Criminal Justice Section  


Criminal Justice Magazine
Fall 2002
Volume 17 Issue 3

Unwarranted Assumptions in the Prosecution and Defense of Hate Crimes

By Lu-in Wang

A lthough at far from the level of intensity and prominence that it reached 10 years ago, the controversy over hate crimes legislation continues. In the early 1990s, debate centered on two main points of contention: whether such laws, which either criminalized traditionally racist acts or increased the punishment for other crimes when they were motivated by racial or ethnic bias, violated the First Amendment right to freedom of expression, and whether the laws were unwise and illegitimate because they seemed to provide greater protection against crime to minority groups and to emphasize, rather than obscure or obliterate, the racial divisions in our society.

The United States Supreme Court gave mixed answers to the former question, first striking down a municipal ordinance that banned cross burning as an unconstitutional content- and viewpoint-based restriction in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), and later upholding against First Amendment challenge a state law that enhanced the penalties for crimes motivated by bias in Wisconsin v. Mitchell, 508 U.S. 476 (1993). In reconciling its decisions, the Court in Mitchell drew a line between expression and criminal conduct "unprotected by the First Amendment," and, citing that distinction, most state courts faced with the issue have likewise affirmed the constitutionality of their penalty enhancement statutes. First Amendment questions linger, however, as the Supreme Court recently granted certiorari to consider the decision of the Supreme Court of Virginia striking down that state’s cross-burning statute. (Black v. Commonwealth, 553 S.E.2d 738 (Va. 2001), cert. granted sub nom. Virginia v. Black, ___ S. Ct. ___, 70 USLW 3719 (May 28, 2002).) Likewise, the latter set of questions remains open for debate, even as existing legislation continues to be enforced and new legislation is proposed. As the United States Congress takes up the perennial controversy over whether federal civil rights legislation should be expanded to reach crimes motivated by sexual orientation or gender, and as anti-Arab violence has become a matter of grave concern in the wake of 9/11, these fundamental questions warrant continued discussion and reflection.

While courts and politicians wrestle with these issues at a more abstract level, prosecutors and defense lawyers handling individual cases must contend with questions that implicate the same concerns and are no less important to the larger debate about the legitimacy and wisdom of treating hate crimes differently. Decisions made at the level of individual cases—from the decision whether to treat a case as a hate crime for purposes of investigation and prosecution to questions of trial strategy, such as how to tell the story of the crime or to portray the defendant and victim—have a wide impact, because those decisions influence both society’s perception of what a hate crime "is" and our broader understanding of the fundamental social problem underlying the phenomenon of hate crime.

These case-specific decisions, though more particularized and practical, are often based on the same assumptions and value judgments that are more prominently aired in the wider debate. In this article, I suggest that uncritical acceptance of these assumptions presents a significant and far from theoretical problem in the prosecution and defense of hate crimes, for the assumptions paint a distorted and overly narrow picture of such crimes that can lead prosecutors to overlook cases that warrant penalty enhancement, promote the use of unproductive, socially harmful, and potentially unconstitutional trial strategies, and invite acquittals on illegitimate grounds.

Overview of hate crimes laws

A range of laws, some over a century old, can be used to prosecute hate crimes. (For a comprehensive discussion of the federal and state statutes, see Lu-in Wang, Hate Crimes Law (WestGroup 1994, updated through 2000).) The federal government, as well as some states, prosecutes hate crime primarily under civil rights statutes, an approach that dates back to the post-Civil War Reconstruction Era. The six major federal criminal statutes are 18 U.S.C. §§ 241, 242, 245, 247, and 248, and 42 U.S.C. § 3631, and several states have enacted civil rights legislation following the federal model. The key element under civil rights laws is that the defendant intended to intimidate the victim in or to interfere with the free exercise of rights under the Constitution or laws of the United States or the particular state; these statutes may or may not also require that the defendant acted because of the victim’s race or other protected status.

Other statutes, such as the Virginia statute before the Supreme Court, prohibit acts that historically have been associated with racial, religious, and ethnic hostility and that typically are intended to induce or have the effect of inducing fears of persecution, particularly (though not exclusively) in members of minority groups. These practices traditionally have been employed by white supremacist groups such as the Ku Klux Klan and include cross burning, mask and hood wearing, and defacing churches, synagogues, and other institutional property, such as monuments, memorials, or cemeteries, that is associated with or significant to particular groups.

Penalty enhancement legislation, the newest and most controversial approach, applies most broadly and is likely to be used in hate crime cases involving harassment, intimidation, or assault. This approach has been adopted by more than half of the states. (It also can apply to federal crimes through section 3A1.1(b) of the United States Sentencing Guidelines.) Following model "intimidation" legislation drafted by the Anti-Defamation League of B’nai B’rith in 1981, the core concept of these laws is to punish an already-defined crime more heavily where commission of that crime was motivated by bias based on race, religion, national origin, or other specified characteristics of the victim or another person. Accordingly, most state statutes read similarly to the model statute, which provides: "A person commits the crime of intimidation if, by reason of the actual or perceived race, color, religion, national origin or sexual orientation of another individual or group of individuals, he violates [a particular section of] the Penal Code." (Anti-Defamation League, Hate Crimes Laws: A Comprehensive Guide 2 (1994).) The greatest variation among state statutes is in the particular crimes and protected groups they enumerate. The latter feature has engendered some of the most acrimonious debates within state legislatures; although inclusion of race, ethnicity, national origin, and religion have not been controversial, a number of state legislatures have reached an impasse on the questions of whether to include gender and sexual orientation.

Three key assumptions about hate crimes

A controversy that today seldom makes its way into the publicized debates—possibly because supporters and opponents of bias crime legislation frequently share a common understanding of the crime, if not a common view of what to do about it—is the question of what constitutes a hate or bias crime. This question is exceedingly important, for it defines our perception of the social problem represented by hate crime. This conception, in turn, influences thinking on all of the "big" issues, including how we identify the law and policy issues the problem raises and define the terms in which those issues should be debated. Yet this question often falls to law enforcement, the prosecution, and the defense to dispute and determine, for it is implicated in decisions concerning how cases are prosecuted and defended, albeit often in ways that are not noticed because the question is subsumed into matters of trial strategy and choice of narrative.

The shared, conventional understanding of hate crime reflects the influence of the "prototype" for such cases. Based upon features of some of the most dramatic and well-publicized cases, such as the brutal killings of Vincent Chin, James Byrd, Jr., and Matthew Shepard, the prototypical hate crime case comprises the following features:

[T]he perpetrator and victim are strangers. The perpetrator selects the victim not because of any personal hostility between them or because the victim’s own conduct has provoked an attack, but solely because the perpetrator sees the individual victim as a "fungible" or an "interchangeable" representative of a racial or social group that the perpetrator hates. The perpetrator commonly utters derogatory group-based epithets before, during, or after the crime, but whether or not he verbally demonstrates his hostility, the criminal act itself is typically characterized by extreme, gratuitous violence or the destruction of property. The personal injury or property damage inflicted, as well as the fear that his acts create, appear to be the perpetrator’s main objectives, for, in prototypical cases, nothing of value is taken. While one-on-one and group-on-group crimes could fit the pattern, the prototypical crime more commonly is committed by multiple perpetrators on a single victim.

(Lu-in Wang, The Complexities of "Hate," 60 Ohio St. L.J. 799, 802–03 (1999) (footnotes omitted).)

Consistent with this central image, three major assumptions are evident at all levels of discussion of hate crime, from high profile legal and political debates to day-to-day decision making in individual cases. In all of these contexts, moreover, the assumptions are shared by both of the opposing sides. The three assumptions are interrelated, but can be itemized as follows:

• Perpetrators act to further their personal hostility toward the victim’s social group. They are motivated by their own negative opinions or attitudes toward the targeted social group, rather than by the opinions or attitudes of others.

• Perpetrators are freaks or lunatics at the fringe of society. Their biases are deviant and irrational; their feelings toward the target group are not shared by members of mainstream society, nor do their actions make logical sense.

• The perpetrators’ biases are so irrational that they are driven to commit crimes for no other reason than to inflict harm on a member of the target group, and not for some other, more easily understandable reason, such as a desire to obtain personal gain.

(For more extensive discussion of these assumptions, see id. at 815–30.)

Proponents and critics of bias crime legislation rely on these assumptions in arguing the legitimacy, efficacy, and constitutionality of the laws. The arguments of critics more patently incorporate the assumptions, given their close connection with the First Amendment issues. The assumptions support the idea that penalty-enhancement laws punish thoughts or beliefs, for critics contend that, except for being politically unpopular, the bias that motivates hate crime perpetrators is no different from any of the constitutionally protected attitudes, feelings, or philosophies that we all have, and that hate crimes legislation starts us down the "slippery slope" to outlawing the expression of all manner of unpopular opinions. (The seminal article raising these concerns is Susan Gellman, Sticks and Stones Can Put You in Jail, but Can Words Increase Your Sentence? Constitutional and Policy Dilemmas of Ethnic Intimidation Laws, 39 U.C.L.A. L. Rev. 333 (1991).) Critics also invoke the assumptions when they argue that hate crime laws simply won’t "work," for punishment cannot force criminals to change their views and that, besides, perpetrators are so antisocial and unreasonable that they cannot be chastened or deterred. The assumption that perpetrators are social misfits further supports the view that the problem of hate crime does not warrant special legislation because true hate crimes are exceedingly rare, being committed by only a "small number of deviant bigots." (James B. Jacobs & Kimberly Potter, Hate Crimes: Criminal Law & Identity Politics 7–8 (1998).)

Supporters, too, rely on the three assumptions, though obviously they see their implications quite differently. For some supporters of penalty enhancement, the assumption that perpetrators acted out of personal animus, rather than in response to external forces or from a desire to obtain some material benefit, makes them morally worse and more culpable criminals. Moreover, the perpetrator’s assumed hostility, deviance, and irrationality are offered as justifications for enhanced punishment, because crimes motivated by these impulses are believed to inflict greater psychic and social harms on the victim, the victim’s social group, and the community at large. The assumptions also support the view that bias crime legislation is needed to send the message that society condemns the perpetrator’s bigotry and hatred. (For the major arguments in support of bias crimes legislation, see Frederick M. Lawrence, Punishing Hate: Bias Crimes Under American Law (1999).)

In addition to influencing the political debate, the three assumptions work their way into law enforcement officials’ and attorneys’ decision-making and trial strategy. At the initial stages, law enforcement professionals must determine which cases qualify for treatment as bias crimes. Typically, officers apply a very narrow definition, whether based on their own assumptions or direct guidance or perceived pressure from the prosecutor’s office to pursue only those cases that seem clearly "winnable." They tend to pursue only paradigmatic or prototypical cases involving extreme brutality or sensational facts, while excluding cases that are less dramatic or involve mixed motives. For example, a case in which the defendant uttered racist epithets while committing a robbery may not be investigated as a hate crime because the defendant does not appear to have been motivated by racial animus alone. (For further discussion and examples, see Wang, The Complexities of "Hate," supra, at 814–15 and 825–29.)

The bias motive is especially likely to be overlooked when the defendant seems to have been acting in a calculating or "rational" manner by selecting the victim from a particular group. The view that a "true" bias crime perpetrator acts for no other reason than to further his or her own irrational hatred of the target group may exclude what appear to be crimes of "discriminatory selection," in which a member of a particular group is targeted for robbery not because of the perpetrator’s hostility toward the victim’s group but because that group is viewed as "easier" to rob because of some perceived vulnerability. (For further elaboration of the "discriminatory selection" model, as contrasted with the "racial animus" model of bias crime, see Lawrence, supra, at 29–39; Wang, The Complexities of "Hate," supra, at 808–15.) The Second Circuit alluded to this assumption in a footnote in its recent opinion in United States v. Nelson, 277 F.3d 164 (2d Cir. 2002). In discussing the bias element in 18 U.S.C. § 245(b)(2)(B), a civil rights statute, the court stated, "Not all attacks ‘because’ a victim is black are, however, racially motivated in the relevant sense. Thus a racially indifferent attacker (one who gets his kicks from assaulting victims regardless of race) might nonetheless pursue exclusively black victims in the belief that the police will be less likely to seek out or prosecute those who commit violent acts against blacks." ( Id. at 188, n.21. But cf. People v. McCall, 2001 Cal. App. LEXIS 1879, *10–*11 (Cal. Ct. App. 2001) (unpublished decision; text in LEXIS) (pointing out that a range of motivations might lead a defendant to discriminate in the selection of a victim and that "hatred or animus may or may not be a component and is not an essential element of the offense"). It should be noted that a small number of state bias crime statutes do explicitly include "animus" as an element of the offense, see Wang, Hate Crimes Laws, supra, at 10–23, n.5. However, as is illustrated by research into the motivations for even "prototypical" hate crimes, discussed below, that term need not be understood so narrowly as to encompass only the defendant’s personal feelings.) Similarly, robberies targeting Asian immigrants or gay men often are not considered bias crimes when the defendant is understood as having selected the victim because members of those groups are viewed as both likely to have a lot of cash on hand and unlikely to report the crime to police or to obtain assistance from them.

At trial, prosecution and defense strategies often reflect the three assumptions as well. For example, in accordance with the assumption that the defendant acted out of his or her personal hatred of the targeted group, prosecutors often try to portray the perpetrator as someone who does not "like" persons of the victim’s group. In their book criticizing bias crime legislation, James B. Jacobs and Kimberly Potter derided one such attempt, in which the white, male defendant fought a charge of ethnic intimidation by taking the stand "to proclaim that he was not racist." On cross-examination, the prosecutor sought to rebut this claim by revealing, inter alia, that the defendant did not know the first name of, had never gone out to dinner with, had never had a beer with, had never gone to a movie with, and had never invited to a picnic or the creek his neighbor, a 65-year-old black woman. The prosecutor also asked the defendant to name "one [black] person, just one who was a really good friend of [his]." (Jacobs & Potter, supra, at 106–07.)

On a more troubling level, the assumption that the defendant acts to further his or her hostility against the targeted group also invites the prosecution to present evidence that raises serious First Amendment concerns. The most common evidence of bias motive is the defendant’s own words, for in many cases perpetrators utter racial or other derogatory, group-based slurs before, during, or after the crime. The Supreme Court has stated that the First Amendment is not violated when a defendant’s speech is used to prove the elements of a crime or to establish motive or intent. ( See Wisconsin v. Mitchell, 508 U.S. at 489–90.) However, prosecutors have not stopped at evidence of the defendant’s statements made in direct connection with the crime charged. It has become increasingly common for the prosecution to introduce evidence of defendants’ general racist philosophies or interest in racist organizations and even of defendants’ possession of racist tattoos, clothing, and literature. Although courts have warned that such evidence may be used only when a tight nexus exists between the proffered evidence and the offense charged, this practice skirts dangerously close to punishing the defendant for holding, or even exploring, unpopular views. (For a critic’s view of the dangers inherent in such an approach, see Gellman, Sticks and Stones, supra, at 358–62.)

Defense attorneys also play upon the three assumptions. When the investigation and charging process have failed to weed out such a case, see discussion supra, one defense strategy is to portray the crime as one of logic or calculation, rather than group-based hostility. Thus, the defense might argue that the defendant targeted the gay victim for robbery not because the defendant hates gays, but because gay men make "easy targets": They are expected to carry a lot of cash and to be reluctant to report crimes against them for fear of "outing" themselves to police and others. This strategy can be very effective, because it presents the defendant’s actions as being logical and understandable: He or she was acting merely as one would expect a rational criminal to act, and not as a hate-crazed (i.e. , "real") bias crime perpetrator.

Similarly, playing off of the assumption that "real" hate crime perpetrators are social deviants, another approach is to emphasize the "averageness" of the defendant. In cases involving antigay violence, for example, a common defense strategy is to portray the defendant as a person whose "actions are neither serious nor unusual," and to present evidence of the defendant’s "‘good family background,’ exemplary behavior in school, and participation in organized athletics." (Gary David Comstock, Violence Against Lesbians and Gay Men 82, 92 (1990).)

Finally, another defense strategy designed to make the defendant’s actions appear understandable, and even acceptable, is to exploit invidious stereotypes of the victim’s group. The defense might, for example, try to justify the defendant’s violence against a gay victim by arguing that the victim made sexual overtures to the defendant or was otherwise behaving inappropriately. (It is interesting to note the similarity between this line of defense and the common practice during this country’s "lynching era" of inciting white mobs to racial violence by alleging—most often falsely—that the black, male victim had raped, terrorized, or insulted a white woman or girl. See Stewart E. Tolnay & E.M. Beck, A Festival of Violence: An Analysis of Southern Lynchings, 1882–1930, at 46–49 (1995).)

The three assumptions debunked

Not only do the conventional assumptions invite silly, distasteful, socially harmful, and potentially unconstitutional trial strategies, they also do damage on a larger scale because they distort our general understanding of hate crimes—even, it turns out, of prototypical hate crimes. In doing so, they enable us to overlook the ways in which the social environment contributes to the continuing vulnerability of certain groups, by marking them as "suitable victims" of such crimes and enabling perpetrators to use violence against them to obtain a variety of goals, including mundane objectives common to the most petty of crimes.

Many cases of hate crime, even those that conform most closely to the prototype, do not conform to the three assumptions. In an earlier article, I examined social scientists’ research into the motivations for two crimes that match, feature by feature, the prototype for hate crime: antiblack violence during this country’s infamous lynching era (the years between 1880–1930) and contemporary antigay violence. ( See Wang, The Complexities of "Hate," supra.) What that research shows is that, far from being deviant, irrational acts driven by the perpetrators’ personal hostility toward the victim’s group, such crimes often are "rational" and opportunistic, as perpetrators seek to obtain psychological, social, and even material rewards by exploiting a societal view that members of the target group are "suitable" or acceptable targets for violence.

In turn, the perpetration of hate crimes continues the social and cultural "feedback loop" that perpetuates and reinforces the suitable victim designation. Social scientists have explained that bias-motivated violence against particular groups creates the conditions for prejudice and discrimination because it defines the "safe" or "expected" targets for violence and other forms of ill treatment. Observers recognize the pattern that such violence follows, and the social context surrounding those acts makes them "possible and even acceptable." (Iris Marion Young, Justice and the Politics of Difference 61 (1990); see also Andrew E. Taslitz, Condemning the Racist Personality: Why the Critics of Hate Crimes Legislation Are Wrong, 40 B.C. L. Rev. 739, 758–65 (1999) (discussing ways in which hate crimes contribute to a racist culture and raise the risk of similar future harms); Lu-in Wang, The Transforming Power of "Hate": Social Cognition Theory and the Harms of Bias-Related Crime, 71 S. Cal. L. Rev. 47 (1997) (discussing psychological and social effects of hate crimes).)

For example, a series of highly regarded, sophisticated, quantitative studies of historical data from the lynching era shows that racial violence often was used in the cotton-growing areas of the South as an instrument for maintaining white control over land and labor in the years following Emancipation, when African Americans gained a measure of freedom and economic progress, white landowners and laborers lost both their property rights in slaves and their complete control over land, and the cotton market weakened. (These studies are collected in Tolnay & Beck, supra; they also are discussed in Wang, The Complexities of "Hate," supra, at 832–67.) The studies show that, not only were perpetrators primarily focused on the economic benefits that might be derived from racial violence, but they also controlled their use of it as suited their interests, escalating the violence when and where it would help them control land and labor, but moderating or even abandoning it when and where it was either not necessary or even harmful to those interests.

By no means do the researchers contend that lynching had nothing to do with racial prejudice; indeed, a racially hostile climate was important to the ability of perpetrators to reap gains from violence against blacks. However, what they do point out is that an individual perpetrator did not need to hate blacks in order to have a reason to lynch: "Given the Deep South’s racial caste structure, whites could harass and assault blacks with virtual impunity. Blacks were considered legitimate, and even deserving, objects for white wrath." (E.M. Beck & Stewart E. Tolnay, The Killing Fields of the Deep South: The Market for Cotton and the Lynching of Blacks, 1882–1930, 55 Am. Soc. Rev. 526, 537 (1990).) In other words, perpetrators could count on obtaining benefits from racial violence because blacks had been socially identified as "suitable targets" for such violence. Contrary to the assumption that hostility can be separated from more self-interested reasons for targeting a particular group, these researchers show that animus and opportunism can be bound together by a perpetrator’s willingness to exploit the social vulnerabilities of that group.

Opportunistic targeting is no less a factor in contemporary hate crimes. In particular, antigay violence often is driven not so much by the perpetrators’ own hostility toward gay men and lesbians as by the rewards it can bring—rewards of psychological, social, and even material value. Some perpetrators (especially young males) commit "gay bashing" in groups and view it as a kind of "sport." Some young men who have participated in this activity have explained that they did so not out of hostility toward gays but because it was exciting, it drew them closer to other members of the group, and it brought the group the respect and recognition of their peers. These young men exploit the idea that gay men are "suitable" targets for such violence—a view that is reinforced when their peers laud them and authority figures (including parents, teachers, law enforcement officers, and judges) dismiss their antics as "boys being boys."

More explicitly calculating perpetrators target gay men for property crimes, including robbery, blackmail, and the "shakedown," crimes in which the perpetrator uses threats, violence, and often the possibility of "outing" the victim in order to extract money or other property from him. These perpetrators have explained that they, too, take advantage of society’s disregard for gay men, for they count on the victims to comply out of fear of having their sexual orientation revealed and on police, judges, and juries to minimize or overlook crimes against gays. (For a particularly chilling look into the thought processes behind such crimes, see Licensed to Kill (Arthur Dong/DeepFocus Productions 1997), a documentary film containing interviews with convicted killers of gay men.)


As the Court of Appeal of California has stated, the term "hate crime" is "actually a misnomer," because "bias offenders will often commit the crimes for excitement or to achieve feelings of domination or superiority and target victims they perceive as weak or vulnerable; hatred or animus may or may not be a component[.]" ( McCall, 2001 Cal. App. LEXIS at *11.) Certainly it is important for courts to recognize that the forces that propel hate crimes are more complicated than the one dimensional, conventional view suggests. However, as the actors who determine more directly how a particular case is conceived and plays out in court, prosecutors and defense attorneys also must incorporate a broader and more nuanced understanding of bias crimes into their handling of individual cases.

Certainly prosecutors, who make charging decisions and thereby both determine how a case is labeled for trial and, through that power, influence how law enforcement officers proceed at the earlier stages of investigation, should be aware of the complex motivations that contribute to bias crimes and be less quick to exclude from consideration cases in which the defendant appears to have been acting from motivations in addition to or other than "pure" animus. This broader understanding ought also to encourage prosecutors to present a more contextually anchored view of the case at trial. For example, the prosecution might examine the circumstances surrounding the crime to show how, in that situation, defendants could gain psychological, social, or material rewards from targeting a member of the victim’s social group, whether through the reactions they calculated their crime would evoke or, conversely, the ease with which they thought they would "get away with it." In other words, the prosecution should seek to avoid the fruitless spectacle of badgering defendants about who their friends are, as well as the more dangerous prospect of convicting defendants because of the ideas they have explored, by trying instead to show that the defendants sought, through their crime, to exploit a social context in which particular groups have been marked as expected or suitable targets for violence.

By more fully elaborating the ways in which the defendant’s crime played upon the social vulnerability of the targeted group, the prosecution may be able to head off or combat a defense attempt to justify the defendant’s actions by exploiting malicious stereotypes of the victim’s group. Defense attorneys themselves should be reminded that, although they owe a duty to their clients to mount a vigorous defense, they also have an ethical responsibility to refrain from tactics that play upon group-based stereotypes and further contribute to the social environment that makes hate crimes "possible and even acceptable." (Young, supra. See Model Rules of Professional Conduct Rule 8.4(d) and cmt. [2] (stating, in part, "A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice.").)

Legal advocates on both sides of a hate crime case should recognize the role their advocacy plays within the larger public dialogue concerning such crimes. Rather than being (mis)guided by unquestioning acceptance of the three conventional assumptions, that dialogue should recognize the converse social realities: "that the perpetrators’ bias is socially reinforced, and not simply personal; that the perpetrators’ acts are not uncommon and often are rational; and that perpetrators often are able to obtain—and frequently are motivated at least in part by the desire to obtain—material rewards or other personal benefits." (Wang, The Complexities of "Hate," supra, at 817 (emphasis in original).)

Lu-in Wang is an associate professor of law at the University of Pittsburgh School of Law. She writes in the areas of hate crimes and discrimination law, applying insights from the social sciences to illuminate the dynamics of race- and other group-based discrimination.

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