indifferent to motive; murder is murder and prosecuting it as an act of hatred is just extra paperwork.
The biggest challenges to hate crime legislation is defining hate, determining its scope, and ensuring equitable and accountable enforcement across all states. The intended message is tolerance and equality but hate crime laws tend to encourage U.S. citizens to view themselves, not as “members of society, but members of a protected group.” Oregon was the first state to codify hate crime laws in 1981. Since then, forty-six states have enacted differing hate crime laws, especially regarding the scope of protection. Enforcement of hate crime statutes have also been primarily motivated by politics because it was politically correct to support certain groups or to be “tough on crime.” A re-evaluation of hate crime legislation was published in the Pace Law Review in 2017 and it was argued that procedurally, hate crime laws are often found unconstitutional because a vaguely defined statute that varies in meaning and differs in application violates due process. Furthermore, substantively, individuals are protected from multiple prosecutions and punishments for the same offense through the Double Jeopardy Clause; their speech, thoughts, and beliefs are protected by the First Amendment; and hate crime laws seemingly value the safety of certain victims and arbitrarily exclude the safety of others, which may violate the Equal Protections Clause.
When left unacknowledged, hate crime is like a cancer and its toxicity undermines America’s core beliefs and constitutional freedoms. Hate crime laws exacerbate these social animosities and hate crimes are rarely charged as what they really are. Police have an ongoing role in hate crimes and communities; thus, reforms and programs must train officers to facilitate investigations, be points of contact for communities, be active players in the healing process, and work together to promote law enforcement credibility.