Quotes and Excerpts from
Criminal Law & Identity Politics
by James B. Jacobs and Kimberly Potter
Oxford University Press, USA, 2005
Chapter 1. INTRODUCTION
"...hate crime laws seek to send a symbolic message of support to members of certain groups...."
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"Chapter 2 scrutinizes the concept of hate crime. ... What is hate? What is prejudice? Which prejudices transform ordinary crime into hate crime? How strong a motivating factor must the prejudice be?"
"Chapter 3 examines the various types of state and federal hate crime statutes. The state statutes differ substantially. In addition to the hate crime reporting laws, there are at least three types of hate crime laws:
(1) statutes which define new low-level crimes like aggravated harassment;
(2) statutes which enhance the maximum possible sentence for some or all crimes; and
which are patterned after the federal criminal civil rights statutes."
asks whether there is a hate crime epidemic. We believe there
is not, despite a consensus to the contrary among journalists,
politicians, and academics. Practically nothing is known about the
incidence of hate crime because
(1) there is no uniform and clear definition of hate crime;
(2) in most cases, it is not possible to determine an offender‘s motivation(s); and
data-gathering efforts by advocacy groups, states, and the
federal government are unreliable....
[W]e build upon a body of criminological research in which social problems have been shown to be inflated by those committed to mobilizing public reaction...."
explains the passage of hate crime laws in terms of symbolic
politics and, more important, identity politics. Who are
the lobbyists for and against these laws? What arguments do they
make? Why are these laws so popular with politicians?"
"Chapter 6 critiques the legal, philosophical, and social science rationales for hate crime laws. These justifications for hate crime laws in include
(1) greater culpability of hate crime offenders;
(2) more severe emotional harm to hate crime victims;
(3) more severe impact on the community;
(4) greater potential to trigger retaliation and intergroup conflict; and
(5) greater need for deterrence."
"Chapter 7 deals with the enforcement of the hate crime laws. What problems do police departments and prosecutors face? What can police and prosecutorial hate crime units accomplish? Can the jury system withstand the strain of criminal trials focused on determining prejudice?"
"Chapter 8 takes up the constitutionality of hate crime laws. Do these laws.... prescribe punishment for improper opinions?"
"Chapter 9 speculates about the societal consequences of importing identity politics into the criminal law...."
Representatives John Conyers (D-Mich.), Barbara
Kennelly (D-Conn.), and Mario Biaggi (D-N.Y.)
"cosponsored a bill in the House of Representatives
entitled, 'Hate Crime Statistics Act.'"
1989 (October 9): The words “hate crime” first appeared in U.S. News and World Report. Questioning "the wisdom of a proposed District of Columbia law that enhanced the sentence for criminal conduct motivated by prejudice," he wrote, 'Most of the time it comes down to... epithets hurled during the crime.... Why should courts be in the business of judging these misty matters?'" p.4
1990. Hate Crimes Statistics Act of 1990 passed in the wake of the false "claim that the country was beset by an epidemic of violent bias crime."
1990s.Legal scholars began using the terms “hate crime” and “bias crime.” p.4
1992. During hearings held by The House of Representatives, witnesses claimed as fact that “a veritable epidemic of hate crime is sweeping through our country at an alarming rate..." p. 52
1993. "The FBI
released its first official report" on hate crime
statistics for 1991.
Chapter 2. What is Hate Crime?
"...the concept of hate crime is loaded with ambiguity because of the difficulty of determining
(1) what is meant by prejudice;
(2) which prejudices qualify for inclusion under the hate crime umbrella;
(3) which crimes, when attributable to prejudice, become hate crimes; and
(4) how strong the causal link must be between the perpetrator’s prejudice and the perpetrator’s criminal conduct...."
Prejudices Transform Crime Into Hate Crime?
...In some states, sexual orientation bias is included in the hate crime laws, in other states it is not. The same goes for gender bias, bias based upon mental or physical disability, and bias based on age. The civil rights paradigm that has condemned and outlawed certain prejudices in employment and housing does not apply easily to the world of crime.
"The first problem is that some of the groups that are the classic targets of prejudice serve as active perpetrators of prejudice-motivated crime. ... The majority of crimes are intraracial (i.e., the perpetrator and victim are members of the same racial group).p.16
percent of violent crimes involve an offender and victim of the
same race. Ninety-two percent
of black murder victims and 66.6 percent of white murder victims are killed by murderers of the same race. For the percent of violent crimes that are interracial, 15 percent involve black offenders and white victims; 2 percent involve white offenders and black victims; and 3 percent involve other combinations." p.16-17
"The number of black offender/white victim crimes has made some strong proponents of hate crime laws uncomfortable. Some argue that black offenders who attack white victims are motivated by economics not prejudice. A few have proposed removing crimes based upon anti-white prejudice from the definition of hate crime....
shootings (black perpetrator, white victims) and arson at Freddy’s
clothing store in Harlem in 1995, which resulted in t he death of eight
people, a number of politicians argued that the crime should not be seen
as a racial incident, but rather as a business dispute over a lease
between the owner of Freddy’s, who was Jewish and the owner of the
adjacent store, who was black The crime was committed by a black man,
had participated in demonstrations outside Freddy’s that involved racial
insults against customers, and threats against the owner and
"One law review author proposes that in cases of interracial assault by a white offender, prejudice should be presumed, and the burden placed on the defendant to prove the absence of a prejudiced motivation. No such presumption would apply in inter racial attacks by black perpetrators."
"One Klanwatch (a project of the Southern Poverty Law Center) report, 'Campus Hate Crime Rages in 1992,' illustrates how t he hate crime epidemic theory has been constructed on the foundation of dubious statistics. The report claims that there is a 'raging hate epidemic' on college campuses.“
"Two types of data are offered to support this claim. First, Klanwatch cites a 1990 report by the National Institute Against Prejudice and Violence (NIAPV) which states that '25% of minority students will becomes victims of violence based on prejudice. And 25% of those students will be re-victimized, according to a survey conducted by the NIAPV at the University of Maryland at Baltimore.'”
"Second, Klanwatch cites a survey of 2,823 junior and senior high school students by the New York State Governor’s Task Force on Bias-Related Violence, which found that the majority of respondents held biased views against gays and lesbians. The extent to which this bias translates to violence is left to the imagination. It also remains unclear where the NIAPV’s 25 percent figure comes from. What qualifies as an act of violence? How is a perpetrator identified and his or her prejudice confirmed?“(pages 47-48)
"The reported NIAPV findings cannot be reconciled with standard criminal justice statistics. For example, the FBI statistics on campus crimes for 1990 at the University of Maryland in Baltimore county show that of its 9,868 students, only 12 incidents of violent crime were reported.... Even if the FBI’s statistics significantly underreport crime, Klanwatch’s and NIAPV’s claim seems grossly exaggerated....
"The more that the NJAPV’s data are examined, the less reliable they appear. The 1990 NIAPV report on campus 'ethnoviolence' claimed that 'the number of college students victimized by ethno-violence is in the range of 800,000 to one million students annually.' The report offers no explanation for how NIAPV came up with this incredible figure. ...
"Richard Bernstein, a journalist critical of the NIAPV report, stated that '[c]ollecting figures on their total numbers does not prove the alarming increase in hatred so commonly reported.'... Indeed, NIAPV director, Howard Ehrlich, admits that 'there is no way of knowing whether any upsurge of racial harassment at colleges is actually occurring. It may simply be that minority students are showing strength and courage in filing more reports and demanding changes.'” Pages 48-49
"NIAPV defines ethnoviolence to include biased or even insensitive speech and literature. Further, NIAPV’s definition of ethnoviolence includes “psychological violence” and can encompass any actual or perceived expression of insensitivity. Two instances of ethnoviolence reported at the Massachusetts Institute of Technology were: (1) a student’s statement that '[i]n one of my courses in freshman year, the professor would rarely call on any black student and the few times he did he asked embarrassingly easy questions;' and (2) a student’s statement that '[a]t times professors would ask me to drop a course when I didn’t think it was appropriate. I was outraged.'”
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