Sue Lani Madsen: Defining Hate Crime and the Drive to Just Do Something

An attention-seeking actor was arrested this week for allegedly staging a fake hate crime. Chicago Police Superintendent Eddie Johnson was clearly outraged when he held a news conference to announce the charges against Jussie Smollett for filing a false police report. Besides the demands on scarce Chicago Police Department resources, Johnson was angry at the chilling effect Smollett’s lies would have on future victims.

Hate crime reporting is increasing, but there’s no way to tease out from the available statistics whether hate crimes are increasing, reporting is improving or even whether all reported incidents actually occurred. Most news accounts have included some variation of a factoid saying “reported hate crimes rose from 2016 to 2017, according to new data released by the FBI.” It makes a great sound bite but it’s radically incomplete without context.

While the FBI is mandated by the Hate Crime Statistics Act of 1990 to collect data, agency reporting is voluntary and fluctuates. An additional 1,000 agencies reported data to the FBI in 2017 compared to 2016. Clearly if more agencies are reporting, there will be more reports. Broad year-to-year comparisons provide little useful data unless the subject is the hate crime reporting system itself.

But what exactly is a hate crime? The definition varies, making accurate data collection even more difficult. In Washington and Idaho, “malicious harassment” statutes cover crimes driven by a perception of the target as belonging to a recognized victim group.

FBI methodology relies on an underlying crime being committed, with biased motives adding penalties. The 1990 act called out “crimes that manifest evidence of prejudice based on race, religion, sexual orientation, or ethnicity.” Congress added people with disabilities to the list in 1994. The law was revised again by the Matthew Shepard and James Byrd Hate Crimes Prevention Act of 2009 after two particularly evil attacks drove Congress to do something.

“Just do something” reactions to tragedy often don’t do much. Naming a bill for two men brutally murdered honored them in death but didn’t change the outcome. Is a brutal murder committed by a cold-blooded psychopath somehow less worse? Less tragic? Less fatal?

The 1969 Charles Manson murders were shocking because they had no apparent motive. The nine murders carried out by his cult followers wouldn’t fit the definition of a hate crime. And after 16 months of investigation, the FBI still has found no evidence of motive for Steven Paddock’s killing spree in Las Vegas in 2017. In some ways, violent crime without an element of hate is creepier. Crime is crime, whether motivated by hate or greed or fame or money or thrills.

Not everyone agrees hate crime is a useful statutory distinction. According to a 1998 book review of “Hate Crimes: Criminal Law and Identity Politics” by James Jacobs and Kimberly Potter as published in the National Catholic Register, “rather than fostering a more tolerant society, the hate crime concept often solidifies attitudes one would hope to change.”

On May 11, 2018, the U.S. Commission on Civil Rights held a full day forum titled “In the Name of Hate: Examining the Federal Government’s Role in Responding to Hate Crimes.” Panel No. 1 included representatives from the Boston and Seattle police departments, the International Association of Chiefs of Police, an attorney from the Department of Justice and a journalist discussing local law enforcement outreach and policing practices.

Chief Marc Garth Green described Seattle’s municipal protections for perceived homelessness, marital status and political ideology. In addition to malicious harassment, Seattle also tracks “crimes with bias elements” where derogatory language is used unrelated to the crime and “noncriminal bias” incidents. Those are defined as “using derogatory language but not in a criminal nature at home.” Bad language incidents are increasing, malicious harassment is not. Panelist Robby Souave of Reason magazine urged caution in policing speech. Criminal activity must be pursued and prosecuted, but “First Amendment freedoms are often the first casualty of government-led efforts to crack down on undesirable behavior.”

After hearing all about law enforcement best practices, Commissioner Peter Kirsanow asked the panel a critical question. Were they aware of any data, studies or other evidence demonstrating that designation as a hate crime aids in apprehension or prevents crime? The answer was silence.

But at least we can say we’re doing something. Even if it’s not much.