Vol. 16 No.1 (January 2006), pp.42-47
HATE CRIME, by Nathan Hall. Devon, UK and Portland, OR: Willan Publishing, 2005. 298pp. Hardback. £40.00/$59.95. ISBN: 1-84392-131-6. Paper £18.99/$29.50. ISBN: 1-84392-130-8.
Reviewed by Samuel T. Morison, Office of the Pardon Attorney, U.S. Department of Justice. E-mail: stm5 [at] georgetown.edu.
It is by now a truism that the politics of crime and punishment is easily overwhelmed by what might be called the pathology of anecdotal evidence, by which I mean the eagerness of legislators – aided and abetted by a twenty-four hour news cycle and their counterparts in the executive branch – to allow penal doctrine and policy to be driven by hasty causal judgments drawn on the basis of insufficient or misunderstood empirical data. While this piece of conventional wisdom admittedly takes on the aura of a self-fulfilling prophesy, there is little room for doubt that the occurrence of even a single shocking episode of criminal violence at the wrong time and place is capable of influencing the outcome of an election. As William Stuntz (2001) has thoughtfully argued, popularly elected officials of all ideological stripes thus have strong incentives to react decisively to such incidents, most often by placing increasingly harsh standards of punishment at the disposal of prosecutors, in an effort to inoculate themselves against any insinuation of being “soft on crime,” which apparently constitutes one of the mortal sins of modern democratic politics.
If this is an accurate depiction of the politics of crime generally, then it is especially true in the case of “hate crime” legislation, which is to an unusual degree susceptible to the anecdotal pathogen. To be sure, any morally decent person was moved by a sense of outrage when it was reported that three avowed white racists in Texas shackled a defenseless black man to the bumper of their truck with a chain and dragged him several miles to his death, or when a young gay man in Wyoming was savagely beaten, tied to a post, and left for dead by two men towards whom he allegedly had made a flirtatious overture, to cite two especially prominent examples of the phenomenon. But despite our understandable disgust at these sorts of crimes, they can hardly come as a complete surprise, since the occurrence of antisocial behavior prompted by spiteful motivations and myopic cultural prejudices – like its more virulent cousins, genocide and warfare – must be as old as the history of civilization itself. Nevertheless, such widely publicized outbursts of bigotry are nowadays met by urgent demands for the passage of stricter sentencing laws, without much thought being given to the true scope and dimensions of the problem or the unintended consequences of the putative solution.
From this perspective, Nathan Hall’s new monograph, HATE CRIME, a wide-ranging survey of the latest social science research on the subject from a predominately British perspective, is a refreshing exception to the partisan tone that is, unfortunately, all too common in [*43] the literature. Though Hall makes it clear that he remains, on balance, a supporter of contemporary efforts to combat the incidence of bias motivated crime (pp.237-38), he frankly acknowledges that “our apparently unquestioning efforts to combat hatred are in fact based on questionable [empirical] foundations” (p.xix) and are “fraught with moral and practical difficulties” (p.148). As a result, he says, we find ourselves in the position of “attempting to respond to a threat posed by an apparently growing social problem,” but without “a thorough consideration or understanding of exactly what we are trying to tackle” (p.233). He thus suggests – correctly in my view – that if we hope to mount an intellectually credible defense of hate crime legislation, then we must first grapple with a series of seemingly intractable conceptual, empirical and normative issues, which set the parameters within which the study proceeds (p.xvi).
To his credit, Hall pursues this bracing agenda in an accessible, undogmatic and critical style, which undoubtedly owes much to the pedagogical origins of the book. A professor of criminology at the University of Portsmouth, Hall explains that his decision to undertake the project was prompted by the persistent complaints of the students in his graduate seminar on hate crime about the lack of a suitable textbook on the subject (p.xii). Consistent with this purpose, he states that the material covered in the book is not intended to provide the reader with a definitive set of prescriptions, which do not in any event exist, but rather to “present the opposing viewpoints that . . . reflect the complexity of the hate crime ‘problem’ and the difficulties we face in determining our responses to it . . . so as to allow the reader to make up their own mind” (pp.xix-xx).
These pedagogical concerns likewise explain the ambitious scope of the book, which covers a broad array of relevant topics, including: the conceptual difficulties of defining prejudice and determining the appropriate scope of hate crime laws (pp.1-37); a brief historical survey of bias motivated violence (pp.38-54); the complexities of measuring the nature and social implications of hate crime victimization (pp.55-71); the largely neglected problem of understanding the sociological and psychological profile of hate crime offenders (pp.72-112); a comparative survey of the current state of legislative efforts to address the problem in the U.S. and England, including the theoretical and moral debate about, and the legal challenges to, the legitimacy of existing hate crime statutes (pp.113-49); and, finally, the challenges involved in the policing of hate crime, again in a comparative perspective (pp.150-232), which is Hall’s particular area of scholarly expertise.
Though I cannot in the space of this review discuss each of these complex issues in any detail, it will hopefully suffice to highlight two persistent themes that recur throughout the literature. Perhaps most importantly, there is the vexing threshold question of defining the phenomenon of hate crime in the first place. For example, Hall [*44] notes that in 2001, the population of the U.S. was nearly six times greater than the combined population of England and Wales, whereas according to official tallies, England and Wales experienced more than 12 times the number of racially motivated hate-crime incidents (though not necessarily prosecutable offenses) than the entire U.S. (p.18). The following year, the 43 police organizations in England and Wales recorded more than 31,000 racially motivated offenses – most of which involved an allegation of “harassment” – whereas more than 12,000 police organizations in the U.S. recorded only about 4,400 racially motivated offenses during the same time period (pp.57-59).
Something must be amiss here, since it cannot be plausibly maintained that Britain is a vastly more racist society than the U.S. Instead, one suspects that the glaring discrepancy in these figures reflects a difference in the definition of racial intolerance, at least for purposes of collecting official crime statistics. And so it is: in Britain, the definition of a hate crime incident is exceedingly flexible and depends largely on the subjective perception of the potential victim, such that “anyone can be a victim of hate crime if they believe themselves to be so” (p.11). In the U.S., by contrast, the comparatively meager nationwide statistics compiled by the FBI reflect both the specific categories of prejudice and types of offense delineated in the federal reporting statute (p.5). The empirical terrain is further complicated by the fact that state laws and reporting requirements also lack any semblance of uniformity, which means that “almost every U.S. state has a different legal definition of hate crime” (pp.5, 118-20). Nor is this simply a matter of bureaucratic incompetence, since Hall points out that there is no more agreement among scholars than there is among legislators and police officials about how hate crime is or should be defined (pp.1-4, 132-39).
Given the striking lack of academic and professional consensus on this fundamental issue, it is very difficult, and perhaps impossible, to get an accurate handle on the incidence of bias-motivated crimes across jurisdictional, much less national, boundaries. Hall therefore concludes that while we have good reasons to believe that prejudices of various sorts are a pervasive – and probably even a necessary – feature of normal psychological experience (pp.23-34), “when we talk about hate crime, we could be talking about a number of very different things depending on where we happen to be” (p.6). As a consequence, he states that we simply have “no idea how much hate crime there really is” (p.71).
This is a telling conclusion, because it suggests that the problem cuts deeper than a mere methodological difficulty with the collection of preexisting raw data. To the contrary, it implies that we tend to find the data we are looking for and that, ironically, any working conception of hate crime is liable to be as inescapably parochial as the assorted prejudices present to varying degrees in each of us, ultimately no more rationally justified than a preference for fish and chips and warm beer. But if this is true, then the distinction between the typical hate crime and its ordinary counterpart [*45] would appear to be an arbitrary construct, which arguably exposes the tenuous normative justification of the entire enterprise. This explains, I think, the sneaking suspicion among many civil libertarians that the movement has less to do with protecting vulnerable minority communities from actual harm than with the dubious use of criminal sanctions in, as Hall puts it, “a symbolic attempt to repair the damage of the past” (p.44).
Apart from the burden placed on freedom of expression, the critics argue, such a strategy is unlikely to succeed in any event. For as Andrew Sullivan (1999) has acutely observed, unless we were prepared to stipulate that the dominant social group (i.e., heterosexual white males) is excluded from the class of possible victims, then every crime is potentially a hate crime and “[a]ll we will have done is widened the search for possible bigotry, ratcheted up the sentences for everyone and filled the jails further.” In this regard, Hall reports that, according to the official FBI statistics, blacks are three times more likely to have committed a hate crime than whites (p.236), which we may safely assume was not the intended result.
In response, the advocates of hate crime legislation maintain that this sets the justificatory bar too high. In other words, even if there is no universally valid conception of hate crime that rationally compels the adoption of such a policy, the argument goes, it might still have sufficient democratic pedigree to constitute a legitimate response to certain forms of bigotry among the members of a political community. This is a fair point, to be sure, and if we confine the analysis to a single jurisdiction, it is certainly possible to carve out – by legal fiat if necessary – a sociologically distinct set of bias motivated offenses. As far as the U.S. is concerned, for example, Hall points out that the Supreme Court famously held in WISCONSIN v. MITCHELL (1993) that a statute that enhances the penalty for selecting the victim on the basis of his or her race does not impermissibly single out for harsher treatment the expression of officially disfavored ideas per se and therefore withstands scrutiny under the First Amendment (pp.140-43).
Even so, we would still have to confront the thorny question of why this type of conduct is deserving of more severe punishment than normal crimes. In sum, the justification for such differential treatment rests on the assertion that a hate motivated crime is worse, and hence deserving of more punishment, because it inflicts (or risks) greater social costs in terms of the psychological impact on victims and potential victims (pp.66-69, 132-34). Though Hall allows that this area of research is also empirically underdeveloped (p.66), the claim does have a strong intuitive appeal, and is arguably true whenever an offender acts with the specific intent to inflict serious emotional harm on a particular victim or to harass and intimidate an identifiable group of which the victim is a member. This explains the distinction between an ordinary act of vandalism and burning a cross on a black person’s front yard or painting a swastika on a synagogue. Nor would such a regime constitute a sharp departure from established Anglo-American [*46] practices, since it traditionally has been within the discretion of a sentencing judge to tailor the amount of deserved punishment, all morally relevant facts being considered, including that the defendant sought to victimize an especially vulnerable person or cause widespread fear.
The extent to which this rationale correlates seamlessly with group affiliation is a separate question, however. The basic problem with victim selection statutes of the sort approved in MITCHELL is that, by focusing on the group affiliation of the victim rather than the harm intended by the defendant, they are a singularly ineffective vehicle for isolating those crimes, and only those crimes, that genuinely deserve harsher treatment. Consider the following two cases. On the one hand, the defendant in MITCHELL was a young black man from Kenosha, Wisconsin, who was convicted of assaulting a randomly chosen a white person, with the result that his maximum sentence was increased substantially, from two to seven years imprisonment. But while the defendant’s motivation clearly brought his conduct within the literal terms of the statute, as Francis Kamm (1993) has argued, it strains credulity to believe that the victim was singled out because of his perceived membership in a despised and vulnerable group, and still less that a run-of-the-mill assault, however morally offensive, posed an in terrorem threat to the white majority in Wisconsin. Thus, apart from the symbolic value of castigating the defendant’s bad attitude, the social justification for more than tripling the range of his punitive exposure is not easily discernable.
On the other hand, it is quite easy to imagine a crime that is motivated by the crassest sort of racial bigotry, but that escapes the terms of the statute altogether. Suppose a white supremacist targets a white civil rights worker for a similar assault, not out of any racial animosity toward the victim herself, but to discourage her from dating a black man or participating in an inner-city voter registration campaign. Because the victim was not selected on the basis of her race, this offense would not constitute a hate crime under the statute approved in MITCHELL, notwithstanding the defendant’s transparently racist intentions and the potentially chilling effect of the crime. If it happened in Kenosha, all else equal, he would be facing the prospect of not more than two years in jail.
Whether this leaves the proverbial glass half full or half empty is a judgment about which reasonable minds may perhaps differ, but it is by no means clear that a legislative policy that mandates harsher punishment for the expression of obnoxious viewpoints, even if indirectly, will predictably lead to a more just and humane social order. The chief virtue of Hall’s book, I suggest, is that it forces us to reconsider the efficacy of invoking criminal sanctions in an effort to resolve such deep-seated cultural divisions.
Kamm, Francis M. 1993. “A Philosophical Inquiry into Penalty Enhancement.” 1992/1993 ANNUAL SURVEY OF AMERICAN LAW 629-36. [*47]
Stuntz, William J. 2001. “The Pathological Politics of Criminal Law.” 100 MICHIGAN LAW REVIEW 505-600.
Sullivan, Andrew. 1999. “What’s So Bad About Hate?” THE NEW YORK TIMES MAGAZINE, Sept. 26, 1999, 12 pgs., available at http://andrewsullivan.com/print.php?artnum=19990926 .
WISCONSIN v. MITCHELL, 508 U.S. 476 (1993).
© Copyright 2006 by the author, Samuel T. Morison. The views expressed in this review are the personal opinions of the author and do not represent the official position of the U.S. Department of Justice.