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Carolyn Turpin-Petrosino is Professor of Criminal Justice in the College of Humanities and Social Sciences at Bridgewater State University. She served on the Massachusetts Juvenile Justice Advisory Council during the Romney Administration. As a result of her research and writings on hate crime, she was invited to Capitol Hill in 2002 to participate in a Congressional Briefing on the state of hate crime research and public policy in the United States. She recently co-authored a book, American Corrections , now in its second edition. In addi - tion, she has published several articles and book chapters on hate crimes in the areas of the history of hate crime in the United States, affiliation dynamics and recruitment practices of hate groups, and the nature and scope of anti-Black hate crimes. Her next project focuses on communities, collective efficacy, and com - munity response to hate crimes.Downloaded by [University of Defence] at 01:44 24 May 2016 Turpin-Petrosino challenges us to engage with some of the fundamental questions associated with hate crimes, and to think more critically about their nature, cau - sation, and implications. Written accessibly and authoritatively throughout, this text underlines the importance of seeing hate crime as a human problem which requires interventions beyond simply the immediate or the obvious. Neil Chakraborti, Director of the Leicester Centre for Hate Studies, University of Leicester, UK In the last two decades or so hate crime has become a significant global cause for concern. Drawing upon her own vast experience and expertise in the area, Carolyn Turpin-Petrosino has written a fascinating and accessible book that offers a comprehensive and wide-ranging overview of the complex field of hate crime.

She offers insightful analysis of not just the harmful effects of hate, but also of the motivations and profiles of offenders, both from a US and international per - spective. I’ve no doubt Understanding Hate Crimes will become a key texts for academics, students, and practitioners. Jon Garland, Reader in Criminology, University of Surrey, UK Thoughtful, well-written, and broad in scope, this book provides a strong over - view of hate crime. Researchers and students in a variety of disciplines will find this text enlightening and accessible. Professor Turpin-Petrosino brings a fresh perspective to a topic still badly in need of more study. Phyllis B. Gerstenfeld, J.D., Ph.D., California State University, Stanislaus, USADownloaded by [University of Defence] at 01:44 24 May 2016 Understanding Hate Crimes Acts, motives, offenders, victims, and justice Carolyn Turpin-PetrosinoDownloaded by [University of Defence] at 01:44 24 May 2016 First published 2015by Routledge711 Third Avenue, New York, NY 10017 and by Routledge2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Routledge is an imprint of the Taylor & Francis Group, an informa business © 2015 Carolyn Turpin-Petrosino The right of Carolyn Turpin-Petrosino to be identified as author of this work has been asserted by her in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988.

All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers.

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British Library Cataloguing-in-Publication DataA catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication DataPetrosino, CarolynUnderstanding hate crimes: acts, motives, offenders, victims, and justice / Carolyn Petrosino.—1 Edition.pages cm1. Hate crimes—United States. 2. Violence—Psychological aspects. 3. Criminal psychology—United States. I. Title. HV6773.52.P487 2015364.150973—dc232014036287 ISBN: 978-0-415-48400-8 (hbk)ISBN: 978-0-415-48401-5 (pbk)ISBN: 978-0-203-88369-3 (ebk) Typeset in Times New Romanby Swales & Willis Ltd, Exeter, Devon, UKDownloaded by [University of Defence] at 01:44 24 May 2016 Contents List of figures vi List of tables vii Foreword viii Preface ix Acknowledgments xi 1 Introduction: an overview 1 2 A history of hate in the United States 30 3 The evolution toward modern hate crime laws 51 4 The criminology of hate crime 77 5 Perpetrators: what do we know about them? 103 6 Victims: who are they? 136 7 Criminal justice system responses 170 8 International perspectives 191 9 The future of hate crimes 220 Index 231Downloaded by [University of Defence] at 01:44 24 May 2016 Figures 2.1 Distribution of military experience in post-9/11 White supremacist extremism 40 5.1 Hate crime perpetrators are not alien species 129 6.1 Victim perceptions of offender bias in hate crime, 2003–06 and 2007–11 138 6.2 Religious bias hate crime 2011 156 6.3 Violent crime of disabled versus non-disabled persons 2011 160 6.4 Anti-disability hate crimes by disability type 2010 161Downloaded by [University of Defence] at 01:44 24 May 2016 Tables 1.1 Hate crimes statistics 2008: incidents, offenses, victims, and known offenders by bias motivation 18 1.2 NIBRS data (1995–2000): number of incidents by location and bias motivation 19 4.1 Allport’s scale of prejudice 79 5.1 Education/occupation of past and present leaders in the United States hate movement 108 6.1 Reported anti-Black motivated incidents 2000–10 139 6.2 Reported anti-Asian/Pacific Islander motivated incidents 2000–10 144 6.3 Anti-Hispanic incident rates 147 6.4 Anti-Hispanic incident rates in Arizona 150 6.5 Sexual orientation hate crimes 151 6.6 Anti-Jewish and anti-Islamic incidents 155 8.1 Trends in racial violence and anti-Semitism in France since 2008 200 8.2 Hate crimes in the OSCE region: police reports, prosecutions, and convictions in 2009, 2010, and 2011 209Downloaded by [University of Defence] at 01:44 24 May 2016 Foreword It is often said that racism “is as American as apple pie.” But that is an insipid met - aphor because it disrespects a dark history of how White Europeans conquered North America by devastating the native population and how they then built their new nation’s economy on the backs of kidnapped Africans who had been turned into chattel slaves. In perhaps the most poetic Presidential inaugural speech of all time, on March 4, 1865, Abraham Lincoln wondered aloud why God saw fit to send the slaughter of the Civil War to the United States. His conclusion: that slavery was a kind of original sin for the United States, and all Americans had to do penance for it. Nineteen days later, Lincoln was killed by the racist John Wilkes Booth. One hundred and fifty years have passed since Lincoln’s assassination and his admonition for penance is all but forgotten. From the White House and Congress to the federal courts and corporate boardrooms, racism is seldom discussed. What has not changed, however, is the pervasive character of racism in American crime and violence. Few criminologists pay attention to this problem. Yet according to the FBI, 5,800 hate crimes are committed each year in the United States. Sixteen hate crimes occur each day; one hate crime is committed every ninety minutes.

Barack Obama, the nation’s first African-American President, is the target of some thirty assassination threats a day. Still, criminologists ignore this dangerous form of criminality. Thankfully, Carolyn Turpin-Petrosino has our pedagogical back. Herein lays a comprehensive review of the hate crime phenomenon covering its historical breadth, its structural correlates, its perpetrators, and its victims. This book will not only sound an alarm in college classrooms across the country, it may well inspire a generation of students to do their part in seeking penance for our nation’s original sin. Mark S. HammDownloaded by [University of Defence] at 01:44 24 May 2016 Preface Teaching a course on hate crime is no easy task. Personally, I don’t think it should be. The subject itself is disturbing on many levels. But many subjects in criminol - ogy, such as homicide, terrorism, and sex crimes, are disturbing. Hate crimes, however, are particularly harmful because they are designed to not only injure the direct victim, but to send a message to the group the victim represents. The questions that a course on hate crime must tackle are equally disturbing. How is it that the possession of a certain social or biological characteristic such as race or disability becomes condemnatory? How is it that some people come to vilify other members of the human family, not because of personal experience and factual data, but because of flawed and destructive ideologies they hold onto out of fear and ignorance? But teaching such a course is invaluable for students and instruc - tors alike, as hate crimes serve as a barometer on the state of social relationships in an increasingly multicultural world, and contributes to discussions about social justice and egalitarianism. Instructors of hate crime courses are often challenged when teaching to facili - tate student understanding of the nature of these crimes, and all of the larger soci - etal issues that these offenses reflect. When I taught a hate crimes course in 1995, there were few published works on the subject, and even fewer extensive single source writings. I spent a lot of time searching for course materials that would adequately address the myriad complexities of hate crime. Subsequently, I accu - mulated disparate writings that had to be structured into a coherent framework for my students. That experience serves as my primary motivation for writing this book. I wanted to write a comprehensive introductory text for instructors and students that covers the major aspects of hate crime. The text, therefore, not only covers the who, what, where, and why of hate crime, but it also includes the history, legal background, criminology, and official statistics relevant to these offenses. A second motivation for the book was to emphasize the very human nature of hate crimes. It is sometimes too easy for researchers to speak of crime, crimi - nals, and victims as a collection of statistics, theories, study findings, and policies.

Although it is important to examine crime using rigorous social science methods, it is equally vital to not lose sight of hate crime as a human problem; with human actors, human offenders, human victims, and consequently, human sufferings. Downloaded by [University of Defence] at 01:44 24 May 2016 x Preface I hope this text adequately conveys the human side of hate crime and that readers see themselves in both the perpetrators and the victims of hate crime. There are at least three themes that reverberate throughout most of the book’s nine chapters: (1) that the hate crime perpetrator is quite ordinary ; (2) that the major ideology driving hate crime is the “us versus them” worldview and; (3) that the control and prevention of hate crime rests in addressing its obvious cause—bigotry. Understandably, we often view perpetrators of hate crime, or any violent crime, as an aberration, as individuals who are very different from the average, law-abiding citizen. But in reality, ordinary law-abiding persons have a lot more in common with hate crime perpetrators than they would dare to suspect. How?

We are all subject to various prejudices and bigoted notions. The difference is that the hate crime perpetrator acts upon these notions. But the underlying “motiva - tion” or driving force for the hate crime perpetrator may not be that different from the ordinary person’s sexist, anti-Semitic, or racist beliefs. Chapter 8 International perspectives demonstrates that this strong inclination towards constructing an “us versus them” world view is not just an American phenomenon. I deliberately chose the examples of bigoted and hate-motivated acts highlighted in Chapter 8 to show how remarkably commonplace this margin - alization of the other is, even in societies with vastly different cultures, customs, and traditions. The last theme, which addresses how to counter hate crime, is covered in several chapters, including Chapter 5 (Perpetrators: what do we know about them?), Chapter 6 (Victims: who are they?) , and the aforementioned Chapter 8 . What readers should recognize from these chapters are universal motivations that prompt hate crime: prejudice, fear, insecurity, ignorance, and a sense of entitle - ment. If these factors are the primary motivations which also transcend differ - ences in gender, class, race, nationality, and culture, then the strategies to address hate crime must focus on these motivations. In the book, I highlight some of these strategies, including education, community-based initiatives, coalition building, and the exercise of political courage by elected officials. Finally, I frequently conclude my classes by challenging students to now make a difference; which is the obligation of those privileged to an education. I empha - size the challenge to consciously reject the tendency, sometimes ingrained in all of us, to see the world through the “us versus them” lens, but to endeavor to seek and recognize the commonalities across peoples and cultures. I hope this book will encourage readers to learn from our persistent social shortcomings, and to determine to bridge differences with understanding.Downloaded by [University of Defence] at 01:44 24 May 2016 Acknowledgements For the students who continue to enroll in my hate crimes classes—thank you for the questions, comments, and insights that you’ve provided overall the last twenty years. Keep them coming! I want to thank my husband Tony for his relentless encouragement during these several years. He tolerated my absences as I stole time away to write. He also acted as a sounding board for my rhetorical questions and entertained my many “a-ha!” moments throughout the writing process. You are my biggest sup - porter and I appreciate you more than you know! To my amazing children, Erica and Elliot; I am inspired to write this book for you both. It is my ardent prayer that the world in which you will raise your children will become more self-aware and more loving day by day. Finally, I most hope that this book honors the legacy of my parents. They lived in a world that sought to remind them daily and in various ways that they were somehow less competent and less deserving because of their brown complexion.

Despite what they encountered, they showed my siblings and I who we really were, our true value, that we were full of raw talent and intelligence, and had unlimited potential. We each understood our value and maintained our dignity and pride in ourselves as African-Americans. How did that happen at the time when the United States was still under its own apartheid system? My parents demonstrated what it was to be a warrior against these injustices without shouting or raising clenched fists. They determined to just “be.” They were spiritual giants of strength, grace, and truth. Thank you, Ben and Erie Turpin. Carolyn Turpin-PetrosinoDownloaded by [University of Defence] at 01:44 24 May 2016 This page intentionally left blankDownloaded by [University of Defence] at 01:44 24 May 2016 1 Introduction An overview Crime is a staple of the news. The public is fed a daily diet of assorted illicit acts such as a corrupt official engaging in conspiracy and extortion, a domestic violence incident that leaves the victim in a coma and children in foster care, or a home invasion where criminals suddenly break into a residence, terrorize and then rob the owners, or worse. What of the OxyContin trafficking ring which has successfully eluded police despite breaking into multiple area drug store chains?

From incidents of road rage to warring rival gangs, the public is inundated with crime stories. All crime requires proper attention, clear understanding, and effective responses from the criminal justice system and that is no less true when it comes to hate crime. Over the last twenty-five years, hate incidents and hate crimes have repeatedly come to the attention of the public. Some see these types of crime as no more serious than the next, while others argue that hate crime, unabated, threatens our very democracy. But what exactly is the nature of hate crime? How is hate crime different from other crimes and how is it defined by law? Does geographical location impact the nature or meaning of a hate crime act? Do hate crime laws as a whole differ from civil rights laws or do they basically address the same unlawful behavior? When hate speech transpires, does that mean that a hate crime has occurred? How trustworthy are hate crime statistics? In reality, there are countless questions about the nature and attributes of hate crime. As such, it would take a series of monographs to adequately address these and other questions. This chapter humbly addresses the fundamental aspects of hate crime.

The objective here is to inform the reader and to clarify commonly misunderstood perceptions of these crimes.

What is hate crime?

On November 18, 2008, a young woman went to enter a convenience store in Worcester, Massachusetts, to pick up a few items while her boyfriend waited in the car. Normally such mundane tasks occur speedily and without incident; this time would be different. Suddenly, two men violently confronted her, spewing racial epithets, slurs, and began to physically assault her. The ferocity of the attack was such that witnesses inside the convenience store believed the young woman’s Downloaded by [University of Defence] at 01:44 24 May 2016 2 Introduction: an overview life was in danger and with much effort they pulled her inside the store. Then the two men turned to attack the victim’s boyfriend, but he quickly drove off. Even after the police arrived, one of the attackers continued to scream racial epithets and make physical threats against the young woman. This attack came out of nowhere.

It was instantaneous, violent, and unprovoked (Eagan, 2008). The police classi - fied this as a hate crime. The attackers, who were two White males, assaulted the victims, who were Black—because of their perceived race. Their motivation was not to randomly harass others, to rob for financial gain, or to assault the next per - son in sight due to uncontrolled rage. The attack was racially motivated and this incident is representative of the nature or character of hate crime. Individuals commit crimes for a variety of reasons: frustration and anger, drug or alcohol addiction problems, financial distress, greed, impulsiveness, to satisfy a lust for evil, psychological problems, boredom, or just plain poor judgment. Still another motivation for committing crime is bias or hatred. Bias crime, more com - monly referred to as hate crime, refers to those offenses that are committed due to the perpetrator’s prejudiced or hostile attitudes toward a particular social group represented by the victim. Most commonly, the offender’s hostility is triggered by his or her perception of the victim’s ethnicity, race, national origin, religion, sex - ual orientation, disability, or gender. But to hold prejudiced attitudes alone is not a crime. A hate crime is comprised of at least two components, (1) the predicate or base criminal offense, such as harassment or intimidation, aggravated assault, malicious damage, arson, or even murder, and (2) evidence that the perpetrator’s actions are motivated by prejudice or animus against the group represented by the victim. The following incident reflects the two components: on November 24, 2013 in Fulshear, Texas, Conrad Alvin Barrett attacked a 79-year-old man via the infamous “knockout” game (Dinan, 2013). These are random, vicious, and unpro - voked attacks that are usually committed by young adults upon unsuspecting vic - tims. The victim in this case sustained a broken jaw and the loss of three teeth.

According to reports, what made this a hate crime and not the typical “knockout” assault was the evidence that the perpetrator sought to purposely target a Black person. The perpetrator videotaped the crime as well as stating his bias motivation to commit it. In this case, the perpetrator was a White male and the victim was Black. However, the perpetrator’s race is of little importance relative to the bias motivation which triggers the crime. But the essential components are present: (1) the criminal offense (aggravated battery) and (2) evidence of a bias motivation (perpetrator heard on tape stating his interest in attacking a Black person). To the perpetrator, the victim is representative of a social group that he or she dislikes intensely or despises. Discovering why the perpetrator possesses this negative attitude or what germinated his or her bigotry is not relevant to the crime itself. Rather, the fact that the prejudiced attitude drives or motivates the offender’s action — in whole or in part—is essential. The victim is targeted because of his or her apparent membership, for example he or she shares common characteristics or attributes such as religion or sexual orientation with the social group, of which the perpetrator strongly disapproves. It is not always clear to law enforcement which bias is at work in a hate crime. A victim could hold multiple memberships Downloaded by [University of Defence] at 01:44 24 May 2016 Introduction: an overview 3 involving two or more groups (or in fact none) that are hated by the perpetrator.

For example, the victim could be both Asian and homosexual, or Hispanic and an immigrant, or disabled and Jewish. In such situations, despite the fact that the victim could be legitimately ascribed membership to more than one group, it is the perpetrator’s perception of who the victim is—rightly or wrongly—that deter - mines the hate motive or motives. Hate crimes are committed throughout the United States with regularity but are not as prevalent as ordinary crimes. The US Justice Department’s 2012 Uni - form Crime Report indicated the estimate of 10,189,900 offenses reported to law enforcement. By comparison, the number of reported hate crime offenses for the same year is miniscule, just 5,796. Clearly, hate crimes do not occur to the same extent as conventional crimes. As a result, some believe that such crimes are not a serious problem because they are relatively rare events or that these crimes are a throwback of the past and more of an anomaly today. Some also make the argument that special laws to address hate crimes are not necessary and even counterproductive—a viewpoint that will be discussed in Chapter 3 (Jacobs & Potter, 1998). However, terrorist acts are also rare, but because of the extraordi - nary ramifications of such acts, they are not only the subject of intense study but also the focus of special legislation and government policy. Hate-motivated crimes can range from the intentional destruction of property to violent aggravated assaults and even murder. The more typical of these acts is reflected in the following accounts: Norwalk, CT. Oct. 13, 2009—Robert Wolf, 48, was charged with intimi - dation based on bigotry and third-degree assault for allegedly spitting in a woman’s face and calling her a derogatory name for Latinos. (SPLC, 2009a) Tinley Park, Ill. Nov. 7, 2009—Valerie Kenney, 54, was charged with a hate crime for allegedly yanking the headscarf of a Muslim woman two days after the Fort Hood shootings. (Brooklyn Daily Eagle , 2010) Ivaylo Ivanov . . . spray-painted swastikas and anti-Semitic slogans through - out Brooklyn Heights . . . while assembling . . . illegal guns and bombs inside his . . . home. “Kill All Jews,” “SS + Jew = Soap,” . . . pamphlets papered parked cars . . . Ivanov pled guilty . . . to possession of a weapon . . . and criminal mischief as a hate crime. He was . . . sentenced to an 18 year(s) of incarceration. (Brooklyn Heights Blog, 2010) The basic fundamentals of hate crime also include the distinctive manner in which it causes harm. A victim is targeted by the perpetrator because of a perceived attri - bute that is an essential element of their identity and not easily obscured. There - fore, for the victim of a hate crime, there is no real ability to mitigate vulnerability. Downloaded by [University of Defence] at 01:44 24 May 2016 4 Introduction: an overview Whereas, a victim of a house burglary can install alarms and deadbolt locks or purchase a watchdog to reduce the likelihood of future targeting and victimiza - tion, hate crime victims cannot simply detach from that which makes them Jewish, Hispanic, Gay or Black. This reality is summarized well by Frederick M. Law - rence (1999, 40), “this heightened sense of vulnerability caused by bias crimes is beyond that normally found in crime victims . . . It is an attack from which there is no escape.” In addition, because the majority of hate crime acts are aimed at individuals who are from groups that historically have been subjected to institu - tionalized discriminatory treatment, harm effects are exacerbated and reverberate old fears; evoking a collective memory of past pains and mistreatment.

Conceptualizations and statutory definitions of hate crime As previously stated there are two necessary components of a hate crime, the predicate criminal offense and the perpetrator’s demonstration of animus toward the victim due to their perceived status. Most hate crime laws articulate these components in statutory language. Nevertheless there are a variety of different conceptualizations and statutory features that are found among hate crime laws. The US Department of Justice defines hate crime as, “a criminal offense committed against a person, property, or society that is motivated, in whole or in part, by the offender’s bias against a race, religion, disability, sexual orientation, or ethnicity/national origin” (US Department of Justice Hate Crime Statistics Act 2004, Appendix A, (b)(1)). In this definition, the base offense is prioritized with the bias element following. This definition also requires that even if a bias motive is only partially at work in a crime, it is still considered a hate crime. The state of California’s hate crime statute mirrors this definition: California Penal section 422.55 states, ‘a criminal act committed, in whole or in part , because of one or more of the following actual or perceived charac - teristics of the victim: 1) disability, 2) gender, 3) nationality, 4) race or eth - nicity, 5) religion, 6) sexual orientation, 7) association with a person or group with one or more of these actual or perceived characteristics.’ (Office of the Attorney General, July 2008) However, the California statute includes the category “association” with those who are targeted as a result of their perceived characteristics. This expands California’s ability to use their hate crime statute to prosecute cases where indi - viduals are targeted due to their mere affiliation with members of a group hated by the perpetrator. Most states include the protected categories of race, ethnicity, religion, and sexual orientation. But just as California included “association,” other states also include less common protected categories. For example, New York’s Hate Crimes Act of 2000 (485.05) not only includes religion, but also “religious practice,” and “ancestry” as bias categories. Recently disability has been added as a bias category.

Alabama includes it among its protected categories, and further delineates it as Downloaded by [University of Defence] at 01:44 24 May 2016 Introduction: an overview 5 either physical or mental disability (Section 13A-5-13). This state also adds inter - esting language to its statute by describing the justification as well as the limits of its hate crime statute. It references incitement by groups like the Ku Klux Klan and others, which have a history of carrying out hate- motivated violence. According to California State University at San Bernardino’s Center for the Study of Hate and Extremism: Alabama 2: The Legislature finds and declares the following: 1 It is the right of every person, regardless of race, color, religion, national origin, ethnicity, or physical or mental disability, to be secure and pro - tected from threats of reasonable fear, intimidation, harassment, and physical harm caused by activities of groups and individuals. 2 It is not the intent, by enactment of this section, to interfere with the exer - cise of rights protected by the Constitution of the State of Alabama or the United States. 3 The intentional advocacy of unlawful acts by groups or individuals against other persons or groups and bodily injury or death to persons is not con - stitutionally protected when violence or civil disorder is imminent, and poses a threat to public order and safety, and such conduct should be subjected to criminal sanctions. One finds different terminology incorporated in Utah’s hate crime law. The statu - tory language found in 76-3-203.3 includes a noticeable emphasis on the intimida - tion of the victim: 2 (a) A person who commits any primary offense with the intent to intimi - date or terrorize another person or with reason to believe that his action would intimidate or terrorize that person is subject to Subsection (2)(b). 3 “Intimidate or terrorize” means an act which causes the person to fear for his physical safety or damages the property of that person or another.

The act must be accompanied with the intent to cause or has the effect of causing a person to reasonably fear to freely exercise or enjoy any right secured by the Constitution or laws of the state or by the Constitution or laws of the United States. Utah has apparently determined to eschew the inclusion of specific protected cat - egories, preferring to emphasize the intent of the perpetrator to threaten or terror - ize the victim. This brief review provides a sense of the variation found in hate crime stat - utes. But these differences are not unexpected. Differences in cultural and social norms and local politics, including the discourse and negotiations that occurs among politicians, policymakers, citizen advocacy groups, other interest groups and the voting public, all play a role in defining crime in general and hate crime in particular (Lawrence, 1999; Petrosino, 1999; Jacobs & Potter, 1998, Jenness & Broad, 1997). These dynamics help forge the differences seen among state hate crime laws. For example, although gender and disability are included as Downloaded by [University of Defence] at 01:44 24 May 2016 6 Introduction: an overview protected categories in New Jersey’s hate crime laws, Delaware, New Jersey’s close neighbor to the south, does not include gender. Ohio, another neighboring state of New Jersey, lists race, color, religion, or national origin, but not gender, disability, or sexual orientation. Criminalized acts are the product of multiple social forces that subsequently forge a set of laws. Perry (2001) and Hall (2005) respectively identify these vagaries by noting, “crime is . . . socially constructed and means different things to different people at different times, and what con - stitutes a crime in one place may not in another” (Perry, 2001 as cited in Hall, 1). As Perry suggests, crime is therefore relative and historically and culturally contingent . . . this is particularly true of hate crime” (Perry, 2001 as cited in Hall, 1). Scholars also construct various definitions or theoretical conceptualizations of hate crime. Early efforts focused on describing aspects of hate crime. These endeavors emphasized the bias motive of perpetrators, their demographic pro - files, and the violent nature of these acts. There were also significant contribu - tions made in describing the operational elements of these crimes (Hamm, 1994; Levin & McDevitt, 1993; Levin, 1999; Gerstenfeld, 2004). Initial observations by researchers included the view that hate crimes were at times typical juvenile acts committed by youngsters seeking a thrill or peer approval (Levin & McDevitt, 1993). Others describe hate crimes as political acts with consequences that far exceed the immediate injury of the victim (Hamm, 1994, Petrosino, 1999, Perry, 2001). The most serious of these acts are viewed by some as having the potential to destabilize government itself (Dees & Corcoran, 1996). Some theoretical definitions of hate crimes include the assertion of a dynamic quality that has significant repercussions beyond that of the crime for the vic - tim, the perpetrator, and even for society (Bowling, 1993; Perry, 2001; Petrosino, 2002). These definitions contend that the action of hate crimes has a practical and deeply symbolic meaning. The perpetrator has constructed a world view that requires him or her to “defend” against an imagined threat. This “defense” in the hate crime perpetrator’s mindset is acted out each time an attack on a “threaten - ing” victim/enemy occurs. The perpetrator is messaging to the victim and his or her community that they have crossed a social boundary that will not be tolerated; they have violated a standard in the perpetrator’s social world and therefore pose a threat that must be addressed. Thus, the hate crime act is 100 percent pragmatic— it directly punishes the victim physically and psychologically, and it is equally symbolic—it represents and enforces the social relationship and social ordering constructed by the perpetrator. The differences among hate crime statutes and to some degree, the differ - ences among scholarly or academic definitions clearly reflect the complexities surrounding hate crime as a social problem. Bigotry, racism, homophobia, anti- Semitism, ethnocentrism and the rest of the isms have occurred since the begin - ning of humankind. But as policymakers, criminal justice officials, social service providers, community activists, and academics further comprehend the intricacies of hate crime, the more likely theoretical definitions and hate crime laws them - selves will become increasingly refined.Downloaded by [University of Defence] at 01:44 24 May 2016 Introduction: an overview 7 Why did hate crime laws come into being?

Hate-motivated acts have long existed, but what were the driving forces that led to modern hate crime legislation? As the Civil Rights Movement of the 1950s and 1960s gained momentum and public attention, it also ignited a resurgence of activity from the USA’s leading hate group at the time, the Ku Klux Klan (Levin, 2009; Sims, 1996). During that era, as institutionalized discriminatory and racist practices were uncovered and publicized, the more the federal govern - ment enacted laws—civil rights laws—as a response to punish those behaviors.

The Civil Rights Act of 1964 (The Act), sought to discourage racially motivated discrimination. It prohibited state and municipal governments from denying access to public facilities on grounds of race, religion, gender, or ethnicity. The Act also out - lawed discrimination in “hotels, motels, restaurants, theaters, and all other pub - lic accommodations engaged in interstate commerce.” This law propounded that discrimination based on race, color, or national origin will not be acceptable in any program that receives federal funds and asserted that such racially motivated discrimination (and other included biases) will be circumscribed by the federal government. Similar laws like the Civil Rights Act of 1968, the Civil Rights Res - toration Act of 1988, and the Civil Rights Act of 1991, all served as the precursors to modern hate crime legislation. These laws were used to impact discrimination motivated by race, religion, gender and ethnicity and firmly established the intent of the government to intervene and suppress racial and other hate-motivated acts committed by institutions and citizens. In spite of these legislative developments, the 1980s saw an increased visibility of neo-Nazi skinheads, various White nationalists, Klansmen and other racialist groups in the United States. This should not be taken to mean that individuals and groups committed to the ideals of White supremacy and other similar ideolo - gies of power and privilege laid dormant between the Civil Rights era through to the 1980s. No. There are several substantive works that describe with detail the ongoing efforts and activities of those dedicated to this philosophy since World War II (Zeskind, 2009; Barkun, 1994; Lee, 2000). But, the noticeable active - ness of hate groups in the 1980s was also commensurate with a clear increase in hate-motivated criminal activity. As a result of this disturbing trend and calls from civil rights organizations like the Southern Poverty Law Center (SPLC), the Anti- Defamation League (ADL), and others, the Congress enacted the Hate Crimes Statistics Act of 1990 (HCSA). This federal law, which was the first to employ the term “hate crime,” requires the US Attorney General to collect, maintain and publish data on crimes reported that evidenced prejudice based on race, ethnicity, religion, and sexual orientation. This data is published annually by the Federal Bureau of Investigation’s Uniform Crime Reports program. The protected cat - egories in the HCSA were expanded to include disabilities, with the enactment of the 1994 Violent Crime Control and Law Enforcement Act. Passage of state hate crime laws were advocated by the Anti-Defamation League and were further sup - ported by the ADL’s model hate crime statute which withstood court challenges (see Box 1.1 ).Downloaded by [University of Defence] at 01:44 24 May 2016 8 Introduction: an overview Box 1.1 ADL—Model Hate Crime Statute originally drafted in 1981 1 Institutional Vandalism • A person commits the crime of institutional vandalism by know - ingly vandalizing, defacing or otherwise damaging:

 Any church, synagogue or other building, structure or place used for religious worship or other religious purpose;  Any cemetery, mortuary or other facility used for the purpose of burial or memorializing the dead;  Any school, educational facility or community center;  The grounds adjacent to, and owned or rented by, any institu - tion, facility, building, structure or place described in subsec - tions (i), (ii) or (iii) above; or  Any personal property contained in any institution, facility, build - ing, structure, or place described in subsections (i), (ii) or (iii) above. • Institutional vandalism is punishable as follows:

 Institutional vandalism is a ______ misdemeanor if the person does any act described in subsection A which causes damage to, or loss of, the property of another.  Institutional vandalism is a ______ felony if the person does any act described in Subsection A which causes damage to, or loss of, the property of another in an amount in excess of five hundred dollars.  Institutional vandalism is a ______ felony if the person does any act described in Subsection A which causes damage to, or loss of, the property of another in an amount in excess of one thousand five hundred dollars.  Institutional vandalism is a ______ felony if the person does any act described in Subsection A which causes damage to, or loss of, the property of another in an amount in excess of five thousand dollars. 2 Bias-Motivated Crimes • A person commits a Bias-Motivated Crime if, by reason of the actual or perceived race, color, religion, national origin, sexual ori - entation, or gender of another individual or group of individuals, he violates Section ______ of the Penal code (insert code provisions for criminal trespass, criminal mischief, harassment, menacing, intimidation, assault, battery, and or other appropriate statutorily proscribed criminal conduct). • A Bias-Motivated Crime under this code provision is a ______ mis - demeanor/ felony (the degree of criminal liability should be at least one degree more serious than that imposed for commission of the underlying offense). (continued)Downloaded by [University of Defence] at 01:44 24 May 2016 Introduction: an overview 9 (continued) 3 Civil Action for Institutional Vandalism and Bias-Motivated Crimes • Irrespective of any criminal prosecution or result thereof, any per - son incurring injury to his person or damage or loss to his property as a result of conduct in violation of Sections 1 or 2 of this Act shall have a civil action to secure an injunction, damages or other appropriate relief in law or in equity against any and all persons who have violated Sections 1 or 2 of this Act. • In any such action, whether a violation of Sections 1 or 2 of this Act has occurred shall be determined according to the burden of proof used in other civil actions for similar relief. • Upon prevailing in such civil action, the plaintiff may recover:

 Both special and general damages, including damages for emotional distress;  Punitive damages; and/or  Reasonable attorney fees and costs. • Notwithstanding any other provision of the law to the contrary, the parent(s) or legal guardian(s) of any unemancipated minor shall be liable for any judgment rendered against such minor under this Section. 4 Bias Crime Reporting and Training • The state police or other appropriate state law enforcement agency shall establish and maintain a central repository for the collection and analysis of information regarding Bias-Motivated Crimes as defined in Section 2. Upon establishing such a repository, the state police shall develop a procedure to monitor, record, classify and analyze information relating to crimes apparently directed against individuals or groups, or their property, by reason of their actual or perceived race, color, religion, national origin, sexual orientation or gender. The state police shall submit its procedure to the appropri - ate committee of the state legislature for approval. • All local law enforcement agencies shall report monthly to the state police concerning such offenses in such form and in such manner as prescribed by rules and regulations adopted by state police. The state police must summarize and analyze the information received and file an annual report with the governor and the appropriate committee of the state legislature. (continued)Downloaded by [University of Defence] at 01:44 24 May 2016 10 Introduction: an overview (continued) • Any information, records and statistics collected in accordance with this subsection shall be available for use by any local law enforcement agency, unit of local government, or state agency, to the extent that such information is reasonably necessary or useful to such agency in carrying out the duties imposed upon it by law.

Dissemination of such information shall be subject to all confiden - tiality requirements otherwise imposed by law. • The state police shall provide training for police officers in identi - fying, responding to, and reporting all Bias-Motivated Crimes. (Source: ADL) Since the passage of the HCSA in 1990, nearly every state, with the exceptions of Wyoming, Georgia, Arkansas, South Carolina, and Indiana, has some legisla - tion aimed at punishing hate-motivated behavior. Wyoming does have laws that are more in keeping with criminal civil rights laws, which prohibit discrimination— Wyo. Stat. paragraph 6-9-102 states, “No person shall be denied the right to life, lib - erty, pursuit of happiness or the necessities of life because of race, color, sex, creed or national origin.” What also increased state responses to hate-motivated crime were several high profile crimes that occurred in the late 1980s through the 1990s that brought national attention to the ugly nature of hate crimes. In 1989, Black teenager Yusef Hawkins was killed in a racially motivated shooting in Bensonhurst, New York, a predominately White community. Both James Byrd Jr, and Matthew Shepard were brutally murdered in 1998, in different areas of the country, due to their race and sexual orientation, respectively. All three of these deaths triggered public outrage; each brought public demonstrations and marches that vowed to bring pressure to legislatures to pass laws to stem these types of tragic crimes.

How do hate crime laws differ from federal civil rights laws? Rev. Henry Harris, reported that . . . he and . . . his family watched for 35 minutes as white diners . . . who arrived after him were escorted to tables at a Cracker Barrel restaurant in Arkansas. He and his family wound up in the smoking section with other African-American patrons . . .

(USA Today , 2010) After investigating multiple similar complaints, the US Justice Department filed a lawsuit against Cracker Barrel. Its complaint alleges that Cracker Barrel violated Title II of the Civil Rights Act of 1964 by engaging in a pattern or practice of discrimination against African-American customers and prospective customers on the basis of their race or color: Cracker Barrel segregated customers by race; allowed white servers to refuse to wait on African-American customers; and seated or served white customers Downloaded by [University of Defence] at 01:44 24 May 2016 Introduction: an overview 11 before seating or serving similarly situated African-American customers. The lawsuit further alleged that, in many cases, managers directed, participated or acquiesced in those practices. (USA Today , 2010) What is alleged to have happened to Rev. Harris and other Black families illustrates a violation of federally protected civil rights. The Civil Rights Act Title II states: SEC. 201. (a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, and privileges, advantages, and accommo - dations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin. Public accommodations include, but are not limited to, hotels, inns, movie theat - ers and restaurants—such as the Cracker Barrel restaurant whereas, the type of actions criminalized by state and local hate crime laws are represented by acts like the following reported by the SPLC: Ronald Allen Bramlett, a 65-year-old white man, was charged with felony aggra - vated assault, criminal threats and an enhancement of an alleged hate crime for allegedly calling a Black teenager racial slurs and threatening him with a knife. (SPLC, 2010) These two examples help us to understand similarities and differences in acts that violate federal civil rights laws and those that violate state hate crime laws as well as the intent of both sets of laws. Both civil rights and hate crime laws: (1) seek to inhibit discriminatory acts that are motivated by race, religion, national origin and ethnicity; (2) seek to protect the constitutionally protected rights of citizens; (3) provide specific sanctions for behaviors that violate these laws; and (4) identify the discriminatory aspect of the action as a central component of this prohibition. There are at least three general differences between these laws. First, federal civil rights acts are only applicable when there is a bias motivation to interfere with an individual engaging in activities that are constitutionally pro - tected (using public accommodations or places of entertainment, seeking employ - ment, or using a facility of interstate commerce (trains, buses). Federal civil rights laws protect victims targeted due to a status condition and who are participating in a federally protected activity. Second, hate crime statutes address the targeting of individuals because of their race, ethnicity, and so on, regardless of the victim’s activity. These laws protect victims targeted because of their group membership.

Finally, federal civil rights laws are handled by federal prosecutors in federal courts, whereas state and local hate crime laws are administered by the local dis - trict attorney and state or lower level courts.

Hate speech is not hate crime Many may find hateful speech to be repugnant and distressing, but such speech is not a crime in the United States. It is often protected by the Constitution despite Downloaded by [University of Defence] at 01:44 24 May 2016 12 Introduction: an overview the intent of the speaker to wound and denigrate the individual and/or group the speech is directed against. The Framers of the Constitution held that the right to free speech is necessary for a free society and therefore cannot be interfered with by government. The First Amendment reads, in part, “Congress shall make no law . . . abridging the freedom of speech.” Nevertheless, the Constitution does allow some restrictions on speech under certain circumstances. To illustrate this point, Justice Holmes wrote, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic” ( Schenck v. United States , 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 [1919]). Expressions that under certain circumstances may trigger, facilitate, or encourage harmful acts are less likely to receive First Amendment protections. Example of protected hate speech White Supremacists March in Jena: Klansmen and white nationalists brandished nooses and chanted “If it ain’t white, it ain’t right” during a racist march and rally in Jena, La., organized by the Nationalist Movement on Martin Luther King Jr. Day. (SPLC, 2008) Matsuda (1993, 36), define hate speech as speech that (1) has a message of racial inferiority, (2) is directed against a member of a historically oppressed group, and (3) is persecutory, hateful, and degrading. While hate speech is often in the form of verbal communication directed toward a target or expressed in a public forum during a hate rally, there are other forms of speech less recognized.

Symbolic speech is nonverbal expression that conveys an idea. In the world of racialists and White supremacists, nonverbal expressions include the wear - ing of symbols such as Nazi regalia like swastikas, the iron cross or lightning bolts. Even cross burning may be considered protected speech but other times, it would not. For example, Virginia v. Black , 538 U.S. 343, 123 S. Ct.1536. 155 L. Ed.2d 535 (2003) involved a cross burning aimed at terrorizing an African- American family. A Virginia criminal statute had outlawed cross burning “on the property of another, a highway or other public place . . . with the intent of intimidating any person or group.” The court upheld the statute and emphasized that the First Amendment would protect some types of cross burnings, such as those done at political rallies. However, when the cross burning targeted indi - viduals for the purposes of criminal intimidation, the First Amendment would not be triggered (Cornell University Law School).Downloaded by [University of Defence] at 01:44 24 May 2016 Introduction: an overview 13 While it is true that hate speech is generally protected by the First Amendment, it is also true that these are socially damaging expressions with the potential to seed and strengthen bigoted notions in others. Moreover, the use of the Internet, by racialists and other extremists, to spread hate-filled ideologies exponentially increases the potential social harm. However, the use of the Internet by hate groups and like-minded individuals once again is protected by the First Amendment. But using the Internet to directly threaten a tar - geted individual or organization is criminal and is not protected speech. Law enforcement officers and prosecutors must be careful in their determination of whether a hate crime has occurred, as opposed to an incident of protected hate speech (Bell, 2002).

A hate incident is not a hate crime There are acts that occur which are clearly motivated by prejudice or hatred, but they are not illegal. For example, the Pittsburgh Tribune Review reported that in January 2010 a student at a junior high school in Pittsburgh, Pennsylvania, wore a Despite the differences between hate speech and hate crime, hate speech may be interpreted by law enforcement as an indicator of a suspected hate crime. For example, an assault and battery may be identified as bias motivated if words or other forms of expression used by the assailant communicate hate or animus for the group represented by the victim.” Frederick Lawrence offers one of the clear - est explanations of the difference between hateful but protected speech and hate crime: The basic distinction . . . lies in the underlying motivation of the actor . . . racist speech is expression, a form of behavior that, how - ever offensive, is protected . . . in our legal system. Speech advocat - ing racial superiority is . . . the expression of an opinion. Burning a cross on the lawn of a Black family, [a form of expression] bias aside, is still at least trespass . . . Free expression protects the right to express offensive views but not the right to behave criminally . Speech that is intended to frighten someone . . . is a verbal assault that may be punished. Bias-targeted behavior that is intended to cre - ate fear in its targeted victim is a bias crime, whether the behavior is primarily verbal or physical. . . . Racially targeted behavior that vents the actor’s racism . . . constitutes racist speech that is protected by the First Amendment. (Lawrence, 1999, 83)Downloaded by [University of Defence] at 01:44 24 May 2016 14 Introduction: an overview mask depicting Barack Obama to a school basketball game and carried an empty bucket of Kentucky Fried Chicken. Although the student was removed from the gymnasium and disciplined by school officials, this act is not considered a hate crime ( Pittsburgh Tribune Review , January 19, 2010, Race Relations Newsletter , dtd. January 19, 2010). Likewise, racist pamphlets were found in several locations in and around Hayden, Idaho. The hate literature was left on lawns or placed at public gathering spots ( Coeur d’Alene Press , January 19, 2010, Race Relations Newsletter , dtd. January 19, 2010). Unless this activity violated a littering or tres - passing ordinance, it is not a hate crime. Both of these incidents describe bigoted behaviors that are repugnant and offensive—but they are not illegal. As men - tioned earlier, a hate crime must involve a criminal offense (for example, assault, malicious damage) that is motivated by bias.

The term “hate crime” is appropriate According to the US Department of Justice, the term “hate crime” was coined by journalists and DOJ staff during the preparation of the bill to propose the Hate Crimes Statistics Act, which was subsequently incorporated in the statu - tory language. Many began to adopt the expression and use it to refer to this crime category. More recently, there have been those who assert that the term is inaccurate and that the phrase “bias crime” is perhaps more appropriate (Chakraborti & Garland, 2009; Jacobs & Potter, 1998). They reason that the term “hate crime” overreaches and makes assumptions about the motives of the perpetrator. The term suggests that for such a crime to occur, the perpetrator’s actions must be driven by detestation and loathing of what the victim repre - sents. Moreover, this perspective observes that it is not hatred but prejudice toward the victim because of his or her membership in a group for which the perpetrator feels contempt (Ehrlich, 1992; Lawrence, 1999; Hall, 2005). This understanding is represented in the following statement offered by the Preju - dice Institute (Ehrlich, paragraph 4): In actual fact, “hate” as a strong, negative emotional response is not necessar - ily involved. Many ethnoviolent incidents are committed impulsively, or as acts of conformity, or as calculated acts of intimidation designed to achieve specific ends of the perpetrator. However, even with the recognition that not all hate crime perpetrators are driven by intense hatred, it is nevertheless arguable that the term “hate crime” is appro - priate and may be a more accurate term with respect to the experiences of the victims of such attacks. Consider the nature of the victims’ experiences in the following accounts of alleged hate crime acts: • Eric Patten was sentenced to 30 days in jail for punching and push - ing two women after yelling anti-gay epithets at them in May (SPLC, 2009b). Downloaded by [University of Defence] at 01:44 24 May 2016 Introduction: an overview 15 • Darrel James Allen, a 23-year-old Black man, was charged with a hate -crime battery causing injury, robbery, assault and violation of civil rights for yelling racial slurs and punching a Latino man unconscious (SPLC, 2009c). • Swastikas and the letters “KKK” were carved into a Black woman’s car door and scrawled on her cubicle at work (SPLC, 2009d). • Racial taunts were directed at African-American players on an opposing team during a basketball game at a high school in Anaheim, California.

An audio recording of the game confirms that when a Black player touched the ball, members of the crowd made monkey noises (Orange County Register, January 17, 2009, The Race Relations Reporter. Weekly Bulletin . January 17, 2009). • A Black professor at Fort Lewis College in Durango, Colorado, received a note in his office mailbox that contained a swastika. Later, the door to his office was set on fire. Police believe the incidents may be related (Durango Herald , October 4, 2008, The Race Relations Reporter. Weekly Bulletin . October 15, 2008). Taking into account the nature of these acts and their real and symbolic meanings, one may question whether the term “bias crime” characterizes them sufficiently from the victim’s standpoint . The deeply personal nature of these attacks all say to the victim that because of what you are, you are not entitled to exercise your right to liberty, to expect personal safety and security, nor to assume the privileges of citizenship (Parks & Jones, 2008). Whether the attacker is fully conscious of the destructive nature of his or her actions or has the requisite scorn that would qualify as “hatred” from a social psychology point of view, the end result is the same. It is akin to criminals who choose to use either a real or fake gun during the commission of a crime. Some of them have the intention to kill the victim, while others may wish only to intimidate the victim. But in the end, the victims are all terrified and believe that their lives may be coming to an end. To be selected for victimization without provocation (merely because of what you represent to the attacker) certainly must have the impact of being hated. Those who investigate sexual violence usually identify rape as rape. Although the perpetrator’s intent may be to dominate and exercise power over the victim, these crimes are not referred to as first or second degree domination ; they are called what they are, correctly referencing the victim’s experience of rape. Hate is what the victim experiences at the hands of the perpetrator and therefore “hate crime” may be a more fitting term than “bias crime.” Ehrlich (1992, 5) acknowledges that the term “bias crime” possesses an “antiseptic quality.” This quality may pos - sibly diminish how victimization is viewed by utilizing “bias crime,” a term that is more clinical and dispassionate than “hate crime,” which is more reflective of the harm caused.Downloaded by [University of Defence] at 01:44 24 May 2016 16 Introduction: an overview Public attitudes toward hate crimes and hate crime laws Behaviors deemed threatening to the public welfare are often proscribed by law. Although the intent of these laws is to protect the public, sometimes public sentiment is mixed toward the crime, the law and/or the punishment it requires. Some view hate crime legislation as unnecessary, even counterpro - ductive (Jacobs & Potter, 1998). Still, some studies show that there is pub - lic support for the existence of these laws, particularly when the victims of these crimes belong to historically oppressed groups (Steen & Cohen, 2004).

There is also evidence that suggests that attitudes toward hate crime laws are influenced by personally held biases. For example those with anti-Jewish or anti-homosexual sentiments are less supportive of hate crime laws (Johnson & Byers, 2003; Lyons, 2006). This literature, which is not extensive, indicates that attitudes toward majority and minority social groups are predictive of support toward hate crime legislation. Newspaper coverage and portrayals of hate crime incidents may also influ - ence the public’s perception. Since hate crimes are largely about efforts to con - trol social place and order, newspapers may indirectly impact this aim depending on whether and how they cover these incidents. In other words, to the extent that the media gives insufficient attention to these crimes, the public may intuit that they hold less importance. Gross and Goldman (2003) compared the coverage of mainstream newspapers of anti-gay hate crime with that of a gay newspaper.

While they found more coverage of anti-gay hate crimes in the gay newspaper, they also found that some mainstream papers presented these incidents in a man - ner similar to the gay newspaper. However, a more thorough and systematic examination of the coverage of hate crimes by major newspapers would con - tribute significantly to this under-researched area. Results could better explain whether and how media portrayals shape public opinion on hate crime in a more definitive way.

About hate crime statistics Prior to the passage of the HCSA, there were very few jurisdictions that quanti - fied bias or hate-motivated crimes. The Boston Police Department was the first to document racially motivated crimes, having done so since 1978 (Lawrence, 1999). It is also the first police department to establish a Community Disorders Unit and is recognized for its early commitment to educate and train officers and others about this emerging crime problem (Levin & McDevitt, 1993; Levin & McDevitt, 2002). Other early efforts to track hate crimes were undertaken by advocacy groups such as the Anti-Defamation League and the Southern Poverty Law Center. Notwithstanding these attempts, determining hate crime prevalence prior to 1990 is elusive due to the absence of a standardized data collection system during that time. Official hate crime data primarily come from two sources, the FBI’s Uniform Crime Reporting Program (UCR) and the National Crime Victimization Survey Downloaded by [University of Defence] at 01:44 24 May 2016 Introduction: an overview 17 (NCVS), which is administered by the Bureau of Justice Statistics. These data have different collection points. UCR hate crime data is based on crime statistics reported by state and local law enforcement agencies; whereas NCVS is based on hate crime victimization experiences reported in surveyed households. The limitations of both data sources are well known. Although UCR reflects crimes reported to police, it does not capture unreported crimes. For a variety of rea - sons, some hate crime victims do not contact police and report crimes. Gener - ally speaking, racial minority communities and homosexuals historically have had strained relationships with law enforcement and see police as potentially unresponsive to their victimization. Or worse, they believe that police would exacerbate their distress with apathetic and discourteous treatment. In addition, although the vast majority of police departments participate in the UCR, there is not yet 100 percent participation. According to the Leadership Conference on Civil Rights Education Fund (LCCREF), “at least 21 agencies in cities with populations between 100,000 and 250,000, did not participate in the FBI data collection effort in 2007” (2009, 7). Also, since hate crime statutes and reporting protocols vary across jurisdictions, what is reported will contain vagaries and will not reflect a consensus or a standardized recognition of hate crime. Thus a crime that occurs in Illinois may be statutorily defined, but the same act in Geor - gia may not be and therefore would not be recorded by police as a hate crime.

Thus the UCR only represents a fraction of the hate crimes that have occurred (see T able 1.1 ). The NCVS was developed to address non-reporting problems by going directly to people and interviewing them regarding their crime victimization experiences.

Even though this provides an excellent opportunity to capture information about unreported hate crimes, the NCVS has other inherent problems. For example, individuals may inaccurately recall an experience, unconsciously add features to the event or fail to remember significant aspects. Understanding bias motives is challenging even for trained law enforcement personnel, and therefore it may be an even larger hurdle for ordinary citizens. NCVS interviewees are asked to identify the type of bias they believed motivated their attack. Once again, misper - ceptions or mistaken interpretations could impede accurate accounts even with interviewees offering indicators that they believe corroborate their perceptions.

Moreover, there may not be a clear understanding of the difference between a hate crime and a hate incident to the interviewee, and what is described may only be an embellished incident. Finally, there may be hesitancy in discussing a hate crime experience to NCVS interviewers, particularly if a gay male, lesbian woman or transgendered victim has not made their sexual orientation or gender identity public. Now that we understand the differences between UCR and NCVS as sources of official crime statistics, as well as their respective limitations, how do these sources report hate crime prevalence? The average yearly number of hate crimes reported by the UCR for years 2000–5 is 7,926. But the NCVS reports that the average number, for the time period of July 2000 through to December 2003 (a shorter time period), is 191,000 (Bureau of Justice Statistics, 2005). Downloaded by [University of Defence] at 01:44 24 May 2016 18 Introduction: an overview This considerable difference suggests that NCVS may be capturing as much as 24 times the number of hate crimes than is reflected in UCR reports. These realities make clear that a single source of national data cannot be viewed as sufficient to gauge the true scope of hate crime prevalence. The National Incident Based Reporting System (NIBRS) is an additional govern - ment source of information on reported hate crimes. NIBRS collects more detailed information on reported crime events (up to 53 data elements recorded) and thus has the capacity to provide more in depth information (see Table 1.2 ). Beyond informa - tion describing the base crime, bias or hate motive, victim and perpetrator attributes, NIBRS includes information regarding the location of the crime and the relationship between the victim and the perpetrator, time of day of the incident, and victimiza - tion patterns. More importantly, it reports incident-specific factors and thus pro - vides context-rich data that goes beyond the aggregate data of the UCR. Examples from the data sources Table 1.1 Hate crimes statistics 2008: incidents, offenses, victims, and known offenders by bias motivation Bias motivation Incidents Offenses Victims 1 Known offenders 2 Total 7,783 9,168 9,691 6,927 Single-bias incidents 7,780 9,160 9,683 6,921 Race: 3,992 4,704 4,934 3,723 Anti-White 716 812 829 811 Anti-Black 2,876 3,413 3,596 2,596 Source: http://www.fbi.gov/ucr/hc2008/data/table_01.html. Retrieved October 2, 2010 Notes: 1 The term victim may refer to a person, business, institution, or society as a whole. 2 The term known offender does not imply that the identity of the suspect is known, but only that an attribute of the suspect has been identified, which distinguishes him/her from an unknown offender.

NCVS data—2005 • Most hate crimes described by victims accompanied violent crimes—a rape or other sexual assault, robbery, or assault (84 percent). The remaining 16 percent were associated with property crimes— burglary or theft. • Victims reported a major violent crime—a rape, robbery, or an assault in which a victim was injured or threatened with a weapon—in a third of hate incidents. • In about half of hate crimes, the victim was threatened verbally or assaulted without either a weapon or an injury being involved. (Source: BJS, 2005)Downloaded by [University of Defence] at 01:44 24 May 2016 Table 1.2 NIBRS data (1995–2000): number of incidents by location and bias motivation Race Religion Ethnicity Sexual orientation Disability Unknown Total Air/Bus/Train terminal 17 3 3 5 1 29 Bank/Savings and loan 9 1 1 1 12 Bar/Nightclub 79 4 27 36 1 147 Church/ Synagogue/ Temple 14 116 2 4 1 137 Commercial/ Office building 152 56 18 15 241 Construction site 17 4 3 2 26 Convenience store 58 7 14 6 1 86 Department/ Discount store 50 6 6 7 69 Drug store/Drs office/Hospital 25 2 4 4 2 37 Field/Woods 42 10 8 5 2 67 Government/ Public building 69 18 9 11 107 Grocery/ Supermarket 34 5 11 9 59 Highway/Road/ Alley 739 61 134 100 6 1,040 Hotel/Motel/etc. 46 2 8 5 61 Jail/Prison 62 2 3 4 71 Lake/Waterway 9 1 3 1 1 15 Liquor store 3 2 1 6 Parking lot/ Garage 300 53 64 62 6 485 Rental stor. facil. 6 4 1 7 18 Residence/home 1,131 215 207 305 23 3 1,884 Restaurant 90 6 14 17 127 School/College 382 110 66 107 4 3 672 Service/Gas station 44 11 12 8 1 76 Specialty store (TV, Fur, etc.) 44 12 7 4 2 69 Other/unknown 218 38 31 26 1 314 TOTAL 3,640 747 658 752 47 11 5,855 Source: www.as.wvu.edu/~jnolan/analysis.html (Accessed February 10, 2010) Note: Unit of count—IncidentDownloaded by [University of Defence] at 01:44 24 May 2016 20 Introduction: an overview Other sources of information on hate crime incidence A number of agencies and organizations publish statistics on hate crimes. Man - dated by the Jeanne Clery Act of 1990 ( Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act) , the Department of Education monitors the compliance of colleges and universities that are required to publish informa - tion on crime data. These data also includes hate crimes (US Department of Edu - cation, 1998). Founded in 1913, the early focus of the Anti-Defamation League (ADL) was on exposing anti-Semitism and to advocate for the fair treatment of Jewish people. Today the ADL addresses bigotry and intolerance in general and supports civil rights for all people. The organization audits and publishes yearly anti-Semitic incidents in the United States. Co-founded in 1971 by Morris Dees and Joe Levin, the Southern Poverty Law Center (SPLC) remains focused on advocating for minorities and the poor to ensure that civil rights laws would be actualized. Combining the tools of education and the courts, the SPLC brings civil suits against hate crime perpetrators and provides educators and others resources on teaching bridge building and innovative diversity initiatives. The SPLC also publishes information on hate incidents and hate crimes, For the Record , through the Intelligence Report publication. Similar efforts were made by The Journal of Blacks in Higher Education ’s, The Race Relations Reporter. The Reporter , which is no longer available, was a weekly disseminated electronic newsletter that provided a variety of articles and commentary primarily on education policies and court decisions that impact African-American and other racial groups. It also chronicled racial incidents in Recent Racial Incidents in the United States , which listed brief summaries of racial incidents reported in US newspapers. Distinct from other victim advocacy organizations, the National Coalition of Anti-Violence Programs (NCAVP) is committed to addressing violence against sexual minorities and HIV-affected persons even when the violence is perpetrated by members of those communities. Similar to the ADL, the NCAVP provides a number of informational resources to assist communities responding to these inci - dents. It also annually publishes a report on anti-LGBTQ violence (see www.avp.

org). One of the more recent advocacy groups, the Asian American Justice Center, which was founded in 1991, monitors anti-Asian trends in the USA and offers assistance in combating these behaviors and promotes civil rights for all groups.

It publishes comprehensive reports of anti-Asian incidents (see 2002_Audit of Violence Against Asian Pacific Americans.pdf). While the efforts of these organi - zations may contribute to the further understanding of prevalence, none demon - strate a well-vetted methodology to establish good baseline data that would enable comparative or other analyses.

Where hate crimes occur Descriptive data from a number of sources provide information on when and where hate crimes have occurred. NIBRS reports the following:Downloaded by [University of Defence] at 01:44 24 May 2016 Introduction: an overview 21 • 32 percent of all hate crimes reported in NIBRS 1997–1999 occurred in a residence. • 28 percent in an open space such as parking garages, parking lots or streets. • 19 percent in a commercial/retail business or public building. • 12 percent in a school or college. • 30 percent or more of racial, ethnic, and disability-motivated incidents occurred in an open space. • Of sexually motivated incidents, 41 percent occurred at a residence, 23 per - cent in an open space, 16 percent at a school or college and 15 percent at a commercial/retail business or public building. • One-third of religious-motivated incidents occurred at an educational or reli - gious institution. • Weapons were reported to have been used in 18 percent of all violent hate crimes. • Victims age 17 or younger were most likely to be victimized during the day, as nearly two-thirds of these incidents occurred between 7 a.m. and 6 p.m., with a peak between 2 p.m. and 4 p.m. • Violent hate crimes involving victims age 18 to 24 were more likely to occur in the late evening, between 10 p.m. and 1 a.m., with a peak around midnight. (BJS, 2001, 6) These data mostly show that as a crime category, hate crimes are not very dissimilar from conventional crime events when it comes to place and time factors (Victims of Crime). In particular, children and younger teenagers or often victimized between 2 p.m. and 4 p.m., when adult supervision is most likely to be lacking (after school and before parents arrive home from work). However, young adults (aged 18–24) are more likely to be targeted during late evening. Christopher Lyons (2007) examined the structural conditions of communi - ties and the likelihood of racially motivated hate crimes to occur in them and reported instructive conclusions. In testing social disorganization theory, resource competition theories and the defended community perspective, Lyons found that anti-Black motivated incidents were more likely to happen in organized com - munities with established informal social control mechanisms in place, and less likely in deteriorating communities undergoing economic strain and uncertainty.

His findings support the historical observation of coordinated resistance to Blacks attempting to integrate White communities. In socially organized and economi - cally sound White communities, resources are marshalled and used to message to Blacks that they are unwelcome in that area. Thus, hate crimes carried out to defend the community against the threat of intruding Blacks would happen in middle-class, upper-class, and even affluent White neighborhoods. A related observation is made by Ed Dunbar (2004) who examined the patterns of hate crime in Los Angeles. Dunbar found that African-Americans and persons of Asian-Pacific descent were more likely to be victimized by hate crime while in their own neighborhoods. However, despite the fact that targeting occurred in the Downloaded by [University of Defence] at 01:44 24 May 2016 22 Introduction: an overview communities in which they resided, these victims were also living in areas where Blacks and Asians were less than 20 percent of the population. In such environ - ments, they were very visible and therefore more easily targeted.

Hate crime settings—the workplace and the campus In the preceding section we reviewed elements of where hate crimes occur, including time and place, location, and the reality of the neighborhood as a rel - evant context for hate crime occurrence. We now turn to two additional settings, the workplace and the college campus to gain a sense of how and why hate crimes occur in these environments.

The workplace setting What is meant by hate crime at the workplace? Does this simply refer to victims being targeted by White supremacists while at work or because they do work?

Do such acts require that the perpetrators be employees at the same workplace?

Or could it only reflect the place at which the crime occurs—that the defining element is that the victim is at work or leaving the workplace at the time of the attack? The US Department of Labor’s Occupational Safety and Health Adminis - tration (OSHA) defines workplace violence as: “violence or the threat of violence against workers. It can occur at or outside the workplace and can range from threats and verbal abuse to physical assaults and homicide.” This definition suggests that workplace violence is merely indicative of where the crime occurs. It is not required to mean that the crime occurs because of the workplace. However the US Department of Agriculture offers a more specified definition A number of different actions in the work environment can trigger or cause workplace violence. It may even be the result of non-work-related situa - tions such as domestic violence or “road rage.” Workplace violence can be inflicted by an abusive employee, manager, supervisor, co-worker, customer, family member, or even a stranger. There may be a greater connection, however, between the place of employment, the victim, and the perpetrator in hate crimes. As mentioned earlier, hate crime is frequently about efforts to control social place, both real and symbolic. Perhaps for some perpetrators, contending with a new female, Muslim, or homosexual supervisor is too much to tolerate. Presently, too little is known about hate crime in the workplace. It is another area that requires systematic and sustained examination. The following two examples illustrate hate crimes that occurred in, around, or because of the workplace. The Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma housed over 500 employees. It was home to various federal offices including the Federal Bureau of Investigation (FBI), the Bureau of Alcohol, Tobacco, and Firearms (ATF), the Drug Enforcement Administration (DEA), the Social Security Administration and Downloaded by [University of Defence] at 01:44 24 May 2016 Introduction: an overview 23 others, as well as a day care center. The building and its employees was targeted by Timothy McVeigh, who set off a strategically placed truck bomb killing 168 indi - viduals, 19 of which were children, on April 19, 1995. Clearly an act of domestic terrorism, this act arguably is also an example of workplace hate crime. McVeigh was strongly motivated by animus towards the US federal government and all that it symbolized to a mindset immersed in anti-government, militia, and White suprema - cist ideologies (Levitas, 2002). He attacked federal employees due to his hatred of the government and its representatives. It appears that he attacked them in, around, and certainly because of the workplace and what it represented to him. On July 28, 2006, the Jewish Federation of Greater Seattle building was the scene of a workplace hate crime in Seattle, Washington. Naveed Afzal Haq entered the building armed with semi-automatic handguns. He shot six people, killing one because of his hatred for Israel and Jews. Among the multiple felo - nies charged was malicious harassment, the state’s felony charge for hate crime (The Seattle Times , 2006). In this instance, the perpetrator selected this work site because of what it represented and his focus on targeting Jews. Both of these events are examples of the most violent workplace hate crimes; other workplace incidents are less severe. “SANFORD, NORTH CAROLINA:

The owner of a grocery store in Sanford, North Carolina, made racial comments and threatened to kill a Black couple if they did not leave the store. The proprietor reportedly said, “You niggers are trespassing. Those people only come in a store to steal.” The store owner was arrested and charged with ethnic intimidation ( The Race Relations Reporter , December 23, 2009). In 2009, 168 Black and Hispanic employees of Colorado’s Albertson Supermarket chain were awarded nearly $9 million dollars in a class action lawsuit filed by the Equal Employment Opportunity Commission. The lawsuit described reprehensible incidents of racial harassment, taunting, unequal treatment and other unconscionable acts. Racist graffiti was com - monplace; drawings depicting Blacks lynched; hanging stuffed animal monkeys were routinely placed in the work spaces; and the word nigger was scrawled on walls. Hispanics were directly referred to as ‘border jumpers’ and subjected to poor treatment. A Black male employee suffered an on the job injury, his leg crushed by a piece of equipment. He was left in that condition for 30 minutes on the floor and was told that’s what he deserved for being Black (7News Denver). These bias motivated acts occurred in or around the workplace but are illustrative of the more typical hostile acts that occasionally take place in these settings.

The college and university campus setting Institutions of higher education generally seek to empower students; to help them realize their potential and to equip them with the skill sets necessary for success in their chosen fields. These are not environments where one would expect to see crimes motivated by bigotry and hatred. However, as indicated earlier, these settings are not immune. In fact, the US Department of Justice has brought civil rights actions against non-students, former students and current students who have committed hate crimes against other students. The following cases reported Downloaded by [University of Defence] at 01:44 24 May 2016 24 Introduction: an overview by the Center for the Prevention of Hate Violence (2001) illustrate the nature of these crimes on US campuses: United States v. Samar. James Samar, a college student, was indicted on three counts of using threats of force to interfere with the federally protected rights of three students attending a small Massachusetts college. Samar used anti-Semitic slurs, threatened two fellow students, and threatened to kill one fellow student. In addition, he delivered photographs of holocaust victims to one student and stated, among other things, that the photographs were “a reminder of what happened to your relatives because they too made a mock - ery of Christianity.” Samar entered a plea agreement (3).

United States v. Little . The defendant, Robert Allen Little, was charged with igniting a homemade pipe bomb in the dorm room of two African-American students on a campus in Utah. The bomb caused extensive damage to the building and destroyed the belongings of both students. After the bombing, Little returned to the dorm and left a threatening and racist note on the door of another African-American student. Little was sentenced to 12 years in prison, fined $12,000, and ordered to pay restitution (4). These examples are representative of the most serious and rarest campus hate crimes. More common are incidents that do not rise to the level of a crime and are at best, acts of prejudice. The Department of Justice describes such acts as mostly “degrading language and slurs by . . . students directed toward people of color, women, homosexuals, and Jews” (US Department of Justice, 2001, 6).

Are hate crimes really distinctive crimes?

In what ways might hate crimes be considered different from conventional crimes?

In the perpetrator’s intent . Some perpetrators commit hate crimes without pos - sessing a well-formed ideology that fuels these actions. Rather, they seek peer approval, or thrill and exhilaration from harassing and attacking others viewed as weak and vulnerable (Levin & McDevitt, 2002). However, other perpetrators have a focused intent, even an agenda to intimidate, threaten, and ultimately con - trol the individual victim, and to message the members of the victim’s community (Hamm, 1994; Miethe & McCorkle, 1998). For these perpetrators, their crimes are committed in order to conform the social landscape to that which subordinates racial, sexual, ethnic, religious, and other minority communities while ensuring the “superiority” of White heterosexual males (Perry, 2001). Ultimately, hate crimes seek to compromise the civil liberties of targeted victim groups. This aim is unlike traditional crime. In the nature of its impact on the victim . Garcia & McDevitt (1999), Herek, et al. (2002), McDevitt, et al. (2001) and others have reported on the perceived seriousness of hate crime victimization and related issues according to victims.

Much of the literature underscores the fact that the trauma experienced, both physical and psychological, is more deleterious than that suffered by victims of comparable non-hate crime acts.Downloaded by [University of Defence] at 01:44 24 May 2016 Introduction: an overview 25 In the nature of its impact on the victim’s community. The repercussions of hate crime attacks extend well beyond that of the immediate victim. The victim’s community becomes more aware that safety is less sure as persons who share their skin color, sexual orientation, ethnicity, religion, or disability are targeted.

Moreover, if members of the victim’s community begin to alter their habits and not venture into certain locations or they begin to travel in groups for safety, moving quickly through areas where they now feel less welcomed, then a major concession has occurred and the perpetrator has won a battle. These communities have become more wary, more distrustful, and more isolated. Its historical relevance . Hate crimes further distinguish themselves in two important areas: (1) the historical continuity of hate crime victimization of racial minorities, Jews, Hispanics, and homosexuals; and (2) the complicity of main - stream institutions and cultural practices in the victimization of these groups (Pet - rosino, 1999; Boeckmann & Turpin-Petrosino, 2002). Given these factors, the harm factor in hate crimes is evidently distinctive from non-bias crimes. As a result of these four distinguishing characteristics, hate crimes may pos - sess qualities that well justify their criminalization and punishment as a unique category of crime.

Chapter summary points • Hate crimes are offenses committed due to the perpetrator’s prejudice against a particular group represented by the victim. The most common categories of prejudice include ethnicity, race, national origin, religion, sexual orienta - tion, disability, or gender. Hate crimes are comprised of two components, (1) the predicate or base offense, and (2) the perpetrator’s prejudice against the group represented by the victim. • While a victim may hold multiple memberships to two or more targeted groups, it is the perpetrator’s perception of the victim that determines the hate motive. • The majority of hate crime acts are aimed at individuals from social groups that have been historically subjected to institutionalized discriminatory treatment. • Hate crime laws were enacted to address a disturbing increase in hate- motivated criminal acts during the 1980s in the United States. • There are several differences between federal civil rights laws and hate crimes stat - utes. Essentially, federal civil rights laws are applicable when there is interference with an individual engaging in constitutionally protected activities; whereas hate crime statutes address the harming of individuals because of their race, ethnicity, and so on, regardless of the victim’s activity. Federal civil rights laws are handled by federal prosecutors in federal courts, whereas state and local hate crime laws are administered by the local district attorney and state level or lower courts. • Hate speech is generally protected by the First Amendment. However, speech that directly threatens a targeted individual or organization is criminal and is not protected speech. • There are acts that are clearly motivated by prejudice, even hatred, but they are not illegal. A hate crime must involve a criminal offense (for example, assault, malicious damage) that is motivated by bias.Downloaded by [University of Defence] at 01:44 24 May 2016 26 Introduction: an overview • The term “hate crime” is appropriate. The deeply personal nature of these attacks and the intense disregard of the victim’s humanity all say to the victim that they are the victim of intense animus or hatred and not simply bias. • National hate crime data primarily come from two sources, Uniform Crime Reports (UCR) and the National Crime Victimization Survey (NCVS). There are limitations in both data sources. The UCR reflects only reported crimes, and despite a high number of police agencies participating in the program, there is not yet 100 percent participation. The NCVS data is based on vic - timization surveys of a national sample of households. Limitations include the failure of interviewees to recall facts accurately (or at all) or confusion or misinterpretation of an event and the reluctance to divulge a victimization experience to an interviewer. • Hate crimes are distinct from conventional crimes in the following areas:

(1) the perpetrator’s intent; (2) impact on the victim; (3) impact on the vic - tim’s community; and (4) historical relevance.

Case study 1.1 Citizens’ band radio and hate crime When is talk just talk and when is it a crime, especially a hate crime? The Ninth US Circuit Court of Appeals clarified that when it upheld the convic - tion of Bradley Smith whose words and actions constituted a hate crime.

Smith, as well as the victim, Alfred Henderson were participants in the citi - zens’ band (CB) radio culture of Modesto, California. But Smith used CB radio to threaten Henderson, an African-American and his family. Smith would routinely use racial slurs (N-word) and epithets aimed at Henderson; he also threatened to burn a cross on his property, throw Molotov cocktails on the property, sexually abuse his wife and then to lynch him by hang - ing. These threats persisted over two years and culminated with Smith again taunting and threatening harm to Henderson, his wife and the rest of his family, and that he and a number of Whites were going to come to his home to attack them. Henderson then called the police, and Smith and a group of other Whites did come to the house. Smith’s motivation was to intimidate the Henderson family and encourage them to move out of the community.

Eventually they did just that. Although the Stanislaus County prosecutor declined to pursue charges against Smith, federal prosecutors did. Smith was convicted and sentenced to six and a half years for civil rights violations. (Source: www.sfgate.com/cgi-bin/article.cgi?f =/c/a/2010/ 02/12/BAVI1C0T8B.DTL, Accessed February 14, 2010) Discussion questions 1 Identify what elements in this action indicate that a hate crime had occurred. 2 Why didn’t the First Amendment protect Smith’s comments over the CB radio? 3 Do you agree that federal prosecutors should have filed charges, even when the county district attorney chose not to?Downloaded by [University of Defence] at 01:44 24 May 2016 Introduction: an overview 27 Bibliography 7News Denver. (n.d.). December 15, 2009. Albertsons Settles $8.9 Million Racial Discrimina - tion Lawsuits. Available from www.thedenverchannel.com/news/albertsons-settles-8-9- million-racial-discrimination-lawsuits [Accessed March 5, 2015]. 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Available from https://www.ncjrs.gov/pdffiles1/ bja/187249.pdf [Accessed March 5, 2015]. US Department of Labor’s Occupational Safety and Health Administration (OSHA). (2002). OSHA Fact Sheet. Available from www.fbi.gov/ucr/hc2004/appendix_a.htm [Accessed February 1, 2010]. Victims of Crime. (n.d.) When And Where Does Violent Crime Happen? Available from www.libraryindex.com/pages/447/Victims-Crime-WHEN-WHERE-DOES-VIO - LENT-CRIME-HAPPEN.html#ixzz0lSSh9UAP [Accessed February 7, 2015]. Zeskind, L. (2009). Blood and Politics: The History of the White Nationalist Movement. From the Margins to the Mainstream . New York: Farrar, Straus, and Giroux.Downloaded by [University of Defence] at 01:44 24 May 2016 2 A history of hate in the United States Perpetrators of hate crime see their victims as inherently inferior people. Intruders in their world who are unworthy or somehow undeserving of the equality, justice, or freedom guaranteed by the Constitution due to reasons of race, religion, sexual orientation, or other status condition. Should hate crimes achieve their intended effects, the civil liberties afforded to some segments of the US population would become moot or non-existent. Hate-motivated acts are as much a part of America’s past as other events that are usually written about in history books. There are many acts that occurred in the past that would well qualify as hate crimes had they occurred in the twenty- first century. As stated previously, hate crimes are crimes that manifest evidence of prejudice based on categories such as race, religion, sexual orientation, gen - der, ethnicity, and disability. Despite the fact that hate-motivated acts of the past were virtually identical to modern hate crimes in motive, intent, and sometimes in manner, for the most part they were not criminalized acts. Moreover, although hate-motivated acts have occurred in the United States for the last 400 years, what has society learned from them? Is there anything about those events that can shed light on modern hate crimes? This chapter provides a historical perspective of hate crime in the United States. Because the scope of this topic cannot be suffi - ciently addressed here, this chapter will only identify broad similarities between historical and modern hate-motivated acts and related factors. I also argue here that these historical events are very relevant to the understanding of present-day hate crime. In addition, this chapter explores the question of whether modern hate crimes are a consequence of historical hate crime patterns and whether such pat - terns are possibly predictive of developing trends in hate crimes.

A hate crime is a hate crime is a . . . On a beautiful autumn afternoon, a group of individuals going about their daily rou - tine were suddenly and viciously attacked in their own community by those who viewed the individuals as threatening. The aim of the attackers was to send a mes - sage: these individuals were not welcomed there, despite living separately, because of their difference , inferiority , and dangerousness . The attack nearly accomplished the murder of most of the male members of the group, including children.Downloaded by [University of Defence] at 01:44 24 May 2016 A history of hate in the United States 31 This incident, the Haun’s Mill massacre, occurred on October 30, 1838, in Caldwell County, Missouri. The victims were Mormons. The perpetrators were local militiamen, who may have been inspired to commit this act by Missouri’s Governor who earlier issued an extermination order against Mormons (Denton, 2003). Although this event occurred over 150 years ago, it possesses characteris - tics of modern-day hate crimes. Mormonism was viewed with suspicion and those that practiced this religion were viewed as threatening. Mormons were attacked by individuals, citizen groups, and finally governments. They were persistently subjected to harassment and banishment, even their extinction was periodically sought. Today, Mormons number in the hundreds of thousands and they live peacefully throughout the United States; yet their history includes being the tar - get of hate-motivated acts for decades. There are many historical incidents that resemble the hate crimes of today. The targeting of others due to their religion, ethnicity, race, or other perceived differences has been a common occurrence throughout American history (Feagin, 2001; Perlmutter, 1992).

America’s past—when hate crimes were not Many bias- or hate-motivated acts were not considered illegal during the dis - tant past (Jordan, 1968; Miller, 1979; Petrosino, 1999; Stampp, 1956; Steinfield, 1973; Takaki, 1994a, 1994b; Wells-Barnett, 1969). The likely reasons for this includes the absence or limited constitutional or statutory protections afforded to victims, the devaluation of their very personhood according to the social norms of that time, and the direct role of governments and other legal authorities in hate- motivated actions (Petrosino, 1999). While acts such as assault, theft, murder, and rape were crimes under the common law, (which is the historical basis for Ameri - can jurisprudence), these same acts were less likely to be viewed as criminal when motivated by racism, ethnocentrism, or classism (Hoffer, 1992; Jordan, 1968; Per - lmutter, 1992). Few would argue that the common law was utilized to protect the poor or racial and ethnic minorities to the same extent as White native-born property-owning males (Mann, 1993; Perlmutter, 1992; Steinfield, 1973; Takaki, 1994a, 1994b; Walker, et al. 1996). General characteristics of modern hate crime includes: (1) victims are more likely to be members of racial and or ethnic minority groups (Bureau of Jus - tice Assistance, 1997; Hamm, 1994); (2) victim groups tend to be less advan - taged economically and politically, relative to the majority group (Hamm, 1993); (3) prevailing cultural values and traditions situate victim groups as suitable for discriminatory and unequal treatment (Perry, 2001); and (4) victim groups are perceived as a serious threat to the quality of life of the dominant group (i.e., social hegemony, economic stability and/or physical safety); (Levin & McDe - vitt, 1993; Ridgeway, 1990; Herek, 1992; Hall, 2013). The historical incidents selected for this examination possess some of these attributes and are drawn from among the historical experiences of racial and ethnic minority groups in Amer - ica. This approach aids comparative analysis efforts, an objective in this chapter.

Nevertheless, it is important to state strongly that hate-motivated acts were not Downloaded by [University of Defence] at 01:44 24 May 2016 32 A history of hate in the United States experienced solely by members of racial and ethnic minority groups (the Irish were also the victims of deplorable systematic discrimination, as were Catholics), however historical records describing the mistreatment of these groups is well documented in the literature due to the constancy and extreme nature of their victimization.

Historical incidents and the evolution of hate crime Pre-Civil War Many historians describe the early contacts between European settlers and Native Americans as non-violent and even mutually beneficial (Abbot, 1975). However, the relationship between these groups changed with the increasing efforts of col - onists to homestead and take tribal land, often in unfair ways (Sanders, 1978; Spindler, 1972; Steinfield, 1973; Tebbel & Jennison, 1960). As Native Ameri - cans resisted White encroachment, interferences with their sovereignty, and the deceptive practices of colonists, they found themselves demonized (Harjo, 1998; Riding In, 1998). Anti-Indian sentiments became prominent in early American cul - ture, political discourse and governmental policies. Jacksonian democracy, which shaped cultural and social practices and political thought from the 1820s to 1860s exemplifies these convergent social forces. Berlet and Lyons (2000) describe Jacksonian perspectives as advocating “an inclusive class ideology of White male egalitarianism with the hard racism of exclusion, terror, and suppression toward people of color” (42). Expansionist efforts during that time were rational - ized by this chauvinistic ideology. This social climate facilitated egregious hate- motivated acts against Native Americans.

The near-genocide of the Yuki and Cheyenne Indians—anti-Native American acts The Yuki of northern California numbered approximately 5,000 when first encountered by White settlers in 1848. By this time period in American history, atrocities and inhumane treatment was routinely committed against Native Amer - icans by settlers, local authorities, and the US Cavalry in the form of kidnapping, theft, fraud, forced indentured servitude, sexual assault, starvation, and murder (Hendricks, 2006; Riding In, 1998). Targeting the Yuki for similar treatment, unfortunately, was not unusual. In fact, military records indicate interest in their extermination in order to increase White settlements (Gundersen & Smelser, 1994; Miller, 1979). With the execution of planned attacks authorized by California’s Governor Peter Burnett, the Yuki lost 90 percent of their population in a 32-year period (Chalk & Jonassohn, 1990). The Cheyenne were victims of similar acts, as described in the 39th U.S. Congressional Record , 2nd session, Senate Report 156. The following is an account of a mass murder that occurred on November 28, 1864, as told by eyewitness Robert Bent:Downloaded by [University of Defence] at 01:44 24 May 2016 A history of hate in the United States 33 When the troops fired, the Indians ran. . . . I think there were six-hundred Indians in all. . . . about sixty [men]. . . . I saw five squaws under a bank for shelter. . . . but the soldiers shot them all. . . . There seemed to be indiscrimi - nate killing. . . . There were some thirty or forty squaws collected in a hole for protection; they sent out a little girl about six years old with a white flag. . . . ; she had not proceeded but a few steps when she was shot and killed. . . . I saw one squaw cut open with an unborn child. . . . I saw the body of a leader, with the privates cut off, and I heard a soldier say he was going to make a tobacco pouch out of them. (Brown, 1970, 73) Few would disagree that these acts were at least in part racially motivated.

Evidence of racial animus toward Native Americans permeated American culture at that time, and these brutal acts clearly indicate a potent disregard of the victims’ humanity (Berthrong, 1963). Sentiments toward Native Americans during that time are captured by the astounding fact that it was not until 1891 that the US Supreme Court declared that Indians were human beings (Kennedy, 1959). The commodification of Black Africans: slavery—anti-Black acts Early observations of Africa and African people were articulated through a Euro - centric perspective (Fredrickson, 1991; Jordan, 1968; Pieterse, 1992). When eco - nomic profit became a driving force for furthering the New World and slavery the crucial means, a particular image of the African was needed. African skin color and non-Christian religious practices made it simpler to cast the African as an uncivilized pagan and to associate Blackness with negativity, evil, and unworthi - ness (Jordan, 1968). It became the norm in White culture to associate being Black with the conditions of inferiority. As early as 1625, being African became synonymous with being enslavable. However, the treatment of Africans in a debased and discriminatory manner pre - dated institutionalized slavery in Colonial America. With the advent of legalized slavery in the colonies and the enactment of the Black Codes in 1640, Blacks became distinguished from all other groups in America (Morris, 1996). These con - sistent social and legal practices reinforced racial animus and prejudiced attitudes toward this group. Once slavery was well established, it received the legal status of perpetual (Jordan, 1968), making the loss of freedom lifelong and complete. The status of children born to slaves was clarified when slavery was defined by law as an inherited condition (Higginbotham, 1978). Despite the overwhelming totality of slavery as an institution, slaveholders employed various techniques to force Blacks to accept their condition. These techniques included acts of kidnap - ping, assault, torture, inhumane treatment (because slaves were viewed as chattel and not as human beings), rape, and psychological abuse. These acts were at least in part racially motivated and largely viewed as innocuous considering the pre - vailing social norms of that time.Downloaded by [University of Defence] at 01:44 24 May 2016 34 A history of hate in the United States Kearneyism—anti-Asian Acts Asian laborers were invited to the United States in the 1800s as workers in large scale labor projects including the construction of the California Central railroad and the Transcontinental railroad (Healey, 1995). Initially viewed as an indus - trious people, the images of Asians soon deteriorated for several reasons. Ideas advocated by the eugenics movement (which began as earlier as the 1880s) cen - tered on racial classifications and social practices needed to ensure a racially supe - rior America. Non-European groups, such as Asians, did not fare well in these proposals. Some contended that the adult Mongoloid was equivalent to an ado - lescent Caucasian (Gould, 1981). In fact, many stereotypes used to depict Native Americans and Africans were also used against Asians: White workers called the Chinese “nagurs” [ sic ], and a magazine cartoon depicted a Chinese man as a bloodsucking vampire with slanted eyes, a pig - tail, dark skin, and thick lips. Like blacks, the Chinese were described as heathen, morally inferior, savage, childlike, and lustful. Chinese women were condemned as a “depraved class” and said to resemble Africans. (Takaki, 1994b, 66) The industrious nature of the Chinese, their ability to earn a wage, and even own a business incurred resentment from others. Their successes were viewed by many as threatening. Several states enacted laws during the 1800s to constrain Asian liberties. These statutes initially segregated them and culminated in an effort to banish Asians from the United States. The pervasiveness of anti-Asian sentiments during this period is well documented. Consider the sentiments expressed by President Theodore Roosevelt (1901–09) who believed that America should be preserved as a heritage for Whites and that Asians should not live here (Takaki, 1994b). The Native Sons of the Golden West, a nativist organization that vigorously sought to minimize the presence of racial minorities in California, is accredited with the following statement (Chronister, 1992): “the state of California should remain what it had always been and God himself intended it shall always be—the White Man’s Paradise. . . . the 31st star shall never become dim or yellow” (pp. 40–41). Asian unemployment surged at the completion of the railways but was short-lived. Many took jobs that Whites declined, or they started their own businesses. While Asians found steady work, White unemployment became a growing problem. Labor leader Denis Kearney and others inflamed anti-Asian sentiments by consistently arguing that Chinese workers caused White unemployment (Steinfield, 1973). The scapegoating of Asians by Kearney, along with pre-existing norms of racial prejudice, created an atmosphere that prompted spontaneous acts of racially motivated violence. During this period Asian businesses were vandalized or destroyed and individuals were robbed, assaulted, and murdered. In 1871, 22 Chinese were hung by a mob in Los Angeles (Perlmutter, 1992). Because Asians lacked basic civil liberties, (see People v. Hall , 1854), little was done through the courts to respond to their victimization. Downloaded by [University of Defence] at 01:44 24 May 2016 A history of hate in the United States 35 In fact, the murder of Asians became so casual that the print media frequently chose not to report its occurrence (Steinfield, 1973; Takaki, 1994b). These acts, which were motivated by ignorance, resentment, and racial animus were carried out with impunity and sent an unmistakable message to Asian communities.

Post-Civil War Lynching: anti-Black acts Named after Charles Lynch, who popularized the act during the eighteenth cen - tury, lynching, or lynch law, is the unlawful killing of an individual thought to have violated important social norms and/or the law. These extra-legal acts were usually carried out publicly by citizen mobs. Although Whites and other minorities were also lynched, (e.g. in the Southwestern part of the US more Mexi - can Americans were lynched than Blacks between 1865 and 1920, [Perlmutter, 1992]), overall Blacks were disproportionately the recipients of these actions. The victimization rate of Blacks in southern states is reported to have been 350 per - cent greater than that of Whites (Cutler, 1969; Dennis, 1984; Garraty & Foner, as cited in Levin, 2002; Wells-Barnett, 1969). Historical records reflect how eas - ily Blacks were selected for lynching (Wells-Barnett, 1969): “John Hughes of Moberly (Missouri) and Isaac Lincoln of Fort Madison (S. Carolina) and Will Lewis in Tullahoma, Tenn. suffered death for no more serious charge than that they were ‘saucy’ to white people” (p. 17). The casual nature of Black lynching reveals the ubiquitous nature of the racial animus existing at that time. Perlmutter (1992) states that “lynching was so common it was impossible to keep accurate accounts” (p. 151). The following is an eyewitness report of a July 15, 1921, lynching in Moultrie, Georgia that was published in a local newspaper: Williams was brought from Moultrie on Friday night by sheriffs. . . . Saturday court was called. . . . The trial took half an hour. Then Williams, surrounded by fifty sheriffs armed with machine guns, started out of the courthouse door toward the jail. . . . 500 poor pecks rushed the sheriffs, who made no resist - ance. . . . They tore the negro’s clothing off. . . . The negro was unsexed, as usual, and made to eat a portion of his anatomy. . . . The negro was chained to [a] stump. . . . The pyre was lit and a hundred men, women, old and young. . . . joined hands and danced around the negro while he burned. (Steinfield, 1973, 40–42) Ku Klux Klan: the first hate group (first and second eras) The idea of Black equality and participation in the democratic process through the vehicles provided by Reconstruction was repugnant to many White Southerners.

To hinder these developments, a group of veterans of the Confederate army formed the Ku Klux Klan in 1866 in Pulaski, Tennessee. A secret society, the Klan uti - lized violent terroristic tactics to stop Blacks from exercising newly gained civil Downloaded by [University of Defence] at 01:44 24 May 2016 36 A history of hate in the United States liberties and to restore White control over every major aspect of Black life. Black community leaders as well as sympathetic Whites where particularly targeted. In practicing these strategies, the Klan laid the foundation for the White suprema - cist movement in the United States. Historically, the Klan demonstrated three distinct periods of onset activity, which occurred in 1866, 1915, and 1954. Dur - ing the first period, the Klan is suspected of having murdered over 1,500 Blacks in Georgia alone (Berlet & Lyons, 2000). The second period saw an increase in Klan membership with new members from among the more affluent and edu - cated. Estimates of membership indicate a peak of nearly five million during this period (Dobratz & Shanks-Meile, 1997; Potok, 2001). Despite the Klan’s ability to wield political influence, even on the national level, as well as obtaining a measure of respectability in the eyes of many, members frequently engaged in violent hate-motivated behavior. Only now, Roman Catholics, Jews, and other Whites who were empathetic to the plight of Blacks and others were added as legitimate targets.

The Leo Frank Lynching and related incidents—anti-Semitic acts Anti-Semitic attitudes existed in the USA as far back as the Civil War (Diner, 2004). Since then, the scapegoating of Jews, the establishment of Jewish quotas, the portrayal of Jewish religious practices as sinister, and the committing of vari - ous discriminatory acts against them were commonplace. As mentioned earlier, the resurgence of the Ku Klux Klan, beginning in 1915, saw the targeting of Jews residing in the South and Midwest: “A whole new breed of hatemonger developed on the American scene [at that time] that thrived on the spread of hate propaganda against Jews” (Steinfield, 1973, 162). The National Pencil Company in Atlanta, Georgia was the site of the rape and murder of 14-year-old employee Mary Phagan. Despite dubious evidence, Jewish owner Leo Frank was charged with her murder and placed on trial. As the trial was conducted, local newspapers waged blatant anti-Semitic campaigns against Frank. He was convicted and sentenced to death, but his sentence was later com - muted to life by Georgia’s governor. An action not well received by many. On August 16, 1916, while Frank was housed in Milledgeville Prison, a group of 25 men entered, overpowered guards, and removed him. After driving to Marietta, Georgia, the group lynched Frank by hanging. His murder was representative of the stark determination and boldness of those motivated by anti-Semitism and hatred.

Residential move-in violence—racially motivated acts Beginning in the 1890s, Blacks began to leave the rural areas of the South for northern cities. A half million relocated during World War I, and approximately six million more followed after the war through the 1960s (Meyer, 2000). Along with the potential for a better life, migration also meant that victimization would no longer occur just in the South. Most Blacks settled in major metropolitan areas Downloaded by [University of Defence] at 01:44 24 May 2016 A history of hate in the United States 37 in the North that were largely racially segregated. Black families made economic gains, but seeking better neighborhoods meant moving into predominately White residential areas, which was met with great resistance. When White initiatives, such as opportunistic zoning regulations, improvement associations, and race-restrictive covenants, failed to maintain segregated neighborhoods, threats and violence was the next strategy employed. Black families were frequently subjected to racially motivated harassment and intimidation. Meyer (2000) provides an account of the notes received by a Black family that moved into a White area of Brooklyn: If you move into that house, one warned, it will be the worst days [ sic ] work that you ever did. . . . You should know better than to move where you are not wanted. Another letter came from the Klan. There are five of us for each Nigger on Staten Island. (Meyer, 2000, 34) Detroit saw appalling racial violence as Black families attempted to settle into more pleasant neighborhoods occupied by White families. Meyer notes (2000, p. 37), “In early July, a mob of about 1,000 whites gathered to taunt the family of John Fletcher, which had recently moved to a white block on the city’s west side. Demonstrators yelled, ‘lynch him. Lynch him.’” Chicago violence was far worse than that which occurred in New York and Detroit. Fifty-eight racially motivated bombings occurred in the city between 1917 and 1921. Perpetrators targeted persons due to race and used threats and violence to attempt to maintain the status quo of racial segregation.

The civil rights era The Ku Klux Klan’s third era—resisting Black equality Prior to Brown v. the Board of Education (1954), Black life was encumbered by two US Supreme Court decisions: Dred Scott v. Sandford (1857) and Plessy v. Ferguson (1896). In the Scott decision, the court established that people of Afri - can descent could never be citizens of the United States and were little more than objects of property. Approximately 40 years later, the Plessy decision established the legal doctrine of separate but equal, prescribing segregated public facilities.

Together, these decisions codified and affirmed White supremacy and Black subordination in America. However, the Brown decision upended both Scott and Plessy . The Supreme Court decision in Brown announced that segregation was inherently unequal and violated the equal protection clause of the 14th Amend - ment. The modern Civil Rights Movement thus began, as well as the resurgence of hate-motivated crimes. Backlash from Brown took many forms, such as the publication of the 1956 Southern Manifesto. Signed by 100 US senators and congressmen from eleven southern states, the manifesto stated that the signing members were committed to “resist forced integration by any lawful means” (Dudley, 1996, 70). The fear Downloaded by [University of Defence] at 01:44 24 May 2016 38 A history of hate in the United States that integration would lead to “racial mixing” and in turn the demise of the White race, was a common belief among many in the United States. Alabama governor John Patterson reiterated his commitment to fight the Brown decision in his 1959 inaugural speech: I will oppose with every ounce of energy I possess. . . . any mixing of the white and Negro races in the classrooms of this state. . . . Any attempt by the federal government or anyone else to integrate the schools of this state by force would cause turmoil, chaos and violence. (Dudley, 1996, 78) These pivotal Supreme Court decisions that first denied and then established the civil rights of Black Americans reflect the turbulence surrounding the very idea of Black equality in the USA. With the Brown decision and the start of the Civil Rights Movement, racially motivated crimes occurred more frequently between 1954 and 1965. Much of the violence was Klan activity and included, according to the US Justice Department, “seventy bombings in Georgia and Alabama, 30 Negro church burnings in Mississippi, the sadistic castration of a black man in Birmingham, ten racial killings in Alabama, plus the . . . murders of three civil rights’ workers in Mississippi” (Sims, 1996, 95). This spree of violence is the third onset period of the Klan. The Mississippi White Knights were responsible for the most egregious terrorist attacks during this time. Klan leaders urged their members to engage in strategic attacks against civil rights participants.

Consequently “there were 80 racially motivated assaults, including 35 shootings, 20 church arsons, and five murders” (Bullard, 1993; Chalmers, 1981 as cited in Levin, 2002, 235).

The modern age of hate crimes The fundamental elements that form the social conditions that facilitate hate crimes arise from historical patterns of racial and ethnic discrimination and violence. Today, hate crimes range from malicious damage to property, verbal threats and intimida - tion, to assaults and murder—all predicated on the perpetrator’s hostility toward the social group represented by the victim. Most modern hate crimes are relatively con - sistent in presentation, but there are emerging patterns that may have implications not just for today—but also for the evolving nature of these crimes. These patterns include the growing commonality of the globalization of hate groups, the exploita - tion of the US military by hate groups, the violent nature of younger participants in the hate movement, and the real potential for mass casualties in hate-motivated attacks. We now turn to take a brief look at each of these developments.

Globalization As early as the 1960s, leaders of the American Nazi Party met periodically with European national socialists (Simonelli, 1999). Today, the Internet makes contact Downloaded by [University of Defence] at 01:44 24 May 2016 A history of hate in the United States 39 between hate groups effortless. According to some reports, members of US- based hate groups are associating more frequently with their European counter - parts (Anti-Defamation League, 1995; Southern Poverty Law Center, 2001). The Federal Bureau of Investigation (FBI) has long reported links between American hate groups and Middle-Eastern state-sponsored terrorist organizations (Levin & McDevitt, 1993; Sloan, 1997). These efforts towards building and strengthening international relationships is encouraged by pan-Aryanism, an ideological belief in the hate movement that describes a world-wide struggle of Whites against the “destructive” forces of Jews, racial minorities, and the evils of capitalism (Rock - well, 1967).

Exploitation of the military High-profile crimes involving White supremacists serving in the US military uncovered a number of alarming developments. First, the strategy of some hate groups to locate near military bases in order to actively recruit servicemen and women; second, that there are neo-Nazis and other White supremacists who were actively serving in the US military and; third, that the military chain of command would often disregarded these events, even the displaying of Nazi flags and other similar regalia in living quarters (Leyden & Cook, 2008). David Holthouse (2006) stated in a recent article published in the Intelligence Report : In 1996, following a decade-long rash of cases where extremists in the mili - tary were caught diverting huge arsenals of stolen firearms and explosives to neo-Nazi and white supremacist organizations, conducting guerilla train - ing for paramilitary racist militias, and murdering non-white civilians . . . , the Pentagon finally launched a massive investigation and crackdown. One general ordered all 19,000 soldiers at Fort Lewis, Wash., strip-searched for extremist tattoos. But that was peacetime. Now, with the country at war in Iraq and Afghanistan, and the military under increasingly intense pressure to maintain enlistment numbers, weeding out extremists is less of a priority.

Recruiters are knowingly allowing neo-Nazis and white supremacists to join the armed forces, and commanders don’t remove them from the military even after we positively identify them as extremists or gang members, said Depart - ment of Defense investigator Barfield. The FBI has documented the presence of former and current US military personnel in the White supremacist movement. They report that “military experience is found throughout the White supremacist movement as the result of recruitment campaigns by extremist groups and self-recruitment by veterans sympathetic to White supremacist causes. Extremist leaders seek to recruit members with military experience in order to exploit their discipline, knowledge of firearms, explosives, and tactical skills and access to weapons and intelligence,” (3). In addition, the FBI has documented instances were military personnel have “volunteered” their “professional resources,” for the cause (4) (see Figure 2.1 ).Downloaded by [University of Defence] at 01:44 24 May 2016 40 A history of hate in the United States Currently the military touts a zero-tolerance policy regarding enlisted person - nel participating in hate groups as a result of the fallout from the hate-motivated crimes committed by ex-serviceman Timothy McVeigh (Oklahoma City bomber) and enlisted men James Burmeister and Malcolm Wright (Ft. Bragg/Fayetteville murders) (Kifner, 2006; Potok, 2006). Extremist groups seek to recruit those actively serving as well as those who have been discharged. Individuals with a military background have been trained in weaponry, explosives, combat skills, and may also have access to arsenals.

Youth involvement According to the Bureau of Justice Statistics’ National Incident-Based Report - ing System, nearly 40 percent of hate crime offenders are under the age of twenty-five. Neo-Nazi skinheads, who are among the most violent hate crime perpetrators (Dobratz & Shanks-Meile, 1997; Hamm, 1993), also have the young - est memberships (Hamm, 1993; Wooden, 1994). Leaders of racist skinhead groups have directly appealed to youth through music. The Anti-Defamation (REPOR TING ON 203 PERSONS FR OM OCT OBER 20 01–MA Y 20 08) CREA TIVI TY MO VEMENT 4% OTHER6% NA TIONAL ALLIANCE 29% AR YAN NA TIONS 8% SELECT KU KLUX KLAN GR OUPS10% NA TIONAL SOCIALIS T MO VEMENT 21% SELECT SKINHEAD G RO UP S 22% (U) Ser vice : F[3] Wh ite Supr emacist Extr emist subject major gr oup dase f les. Individuals h ave been ca tegor ized accor ding t o most r ecent g roup a ffliation. In cases of concurr ent multiple gr oup affliations , per sons ha ve been identif ed with the g roup with which the y ar e most activ ely in volved. (12) (7) (17) (20/203) (44/203) (45/203) (58/203) Figure 2.1 Distribution of military experience in post-9/11 White supremacist extremismDownloaded by [University of Defence] at 01:44 24 May 2016 A history of hate in the United States 41 League reports that these groups at times target high school newspapers to place ads for free music downloads (ADL, 2009). Those that respond to the offer are then exposed to White power music and the not very subtle bigoted messages it contains. According to the ADL report, this has occurred in high schools located in California, Indiana, and Montana. Such strategies have the objective of recruiting youth “to become soldiers in the war for White racial survival” (5).

An example of the messaging embedded is viewed in the title of the CD, Smash - ing Rainbows: Rock Against Homosexuality , and in the name of a song in this collection, Killer of Faggots by Evil Incarnate. The song includes the repeated use of slurs against Blacks and gays and calls for their violent killing. Despite the contemptible nature of such lyrics that are routinely found in this genre, White power music has several distributors and an audience who financially support it.

Potential for mass destruction Mod ern hate crime perpetrators have the capacity to cause large-scale destruc - tion single-handedly. In 1989, Patrick Purdy acquired a semi-automatic assault rifle and shot Asian children (as he saw the Asian community as responsible for the difficulties in his life) during recess in their Stockton, California ele - mentary school. Purdy wounded 30 children and killed 5 (Levin & McDevitt, 1993). Fifteen years later, in 2004, Demetrius Van Crocker with White suprem - acist involvement, was arrested for attempting to buy from an undercover agent ingredients for Sarin nerve gas along with C-4 explosives (SPLC, 2001). It is reported that he remarked, “it would be a good thing if somebody could deto - nate some sort of weapon of mass destruction on Washington, D.C.” (para - graph 63). An odorless and colorless agent, Sarin can be released into the air; and with sufficient exposure, it can cause devastating consequences, including many deaths. Crocker was sentenced to 30 years. In 2003, federal agents found a considerable arsenal held by William Krar in Noonday, Texas. The cache included 500,000 rounds of ammunition, multiple pipe bombs, remote-control briefcase bombs as well as hate literature (SPLC, 2001). In addition, Krar man - aged to acquire sodium cyanide along with the tools needed to weaponize it.

Police described this as “a sodium-cyanide bomb capable of killing thousands” (Christian Science Monitor , December 29, 2003). Finally, in December 2008, police discovered in the home of shooting victim and neo-Nazi James G. Cum - mings, “a cache of radioactive materials,” in his efforts “to build a radioac - tive dirty bomb, along with literature on how to build such a deadly explo - sive. Authorities reported that Cummings was very upset by the election of Barack Obama” (SPLC, 2001, paragraph 71). Clearly the capabilities of some hate groups or lone wolfs to acquire dangerous weapons show their threat potential. We now turn to examine similarities between historical and modern hate-motivated acts.Downloaded by [University of Defence] at 01:44 24 May 2016 42 A history of hate in the United States Comparing past and present patterns Before identifying distinctions among historical incidents, it is important to review the social conditions that appear to facilitate hate-motivated acts, both historical and modern. These conditions include the existence of: (1) dominant groups with cultural, political, and economic advantages that are not available to other groups; (2) subordinate groups lacking in the aforementioned resources and possess a lesser social standing according to the dominant groups; (3) a main - stream culture that ignores, devalues, demeans or mocks the cultural traditions of minority groups; (4) an underlying fear or suspicion of subordinate groups, which includes the notion that their existence negatively impacts the quality of life of others; and (5) authorities that fail to recognize and/or sufficiently address these dynamics, which inevitably lead to hate-motivated acts. The historical hate- motivated acts discussed earlier reflect these conditions, as do modern hate crimes.

Keeping these social conditions in mind, the following summaries reflect distinc - tions among the historical examples that nevertheless gave rise to the evolving nature of hate-motivated acts.

Summary: pre-Civil War • Victim groups were viewed as either interfering with or necessary to gov - ernmental policies. The intent to grow the nation geographically and eco - nomically placed the freedom and dignity of Native Americans, Africans, and Asians on a collision course with government objectives. • Majority groups generally supported racially motivated discriminatory gov - ernment policies as such policies also reflected the social norms and cultural beliefs of that time. • The confluence of the preceding factors produced conditions that facilitated innumerable destructive outcomes, including fatalities brought by hate- motivated acts. As a result, the so-called hate crimes from this period mostly resembled pogroms. Native Americans were almost totally obliterated, Afri - cans endured perpetual bondage and spontaneous lynching, and Asians were murdered because of their ability to survive economically. The most egregious racially motivated acts during this time period were carried out almost exclusively by governmental bodies or agents acting on behalf of local, state, or federal authorities and not extremist groups.

Summary: post-Civil War • Victim groups were targeted by smaller entities that were less likely to be directly connected to government authorities. • Perpetrators organized under the banner of White supremacy for the first time. The modern hate movement was born in 1866 with the formation of the Ku Klux Klan in Pulaski, Tennessee.Downloaded by [University of Defence] at 01:44 24 May 2016 A history of hate in the United States 43 • The Klan formed in reaction to efforts by the federal government to move toward de facto equality and to address discriminatory and other mistreat - ment perpetrated against victim groups. This pattern of reacting against efforts toward social (and political) equality of subordinate groups would be repeated during the civil rights period. • Hate-motivated acts committed during this period were terroristic in nature as perpetrators utilized violence or threats of violence to achieve sociopolitical objectives. • Finally, the intent of hate crime was not genocidal, as was found in the pre- Civil War era, but rather to intimidate, control, and oppress victim groups. Summary: civil rights era • Hate-motivated crimes committed during this period, particularly as a result of the Civil Rights Movement, reveal the conspicuous involvement of law enforcement and other governmental authorities in these actions. Several bombings and murders directly involved local officials and government agents (e.g., Neshoba County, Mississippi law enforcement and other per - sonnel were involved in the 1964 murders of civil rights workers Michael Schwerner, James Chaney, and Andrew Goodman). • With law enforcement officials either taking an active role in hate crimes or protecting perpetrators, the level of vulnerability for victim groups was more pronounced. In these instances, the law enforcement community victimized those targeted by hate-motivated acts, rather than protected them. Summary: post-civil rights era • With the availability of an assortment of lethal weaponry, including automatic assault weapons, “how to” Internet sources on killing methods, the existence of paramilitary training camps, greater access to deadly explosives, ammuni - tion, and potentially deadly chemical agents, today’s hate crime perpetrator can accomplish a high level of destruction within a very brief period of time. • US military personnel are occasionally implicated in the hate movement; active and former servicemen and women are highly sought for recruitment due to their training in hand-to-hand combat, marksmanship and knowledge of explosives. • This period sees the involvement of younger and more violent hate crime perpetrators than those from earlier periods. Growing acceptance of extremist ideology Even more disturbing is the quiet acquiescence to and adoption of extremist views in some corners of mainstream political platforms and ideologies (Hagan, 1997; Hor owitz, 1996; Levin & McDevitt, 1993; McLemee, 1997). Self-avowed White supremacist Tom Metzger considered by some to be the leading force behind Downloaded by [University of Defence] at 01:44 24 May 2016 44 A history of hate in the United States the revitaliza tion of the racist skinhead movement in the United States (Hamm, 1994), sought to enter into mainstream politics early in his career. He supported Republican Presidential Candidate Barry Goldwater in 1964, George Wallace in 1968, and he found agreement in much of Ronald Rea gan’s campaign platform. Metzger ran for a congressional seat in 1980 and his extreme views were pre - sent in his political vision (Hamm, 1993). He nevertheless won his primary with 55,000 votes and became the Democratic candidate for US Congress, only to lose in the general election. More recently the Tea Party movement, a grassroots populist movement (which gained public attention in 2009) which has captured the imagination and participation of many in Middle America, contains some racist, homophobic, and xenophobic elements. During the contentious debate on health care reform, Tea Party protestors gathered at the Capitol to express their concerns. Both racist behavior and speech was observed among the group: “a racist Tea Partier spat on Rep. Emanuel Cleaver, an African-American Democrat from Missouri. Another African-American congressman, Rep. André Carson, remembered the nasty atmosphere: “They were shouting the N-word. It was like a page out of a time machine.” Openly gay Congressman Barney Frank was reportedly heckled with anti-gay slurs during the same rally ( Washington Post , March 20, 2010). The social conditions of the past are deeply etched into the social and cultural norms of today and are evidenced by the following: first, the continual existence of hate-motivated crime, which now has a nearly 400-year history in the United States; second, the composition of perpetrator–victim groups remains largely unchanged over time; and third, the general factors that motivate hate crime also remain consistent in spite of social progress. These observations indicate that the problem of hate crime will not be eradicated any time soon. But lessons can be learned from this history. The most apparent is that dominant social and cultural dynamics must begin to dismantle the security blanket of tacit approval and make animus towards others due to perceived status unsupportable.

Chapter summary • Hate-motivated acts of the past are as much a part of the fabric of the USA’s history as those events that are more commonly found in American history books. • There are many acts that occurred in the past that would well qualify as hate crimes had they occurred in the twenty-first century. • Discrimination or hate-motivated acts were not considered illegal during the distant past. The reasons for this includes the absence of legal protections for victims, the devaluation of their personhood according to the social norms of that time, and the direct role of governments and other authorities in hate- motivated acts. • General characteristics of modern hate crime include the following: (1) vic - tims are more likely to be members of racial and or ethnic minority groups; (2) victim groups tend to be disadvantaged economically, politically, and Downloaded by [University of Defence] at 01:44 24 May 2016 A history of hate in the United States 45 socially relative to the majority group; (3) prevailing cultural norms and traditions situate victim groups as suitable for discriminatory treatment; and (4) victim groups are perceived as a threat to the quality of life of the domi - nant group. • History is replete with events that could be characterized as hate-motivated crimes, particularly (but not exclusively) for Native Americans, African slaves and subsequently African-Americans, and Asians, both Chinese and Japanese. • The Klan laid the foundation for the White supremacist movement in the United States. Collectively, Klan groups had three periods of onset activism, in 1866, 1915, and 1954, respectively. • The resurgence of the Ku Klux Klan in 1915 saw the targeting of Jews resid - ing in the South and Midwest and the exploitation of anti-Semitic propaganda. • The 1980s saw a surge in hate-motivated criminal activity across the United States concurrent with a growth in neo-Nazi extremist groups. It is during this post-civil rights period that these acts are first referred to as hate crimes. • More recent incidents of modern hate crimes (completed or attempted) and/or hate group activity may have implications for future developments of this crime. These characteristics include the increasing globalization of hate groups, exploitation of the US military, younger participants in the hate movement, and a capacity for more sophisticated and lethal methods of attack heighten the potential for mass casualties in hate-motivated attacks. • Historical hate-motivated acts vary in nature and manifest themselves differ - ently in accordance to the cultural and sociopolitical features of a given time period. • The history of hate-motivated acts suggest two critical indicators: (1) when dominant cultural values and social practices undermine the equality of minority and other marginalized groups and (2) when government and other institutions of formal social control fail to effectively address these social practices, then the resulting environment facilitates hate-motivated acts. • The social conditions of the past are deeply etched into the social and cultural norms of today and are evidenced by: the continual existence of hate crime; the composition of perpetrator–victim groups remains relatively unchanged; and, the general factors that motivate hate crime also remain stable despite social progress. • More effective interventions and prevention initiatives will help to diminish the potential danger found in modern hate crime. What is required is a com - mitment to disrupt the patterns that we have consistently viewed throughout history and today.

Case study 2.1 The murder of Lenuel Penn Lemuel A. Penn was an assistant superintendent of education in the District of Columbia’s public schools. He was also a lieutenant colonel in the Army Reserves. Lt. Col. Penn was murdered on July 11, 1964, near Athens, Downloaded by [University of Defence] at 01:44 24 May 2016 46 A history of hate in the United States Georgia, as he was driving from Fort Benning, Georgia, to Washington, DC. The four Ku Klux Klan members who shot Penn were later convicted in federal court of violating his civil rights. It was the first such conviction under the 1964 Civil Rights Act. (Source: Papers of the FBI Investigation of the Lemuel A. Penn Murder, www.lib.uiowa.edu/spec-coll/MSC/ToMsc550/MsC507/msc507.html) The murder In the early hours of July 11, 1964, a sedan carrying U.S. Army Reserve officers Charles E. Brown, John D. Howard, and Lemuel Penn departed Fort Benning outside Columbus and headed north for Washington, D.C.

After two weeks of active army reserve training, the men were return - ing home to resume their civilian routines as educators in the District of Columbia school system. . . . neither Penn nor his passengers noticed the . . . station wagon that followed the men out of town. The pursuing vehicle was trailing the offic - ers . . . but pulled alongside their sedan as it crossed the Broad River Bridge near the Madison-Elbert County line. Two shots were then fired from inside the station wagon, and Penn was killed instantly.

The trial Georgia governor Carl Sanders declared that he was “ashamed for myself and the responsible citizens of Georgia that this occurrence took place in our state.” After weeks of investigation, state prosecutors brought first-degree murder charges against two local White men, Cecil Myers and Joseph Howard Sims. Despite considerable evidence indicating their guilt, an all- White jury in Madison County acquitted both men on September 4, 1964. Federal authorities remained committed to bringing Penn’s murder - ers to justice. FBI agents had uncovered enough evidence, they believed, to secure a guilty verdict in a federal court. On the basis of the recently enacted Civil Rights Act of 1964, federal authorities charged Sims, Myers, and four other local Klansmen, Herbert Guest, James S. Lackey, Denver Phillips, and George Hampton Turner, with violating the federal law, which made it illegal for two or more persons to conspire to abridge or threaten another person’s civil rights. Criminal proceedings against the men began on June 27, 1966, two years after Penn’s murder. Though four of the defendants were found innocent, Sims and Myers were both convicted on conspiracy charges and sentenced to ten years apiece in the federal penitentiary. (Source: “Lemuel Penn Murder” by Edward A. Hatfield from the New Georgia Encyclopedia www.newgeorgiaencyclopedia.com/nge/Article. jsp?path =/HistoryArchaeology/SunbeltGeorgia/People-7&id =h-3611)Downloaded by [University of Defence] at 01:44 24 May 2016 A history of hate in the United States 47 Discussion questions 1 Considering the conditions that facilitate hate-motivated acts, why do you think Lemuel Penn and his two colleagues were targeted by the Ku Klux Klan? 2 What was the significance of Governor Sanders’ statement about public shame? 3 Some of the defendants were acquitted in the criminal trial. 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Available from www.fbi.gov/hq/cid/civilrights/overview.htm [Accessed November 11, 2010]. Walker, S., Spohn, C., & DeLone, M. (1996). The Color of Justice. New York: Wadsworth. Wells-Barnett, I. B. (1969). On Lynchings: Southern Horrors, a Red Record, Mob Rule in New Orleans . New York: Arno Press. Wood, R. (1999). The Indigenous Nonracist Origins of the American Skinhead. Youth & Society , 31(2), 131–51. Wooden, W. S. (1994). Renegade Kids, Suburban Outlaws . New York: Wadsworth.Downloaded by [University of Defence] at 01:44 24 May 2016 3 The evolution toward modern hate crime laws Introduction New laws are sometimes controversial. This can be said for hate crime laws.

Proponents of hate crime legislation argue that such laws are needed to punish this behavior and to symbolize values underlying an inclusive and diverse democ - racy. However, opponents assert that these laws are not necessary; that there are sufficient criminal statutes to respond effectively to hate-motivated crime. Moreo - ver, opponents contend that instead of ameliorating the existence of bigotry and prejudice in society, hate crime laws may exacerbate these attitudes by instigating resentment over so-called “identity politics” (Jacobs & Potter, 1998). But oppo - sitional arguments may lose their appeal to some when the etiology of hate crime laws are placed in a historical and legal context. This author contends that the historical perspective of hate crime law help the understanding of why such laws are legitimate, have utility, and are paramount to achieving and maintaining a free and secure society for all.

The evolution of hate crime law The efforts of both federal and state legislatures to address hate-motivated crimes did not just begin in the twentieth century. Just as Chapter 2 provides a review of historical crimes and incidents that resemble modern hate crimes, we also find that in the past there were some efforts to respond to these acts by enacting laws.

These early acts set the stage for hate crime laws. Among the most illuminating discussions of this area is that offered by legal scholar Brian Levin (2002). In his article, From Slavery to Hate Crime Laws: The Emergence of Race and Status- Based Protection in American Criminal Law , Levin meticulously identifies his - torical conditions that prompted legislative actions which would serve as building blocks for modern hate crime legislation.

Slavery and dealing with its aftermath Since the justification of slavery in the USA was largely based on race, the reme - dies required to redress its damages likewise required the recognition of the effects of race-based oppression. The dismantling of slavery and the efforts needed to Downloaded by [University of Defence] at 01:44 24 May 2016 52 The evolution toward modern hate crime laws address its profound consequences prompted the initial use of the law as a means to rectify racially motivated actions and policies and to punish those who deliber - ately victimized others because of race. To that end, Levin begins with pointing to the significance of the Thirteenth, Fourteenth, and Fifteenth Amendments to the US Constitution. Each sought to remedy a race-based wrong:

Thirteenth Amendment (1865) —abolished slavery. Slavery became synony - mous with being Black. Fourteenth Amendment (1868)— established national citizenship for all persons born or naturalized in the US (including newly freed Blacks) and ensured their Constitutional protections. States were prohibited from depriv - ing any person of life, liberty, or property without due process of law. Fifteenth Amendment (1870)— the right of citizens to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Following the Emancipation Proclamation and the end of the Civil War, the socio- legal status of hundreds of thousands of Blacks was unclear. Race-based slavery was no more, but Black citizenship was not proclaimed either until the 1866 Civil Rights Act, which preceded the enactment of the Fourteenth Amendment.

Civil Rights Act of 1866, 14 Stat. 27 (1866) Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude . . . shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding. This is the first federal law following the Civil War that purposed to address racially motivated acts targeting newly freed Blacks. The 1866 Civil Rights Act provided a penalty of a fine or incarceration to anyone who sought to interfere with Blacks exercising their rights as articulated in the law. Despite these and other efforts to support Black liberty and the privileges of citizenship, defiant southern authorities, the Ku Klux Klan, and even ordinary citizens fearful and resentful of these changes sought to harass, intimidate, and violently confront Blacks to prevent them from realizing the rights articulated in the Fourteenth and Fifteenth Downloaded by [University of Defence] at 01:44 24 May 2016 The evolution toward modern hate crime laws 53 Amendments in particular. To address the race-based reactionary violence, the federal government enacted the Force Act of 1870 and the Civil Rights Act of 1871 (also referred to as the Ku Klux Klan Act of 1871 ). These laws provided civil and criminal sanctions for those (whether government authorities or private conspiracies) who were guilty of interfering with or depriving citizens (including Black citizens) of their constitutional rights including suffrage. It was clear that the federal government was taking aim at Klan activities. One of the provisions of 42 U.S.C.A. paragraph 1985(3) states that “when two or more persons ‘conspire or go in disguise on the highway or the premises of another, for the purpose of depriving . . . any person or class of persons of the equal protection of the law,’ they may be sued by the injured parties.” The disguise reference applied to the hooded garments that Klan members wore during their acts to terrorize Blacks. While some efforts were made to put laws into place to address the targeting and victimization of Black citizens, laws to clarify and broaden their civil rights also occurred. Congress passed the Civil Rights Act of 1875 , which provided equal public accommodations for African-Americans. It stated the following: That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limita - tions established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude. SEC. 2. That any person who shall violate the foregoing section by deny - ing to any citizen . . . of every race and color, and regardless of any previ - ous condition of servitude, the full enjoyment of any of the accommodations, advantages, facilities, or privileges in said section enumerated, or by aiding or inciting such denial, shall, for every such offense, forfeit and pay the sum of five hundred dollars to the person aggrieved thereby, . . . and shall also, for every such offense, be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than five hundred nor more than one thousand dollars, or shall be imprisoned not less than thirty days nor more than one year. (US Statutes at Large, Vol. XVIII, 335ff) While each of the laws discussed above were designed to accomplish two things simultaneously—to ensure Black equality and to punish efforts to interfere with that objective, not all governing authorities agreed with those ends. Moreover, these laws mostly focused on state and local governments’ infringement upon the rights of African-Americans and other citizens but not interference by private citizens. Thus these laws often are more akin to a stuttering gait rather than bold and confident moves toward progress. Nevertheless, these laws were precedent- like for criminalizing behaviors that were motivated by racial animus and or other related hostilities, causing the intentional targeting of victims due to their racial or other ascribed class-based characteristics (Hall, 2005; Higginbotham, 1996; Levin, 2002).Downloaded by [University of Defence] at 01:44 24 May 2016 54 The evolution toward modern hate crime laws The years following emancipation were dangerous ones for Black Americans. They were subjected to many incivilities as well as summary lynching (from the time of emancipation, 1865, to the 1940s), particularly in southern states for exer - cising basic liberties. Lynching was carried out with impunity as law enforcement and other government powers rarely prosecuted those responsible. The federal government was powerless to intercede in these murders until the middle of the twentieth century due to the lack of federal anti-lynch laws. Several attempts were made to pass these laws from the 1920s to the 1940s. While anti-lynch bills would pass in the House of Representatives, they would fail to progress to a vote in the Senate due to filibusters or threats to filibuster by southern senators (NPR, 2005). Still, some states were more successful than the federal government in their efforts to combat this violence by passing anti-lynching and anti-masking laws that targeted the Klan. For example, African-Americans in West Virginia were able to effectively amass support for an anti-lynching measure. In 1921, the Capeheart Anti-Lynching bill was signed into law by Governor Ephraim Morgan.

It stated in part: [a] “mob” or “riotous assemblage,” [a] collection of individuals, five or more in number, assembled for the unlawful purpose of offering violence to the person or property of any one supposed to have been guilty of a violation of the law, or for the purpose of exercising correctional or regulative powers over any person or persons by violence and without lawful authority. . . . participation in such a mob or riotous assemblage is punishable by a fine ranging from a hundred to a thousand dollars and imprisonment of not less than 30 days nor more than 12 months. For damage on person or prop - erty, the crime is a felony punishable by imprisonment in the penitentiary.

The person or persons damaged have an action against the city or county in which the damage is done up to $5,000.00. In case of lynching, where person lynched has been taken from state, county, of municipal officer, the county shall be subject to forfeiture of $5,000 for the dependents or estate of the deceased and action may be brought in any state court and mandamus issue for the execution of judgment even to the levying of a tax. County may then recover same from negligent officer by action on his bond. A different type of racially motivated violence occurred when multiple waves of Blacks migrated from the rural south to northern urban centers, particularly following World War II. They were subjected to violence perpetrated by White mobs for moving into White neighborhoods, vying for jobs or due to rumors about Black on White crime (Tuttle, 1996; Lieberson & Silverman, 1965). Many of these attacks were precipitated by lies, fears, misrepresentations or gross exaggerations of local events. Libel and slander are acts that defame another by written or verbal communica - tions, respectively. Group libel is the defamation of a group of individuals based on their race, ethnicity, sexual orientation, religion, or other similar reasons. Illi - nois became the first state to criminalize group libel with the passage of the 1949 Downloaded by [University of Defence] at 01:44 24 May 2016 The evolution toward modern hate crime laws 55 state law, 224a of the Illinois Criminal Code, Ill. Rev. Stat., 1949, c. 38, Div. 1, paragraph 471. The section provides: It shall be unlawful for any person, firm or corporation to manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place in this state any lithograph, moving picture, play, drama or sketch, which publication or exhibition portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion which said publication or exhibition exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots. Such laws, which target a category of speech based on content , would be subject to First Amendment scrutiny and tested. The Illinois law was also challenged in 1951 by Joseph Beauharnais. The founder of the White Circle League of America, Beauharnais was convicted under the law for distributing racist anti- Black literature on Chicago streets. An excerpt of the flier’s content is instructive: “Wanted” One Million Self Respecting White People in Chicago to Unite under the Banner of the White Circle League . . . to oppose . . . Tru - man’s . . . Civil Rights Program . . . to amalgamate . . . black and white races with the object of mongrelizing the white race!” The . . . League . . . is the only . . . white voice in America . . . in protest against negro . . . infiltrations into . . . white neighborhoods . . . (Leagle.com) The US Supreme Court upheld the Illinois statute (and affirmed Beauharnais’s conviction) in Beauharnais v. Illinois 343 U.S. 250 (1952). The court found that Beauharnais’s speech was indeed the libel of a group and as such was not constitutionally protected speech. The significance of this statute and the Supreme Court’s decision contributed to modern hate crime legislation by penalizing behaviors (not attitudes or thoughts) that denigrated a class of people due to their race, color, creed, or religion (Levin, 2002). With racially and other hate-motivated violence occurring in the south and now the north, and rumblings of a developing Civil Rights Movement in the US, politi - cal leaders and social progressives advocated for the federal government to con - tinue efforts to suppress these activities. Congress subsequently passed the Civil Rights Act of 1957 . This law strengthened the civil rights division of the Justice Department and provided the Attorney General the authority to seek federal court injunctions against those who interfered with the right of African-Americans (or others) to vote (Cummings & Wise, 1971). The Civil Rights Act of 1964 is arguably the single most important precur - sor to modern hate crime laws. Further strengthened in 1968 by the adding of criminal penalties to civil rights violations, it articulated civil rights that fall under federal protection. They include protection against unequal application of voter Downloaded by [University of Defence] at 01:44 24 May 2016 56 The evolution toward modern hate crime laws registration requirements, discrimination in public accommodations, state and municipal governments denying access to public facilities on grounds of race, religion, gender, or ethnicity, and segregated public schools (see Civil Rights Act of 1964 below). Enumerated Federal Protections—Civil Rights Act of 1964 1 Prohibit racial or religious discrimination in public accommodations that affect interstate commerce, including hotels, motels, restaurants, cafete - rias, lunch counters, gas stations, motion picture houses, theaters, and sports arenas. 2 Prohibit discrimination because of race, color, sex, religion, or national origin by employers or labor unions. 3 Bar voting registrars from adopting different standards for white, black or other applicants. 4 Permit the Attorney General to bring suit to enforce desegregation of public accommodations; and allow individuals to sue for their rights under the act. 5 Permit the executive branch of the Federal Government to halt the flow of funds to public or private programs that practice discrimination. 6 Extend the life of the Civil Rights Commission; create a Community Relations Service to conciliate racial disputes and an Equal Employment Opportunity Commission to enforce the fair employment section of the act. (Cummings & Wise, 1971, 173) The next significant legal advancement toward hate crime law is the 1968 Civil Rights Act (Title 18, U.S.C., Section 245) , which makes it unlawful to “willfully injure, intimidate or interfere with any person, or to attempt to do so, by force or threat of force, because of that other person’s race, color, religion or national origin and because of his/her activity in one of the federally protected activities.” In addition, these activities include participating in a program or service provided by the government, attending a public school or college, traveling on a common carrier, patronizing a public accommodation, or participating as a juror. Title 18 further legitimized the use of the law to punish hate-motivated acts. The law provides punishments: fined or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire shall be fined under this title, or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.Downloaded by [University of Defence] at 01:44 24 May 2016 The evolution toward modern hate crime laws 57 Additional laws were passed to provide the federal government the ability to intervene in hate or bias motivated acts such as the Fair Housing Act and the Church Arson Prevention Act. It is clear that each of these initiatives clearly established the ability of state and federal governments to legitimately criminalize hate-motivated acts.

Modern hate crime laws From the 1860s to the 1960s, the federal government attempted to address hate-motivated attacks, which were primarily aimed at Black citizens, by crimi - nalizing the hostile interference with constitutionally protected rights. These early laws provided a legal framework that informed post-civil rights era or mod - ern hate crime legislation. To that end, early hate crime statutes were modeled after federal civil rights laws (Levin, 1999). But the contribution of the Anti- Defamation League’s model hate crime statute paved the way for states to build laws that would withstand judicial review.

The 1981 Anti-Defamation League (ADL) model statute Connecticut and Massachusetts were among the first states to pass hate crime laws before the 1980s (Lawrence, 1999; Levin, 2002). The slow start of most states to follow suit was likely due to the gradual recognition of hate crimes themselves, the political debate regarding how to respond to them, and finally the challenge of constructing sound crime bills. To encourage more states to pass hate crime legislation, the ADL drafted a model statute in 1981 that aided states in their efforts to enact similar laws. There were five components of the model statute:

(1) identifying a hate crime as a two-tiered criminal act, the predicate or base offense and the element of animus toward the victim because of actual or per - ceived characteristics; (2) the enhanced penalty element; (3) institutional vandal - ism (as these acts are often directed towards groups due to bias); (4) availability of civil actions for hate crime victims; and (5) states collecting and maintaining hate crime data reported to law enforcement. While some states passed laws based on the ADL model, others preferred different approaches and passed hate crime statutes accordingly. But the vast majority of states (forty-five) and the District of Columbia with hate crime statutes include the penalty-enhancement feature. The majority of these jurisdictions (states plus DC) include race, religion, national ori - gin, and ethnicity as protected categories; sexual orientation is included in 32, dis - ability in 31, gender in 27, and gender-identity is included in 10 (ADL, The ADL Approach, 4). Many states also have institutional vandalism laws which address the destruction or defacement of private schools, houses of worship, meeting places, cemeteries or other similar institutions due to bias motives. Overall, the majority of states have laws to address hate crimes; at the time of this writing, 45 states plus the District of Columbia have hate crime laws. As mentioned earlier, five states do not and include Arkansas, Georgia, Wyoming, Indiana, and South Carolina. Members of Georgia’s legislature have proposed hate crime bills con - sistently for the last several years, but with no successful outcomes.Downloaded by [University of Defence] at 01:44 24 May 2016 58 The evolution toward modern hate crime laws The US Supreme Court decision in Wisconsin v. Mitchell 508 U.S. 47 (1993) (which will be discussed later in the chapter) affirmed the constitutionality of the ADL model statute, including the enhanced penalty approach. Subsequently, most states today include penalty enhancement in their hate crime statutes. We now turn to the examination of the two court cases that placed the issue of the constitu - tionality of hate crime laws center stage: R. A. V. v. City of St. Paul (90-7675), 505 U.S. 377 (1992) and Wisconsin v. Mitchell (92-515), 508 U.S. 47 (1993). The St. Paul, Minnesota hate crime ordinance (R.A.V. v. St. Paul), 1992 In June 1990, Robert A. Viktora (R.A.V.), Arthur Miller and several other teenag - ers burned a cross inside the fenced yard of a Black family that lived across the street from the house where they were staying. Viktora was charged under the St.

Paul ordinance. The ordinance (Minnesota Legislation Code, paragraph 292.02, 1990) stated the following: Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor. The trial court dismissed the charges, stating that the ordinance was overbroad and inappropriately interfered with the First Amendment rights of the defendant.

The Minnesota State Supreme Court disagreed and reversed. The US Supreme Court did not concur with the State Supreme Court. The majority opinion written by Antonin Scalia stated that the ordinance is facially unconstitutional because it targets speech aimed at subjects of “race, color, creed, religion or gender.” This is discriminatory as the ordinance chose to ban only certain symbolic conduct, that is, cross burning, when it was motivated by those categories identified in the law (race, color, creed, religion, or gender). But if this form of hostile expression, including the Nazi swastika and the like, is directed towards other reasons such as homophobia, political affiliation, or other social classifications, for example homelessness or public assistance recipient, the ordinance is silent. This results in content-based discrimination and is not permissible under the First Amendment (Cornell University Law School). Thus St. Paul’s attempt to enact a hate crime ordinance failed. As a result of the R.A.V. decision, any hate crime statutes that were constructed in a way that was similar to the St. Paul ordinance, were no longer viable. For example, the New Jersey State Supreme Court overturned the state’s hate crime law in 1994 as a direct result of the R.A.V v. St. Paul decision; joining Maryland and Washington State. New Jersey, as with many other states, would come to rely on a different construction of its hate crime law; one that emphasized the intentional selection of victims due to their race, religion, or other perceived characteristics ( New York Times , 1994).Downloaded by [University of Defence] at 01:44 24 May 2016 The evolution toward modern hate crime laws 59 The Wisconsin Bias Crime Statute (Wisconsin v. Mitchell), 1993 Wisconsin’s hate crime statute differed substantially from the St. Paul ordinance. Whereas the St. Paul ordinance sought to criminalize specific speech content, Wisconsin’s hate crime law focused on the conduct of hate crime perpetrators. Statute paragraph 939.645 (1991–92) includes the following: If a person does all of the following, the penalties for the underlying crime is increased as provided in sub. (2):(a) Commits a crime under chs. 939 to 948.

(b) Intentionally selects the person against whom the crime under par. (a) is committed or selects the property that is damaged or otherwise affected by the crime under par. (a) in whole or in part because of the actor’s belief or perception regarding the race, religion, color, disability, sexual orientation, national origin or ancestry of that person or the owner or occupant of that property, whether or not the actor’s belief or perception was correct. (ADL, 2012. See the full description of Wisconsin’s hate crime statute at https://docs.legis.wisconsin.gov/statutes/ statutes/939/IV/645) After becoming angry from watching the movie Mississippi Burning, defend - ant Todd Mitchell incited a group of teenagers and young men to attack and beat a fourteen-year-old white boy who was nearby. Mitchell was convicted of aggravated assault but, as a result of the Wisconsin penalty enhancement statute, his sentence exposure was increased from two years to seven years.

Subsequently, he received a four-year sentence. Mitchell appealed his convic - tion, arguing that the Wisconsin law infringed upon his First Amendment rights.

The Wisconsin State Supreme Court agreed and reversed the conviction. The court reasoned that the penalty enhancement law inappropriately punishes hate thought (motive) and thus compromised First Amendment rights. But in 1993, the US Supreme Court upheld the Wisconsin statute and found that the statute proscribes conduct (and not expression), specifically the conduct of intentional and “discriminatory selection” of a victim based on race (Lawrence, 1999, 33). As Lawrence explained (1999, 33) “so long as Mitchell chose (the victim) on the basis of his race, his conduct would trigger the Wisconsin penalty- enhancement statute.” Levin (2009) summarizes the significance of the changes in hate crime law as represented by R.A.V. v. St. Paul and Wisconsin v. Mitchell . The court’s decision in Wisconsin v. Mitchell “upheld the constitutionality of broadly applicable pen - alty enhancement laws for hate crime” (2009, 15). In addition, it resolved some of the central criticisms of hate crime laws. Offering three reasons for its decision in Wisconsin, the court stated, (15): First, while the government may not punish abstract beliefs, it has wide latitude to address (offender) motive. Second, the Court further found that Downloaded by [University of Defence] at 01:44 24 May 2016 60 The evolution toward modern hate crime laws penalty enhancement laws . . . were aimed at discriminatory conduct and did not punish merely hateful expression.” (Whereas,) “in R.A.V. the criminal - ity depended not on the hostile use of a particular symbol, but on whether a designated disfavored viewpoint was conveyed by its use. Last, the Court addressed the severity of hate crime harms, stating that they are “thought to be more likely to provoke retaliatory crimes, inflict distinct emotional harm on their victims and incite community unrest. (Wisconsin v. Mitchell , 1993, 487–88) According to the 2009 report of the Leadership Conference on Civil Rights Education Fund, at least 45 states and the District of Columbia had passed hate crime statutes that utilize the penalty enhancement structure. The next signifi - cant hate crime law is named for the victims of two highly publicized and tragic hate crimes that occurred in the United States, Matthew Shepard and James Byrd, Jr. Murdered in the same year (1998), but in two different parts of the country, (Wyoming and Texas, respectively), these crimes galvanized a network of advo - cacy groups, national organizations, and progressive political leaders to support stronger measures to combat hate crime. At the time of these murders, the state of Wyoming and Texas could not prosecute these as hate crimes. Neither state had hate crime laws at that time. Neither could the federal government intervene and prosecute because sexual orientation was not a protected status. Nor could Byrd’s matter evoke federal statues because he was not engaged in a federally protected activity at the time of his attack. The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act would address those deficiencies.

The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, 2009 On October 28, 2009 President Barak Obama signed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act into law and essentially broadened the ability of federal authorities to prosecute local hate crimes. Before the passage of the Shepard-Byrd Act, the federal government could only be involved in the prosecution of a hate crime if the victim was attacked (because of race, religion etc.), while engaged in a federally protected activity. This legislation creates a new federal criminal hate crimes statute, 18 U.S.C. paragraph 249. Section 249(a) (1), which eliminates the requirement of victim participation in federally protected activities (see 18 U.S.C. paragraph 245). In addition, local and state law enforce - ment authorities receive additional investigative and prosecutorial resources by working collaboratively with federal authorities. In states where the local authori - ties have insufficient resources to respond to a hate crime; or for some reason, elect to not prosecute the case, federal authorities would have the ability to enter into the picture and or provide additional funds and technical assistance to support the local authorities. There are also instances when a criminal defendant has com - mitted several hate crimes in multiple jurisdictions. Under such circumstances, federal authorities are best situated to respond.Downloaded by [University of Defence] at 01:44 24 May 2016 The evolution toward modern hate crime laws 61 While state authorities could be concerned with the possibility of federal pros - ecutors trampling upon state sovereignty and taking over prosecutions, the law has built in procedures to ensure that federal involvement is based on valid grounds and that state authorities have agreed to its involvement in a state case. The “certifica - tion requirement” requires that “no prosecution of any offense described . . . may be undertaken by the United States, except under the certification in writing of the Attorney General or his designee, that: 1 such certifying individual has reasonable cause to believe that the actual or perceived race, color, religion, national origin, gender, sexual orienta - tion, gender identity, or disability of any person was a motivating factor underlying the alleged conduct of the defendant; and 2 such certifying individual has consulted with State or local law enforce - ment officials regarding the prosecution and determined that— 3 the State does not have jurisdiction or does not intend to exercise jurisdiction; 4 the State has requested that the Federal Government assume jurisdiction; 5 the State does not object to the Federal Government assuming jurisdic - tion; or 6 the verdict or sentence obtained pursuant to State charges left demon - stratively unvindicated the Federal interest in eradicating bias motivated violence. 7 a prosecution by the United States is in the public interest and necessary to secure substantial justice. (Open Congress, S. 909) The law also provides new protected status categories in federal hate crime law:

gender, sexual orientation, gender identity, and disability. Thus the protected status categories under federal law now include race, color, religion, national origin, gender, sexual orientation, gender identity, and disability. The Hate Crimes Prevention Act is not without its critics. Some fear that adding the protected categories of sexual orientation and gender identity brings about targeted censorship and compromises religious freedom (Leichman, 2009; Lofton, 2009). They theorize that religious leaders would be subject to arrest if they deliver sermons that suggest that homosexuality runs counter to God’s prescription for marriage and the family. Others suggest that the law provides protections for pedophiles and other categories of sexually deviant behavior as a result of the gender identity category, which is probably the least familiar and therefore less understood. These concerns aside, the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act does not appear to include language that permits targeted censorship or censorship in general, nor is it situated to infringe upon the First Amendment protection of freedom of religion.Downloaded by [University of Defence] at 01:44 24 May 2016 62 The evolution toward modern hate crime laws The first case charged under the Shepard-Byrd Act ended in a conviction. George Thompson, an employee of the Transportation Security Administration (TSA), was off duty when he committed the crime on May 4, 2010. According to reports, upon leaving his neighborhood bar, Thompson spotted the victim whom he assumed was Muslim because he was bearded. Witnesses stated that Thomp - son yelled at the victim, “You, Muslims, go back to your country.” Asking the man if he was Somali, Thompson continued. . . . “You Somali, go back to your country.” He physically assaulted the eighty-two-year old, hitting him, and then chased him, threatening to kill him. Police intervened. Thompson admitted to the attack as well as to yelling ethnic and anti-Muslim slurs. He supposedly was frustrated from difficulty in his neighborhood with Somali youth. On August 10, 2011, he was sentenced to six months in federal prison (DOJ, 2011). With the pas - sage of the Shepard-Byrd Act, the federal government has increased its ability to become directly involved in what would otherwise be typical state and local hate crime occurrences.

Cross-burning and anti-mask laws Laws that criminalize cross-burning and mask-wearing may be considered a subset of hate crime laws. Historically, these laws were a response to the violent campaigns of the Ku Klux Klan to intimidate and terrorize African- Americans and others and the particular manner in which these campaigns were carried out. What came to be the iconic images and symbols of the Klan had practical benefits. The wearing of hoods and robes not only evoked fear but also concealed the identity of the wearer. Cross-burnings have also been used throughout the years as a method to threaten others. The first documented inci - dent of cross-burning by the Klan occurred in 1915 (Swanson, 2002). Although the Klan itself will argue that a burning cross is part of a ceremonial sacred ritual, they’ve also used it as a tool of aggression and promise of violence. It is because of the manner in which the hood wearing and cross-burning has been used that legislatures have sought to criminalize these actions under proper cir - cumscribed conditions. The challenge to these laws is their ability to withstand First Amendment challenges. Wearing hoods or masks and cross-burning may be construed as expressive or symbolic speech. The First Amendment exists for the purpose of ensuring freedom of speech; even speech that many would find detestable.

Georgia’s anti-mask law In 1951, Georgia enacted the Anti-Mask Act OCGA paragraph 16-11-38. This law was prompted by the high level of violent actions, threats and harassment perpetrated by the Klan against targeted citizens of the state. The law provides the following:Downloaded by [University of Defence] at 01:44 24 May 2016 The evolution toward modern hate crime laws 63 A person is guilty of a misdemeanor when he wears a mask, hood, or device by which any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer and is upon any public way or public prop - erty or upon the private property of another without the written permission of the owner or occupier of the property to do so. (State v. Miller ) The law was careful to target certain mask-wearing behavior and not all. Mask- wearing during seasonal holidays, for physical safety at the workplace or during a sports activity, or for theatrical productions or celebrations such as Mardi Gras are exceptions and do not trigger the Act. The specific objective of the law is reflected in the Statement of Public Policy articulated in the law itself. The Anti- Mask Act reflects “the General Assembly’s awareness of and concern over the dangers to society posed by anonymous vigilante organizations.” It reads as follows: All persons residing in the State are entitled to the equal protection of their lives and property. The law protects all, not only against actual physical vio - lence, but also against threats and intimidations from any person or group of persons. The General Assembly cannot permit persons known or unknown, to issue either actual or implied threats, against other persons in the State.

Persons in this State are and shall continue to be answerable only to the estab - lished law as enforced by legally appointed officers. (State v. Miller ) This language clearly indicates that Georgia’s Anti-Mask Act was in reaction to the lawless violent behavior of the Klan, which used the mask to conceal the identity of those implicated in criminal behavior. But the law was challenged in State v. Miller . Shade Miller was convicted under the Act for wearing Klan regalia including the traditional hood in public. He challenged the constitutionality of the Georgia law arguing that the law violated his freedom of speech among other encroachments upon his civil rights. Although the trial court declared the Anti-Mask Act unconstitutional, the Georgia State Supreme Court in State v. Miller did not. The court referred to United States v. O’Brien, 391 U.S. 367 , which affirmed that “the government may regulate conduct that has both speech and nonspeech elements, if the regula - tion furthers a substantial governmental interest that is unrelated to the suppres - sion of free expression” and is minimal. The substantial governmental interest in the Act is the protection of the people of Georgia from “ terrorization by masked vigilantes ,” while reassuring the free exercise of the civil rights of law abiding citizens. Governmental interests also includes supporting law enforcement in the apprehension of offenders. The identification of masked criminals by their vic - tims is extraordinarily difficult, in addition to the paralyzing fear caused by such images. Moreover, the Georgia State Supreme Court stated that the Anti-Mask Downloaded by [University of Defence] at 01:44 24 May 2016 64 The evolution toward modern hate crime laws Act was non-discriminatory and content-neutral as the law proscribed “menacing conduct” or the behavior of the mask-wearer rather than a particular message.

The focus was on the intimidation or fear provoking aspect of the mask-wearer’s behavior, which includes the concealment of the wearer’s identity, which in turn evokes apprehension. The State Supreme Court reiterated that conviction requires that the context of the defendant’s conduct must be considered. For example, it must be proved that the defendant wore the mask knowing or having reasonable knowledge that wearing the mask to intimidate or to threaten is not protected by the First Amendment. Miller or any Klansmen has the freedom to participate in organized public rallies, marches, to distribute leaflets and so on. The Anti-Mask Act does not interfere with this protected speech activity but rather forbids intimi - dating mask-wearing communicative conduct.

Virginia’s cross-burning law The Virginia legislature passed its cross-burning law, paragraph 18.2-423 (burn - ing cross on property of another or public place with intent to intimidate); penalty; prima facie evidence of intent. The first version of this law was passed in 1950.

The law states: It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. Any person who shall violate any provision of this section shall be guilty of a Class 6 felony. Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons. Just as Georgia’s Anti-Mask Act was challenged in court, so was Virginia’s cross-burning law. In August 1998, Barry Black, the Imperial Wizard of the International Keystone Knights of the Ku Klux Klan, led a Klan rally in Carroll County, Virginia. To end the rally, the group circled a large cross approximately 25 feet high and burned it on private property with the owner’s permission.

Black was subsequently arrested and convicted under Virginia’s cross-burning law. Several similar cases, in addition to Black’s case, were appealed to the State Supreme Court challenging the constitutionality of Virginia’s cross-burning law.

That court held that the law was unconstitutional because it “selectively chooses only and all cross burnings because of its distinctive message,” and is thus not content neutral but discriminatory. The court also stated that the pronouncement that the very occurrence of a cross-burning was prima facie evidence made the law overbroad and violated the First Amendment. The state of Virginia petitioned the US Supreme Court, which subsequently reviewed the law and rendered a decision that clarified the issue. In Virginia vs. Black 2003 , the court determined that a state may ban cross-burnings which are done willfully for the purpose of evoking fear and to intimidate. In this decision, Downloaded by [University of Defence] at 01:44 24 May 2016 The evolution toward modern hate crime laws 65 the court acknowledges that the history of and social meaning surrounding cross- burning legitimizes state regulation. However, that portion of the Virginia law that stated that the burning of a cross in and of itself is sufficient evidence to establish the required intent was an overreach. As despicable as Klan cross-burning may be to some if not most individuals in a free society, the First Amendment per - mits such symbolic expression when done under appropriate (and legal) circum - stances. The Klan and similar groups have the First Amendment protected right to use a burning cross as political speech, or as a symbol of group ideology and/or as a symbol of their organization or part of their rituals. To criminalize those aspects of cross-burning suppresses speech and violates the First Amendment. Therefore, while the Virginia law against cross-burning is valid, its provision of any act of cross-burning as prima facie evidence of intimidation is deemed unconstitutional and is struck down by the court.

State hate crime laws In September 2005, the Congressional Research Service published a report on “State Statutes Governing Hate Crimes.” The report identifies four types of state hate crime laws: “statutory provisions that outlaw destruction of religious institu - tions, criminalize bias motivated violence and intimidation, mandate training for state police officers in recognizing and reporting hate crimes, and also prohibit infringement on another person’s civil rights” (Austin & Wallace, 2005, 4). Most state hate crime legislation will include one or more of these elements. There is variation and commonalities among state hate crime statutes. General differences may be found in how the hate crime offense is defined, the scope or comprehen - siveness of the law, and the range in penalties. Some states utilize the civil rights legislative approach and conceptualize their hate crime laws as the interference with the exercise of a Constitutional right. For example Wyoming (Wyo. Stat.

paragraph 6-9-102) criminalizes violations of civil or constitutional rights: 6-9-102. Discrimination prohibited; penalties.

a No person shall be denied the right to life, liberty, pursuit of happiness or the necessities of life because of race, color, sex, creed or national origin. b A person who violates this section commits a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both. Other state laws use language that is similar to the ADL model statute: “offenses committed by reason of the actual or perceived race, color, religion . . . of another person or group of persons.” Missouri state law 557.035 states: 1. For all violations of subdivision (1) of subsection 1 of section 569.100, RSMo, or subdivision (1), (2), (3), (4), (6), (7) or (8) of subsection 1 of section 571.030, RSMo, which the state believes to be knowingly motivated because of race, Downloaded by [University of Defence] at 01:44 24 May 2016 66 The evolution toward modern hate crime laws color, religion, national origin, sex, sexual orientation, or disability of the victim or victims, the state may charge the crime or crimes under this section, and the violation is a Class C felony. Several states, such as California, have developed statutes that not only deal with the criminal offense, but in training and reporting issues as well. California— Cal Pen Code paragraph 422.6 criminalizes injury or threat to person or damage to property because of actual or perceived “race, color, religion, ancestry, national origin, disability, gender, or sexual orientation.” The following components of California’s hate crime laws reflect its comprehensive nature: Cal Pen Code paragraph 666.7 Lists sentence enhancements for felony hate crimes and damage to property because the property is “associated with a person or group of identifiable race, color, religion, nationality, country of origin, ancestry, gender, disabil - ity, or sexual orientation.” Cal Pen Code paragraph 628.5 Establishes criteria for validating incidents of each crime description reported by schools.

Cal Pen Code paragraph 628.2 Covers compilation and distribution of reports of crimes committed on school grounds.

Cal Pen Code paragraph 628.1 Mandates development of reporting form for hate crimes, for use by all school districts and county offices of education.

Cal Pen Code paragraph 628 Establishes legislative intent to ensure collection of sufficient data and infor - mation about type and frequency of hate crimes and hate incidents on school campuses to combat such crime.

Cal Pen Code paragraph 594.3 Criminalizes vandalism of places of worship and interference with religious worship.

Cal Pen Code paragraph 422.95 Covers conditions of probation for hate crime perpetrators, including civil rights training and payments to organizations that help hate crime victims.

Cal Pen Code paragraph 422.75 Enhances penalty for felony committed because of victim’s actual or per - ceived “race, color, religion, nationality, country of origin, ancestry, disabil - ity, gender, or sexual orientation.”Downloaded by [University of Defence] at 01:44 24 May 2016 The evolution toward modern hate crime laws 67 Cal Pen Code paragraph 422.7 Specifies additional penalties to be imposed for “felony of intimidation because of specified beliefs or characteristics.” As discussed earlier, many state hate crime statutes include a penalty-enhancement element, which reflects the ADL model hate crime statute. It requires that crimes motivated by hate be subject to an increased or enhanced sentence. This component is triggered when the defendant intentionally selects the victim based upon his or her perceived membership in a group with characteristics that are included in the protected categories articulated in the state’s law. Wisconsin’s hate crime law specifies the sentence enhancement feature:

a If the crime committed . . . is ordinarily a misdemeanor . . . the revised maximum fine is $10,000 and the revised maximum period of imprison - ment is one year in the county jail; b If the crime committed . . . is ordinarily a Class A misdemeanor, the penalty increase under this section changes the status of the crime to a felony and the revised maximum fine is $10,000 and the revised maxi - mum period of imprisonment is 2 years; c If the crime committed . . . is a felony, the maximum fine prescribed by law for the crime may be increased by not more than $5,000 and the maximum period of imprisonment prescribed by law for the crime may be increased by not more than 5 years. (Wisconsin State Legislature, paragraph 939.645) In general, criminal laws vary from state to state. Therefore, it is not unusual to find distinctions among state hate crime laws. This variation is not only beneficial but it is also expected as the nature of hate crime itself manifests differently across counties, cities, states, and in different regions of the country.

The hate crime law controversy Hate crime laws will continue to be viewed as a necessary tool by some and with certain skepticism by others. The disputed ideas surrounding hate crime laws may change, but never fully disappear. Despite the Supreme Court’s decision in Wis - consin v. Mitchell , some will continue to argue that these laws punish thoughts and that it has opened the door to the concept of “thought police.” The recognition of hate-motivated acts in American society took hundreds of years to occur. The criminalization of that which used to be a cultural norm is a monumental step. The idea of prohibiting a crime because it is motivated by the animus of a social status or identity is unique from most other laws. Moreover, policing and punishing these crimes in a rational and effective manner are addi - tional areas of disagreement. It is quite clear that this category of law will be viewed as controversial for the foreseeable future. We now turn to outline some of the more common arguments for and against hate crime laws.Downloaded by [University of Defence] at 01:44 24 May 2016 68 The evolution toward modern hate crime laws Proponents of hate crime laws: a summary 1 Hate crime laws are necessary because of the corrosive nature of hate crimes . Some of the most important reasons why hate crime laws are needed were articulated in the US Supreme Court’s decision in Wiscon - sin v. Mitchell . In it, the court describes the distinctive qualities of hate crime acts. For instance, the court mentioned that bias or hate motives are “depraved motives.” The selection of the term “depraved” is meaningful— as it suggests that hate crimes are particularly repugnant acts. The court also pointed to the severe nature of hate crimes stating that they are “thought to be more likely to provoke retaliatory crimes, inflict distinct emotional harm on their victims, and incite community unrest” (Levin, 1999, 10). 2 There is evidence that hate crimes tend to be more violent and injurious than non-biased violent crimes. These acts tend to involv