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n December 2000, �n Brooklyn, New York, Mohammad Awad punched Cha�m Spear wh�le yell�ng obscen�t�es and ant�-

Sem�t�c remarks.1 In nearby Queens, N�cholas M�nucc�, a Caucas�an, fractured the skull of Afr�can Amer�can Glenn Moore w�th a baseball bat and robbed h�m �n June 2005. W�tnesses test�f�ed that M�nucc� used a rac�al slur before and dur�ng the attack.2 In October 1998, near Laram�e, Wyom�ng, Russell Henderson and Aaron McK�nney robbed, beat, and t�ed Matthew Shepard, a gay man, to a fence. F�ve days after the attack, Shepard d�ed from h�s �njur�es.� In Houston, Texas, Dav�d Tuck attacked and sexually assaulted a H�span�c teenager �n Apr�l 2006. Tuck shouted “wh�te power” and rac�al slurs dur�ng the attack.4

Awad and M�nucc� were each conv�cted of a hate cr�me. Wyom�ng, where Shepard was murdered, does not have a hate-cr�me

statute. Houston author�t�es d�d not charge Tuck w�th a hate cr�me because the charges aga�nst h�m already carr�ed a l�fe sentence.5

In many cases, hate may be seen or perce�ved by the v�ct�ms, the�r fam�l�es, w�tnesses, and even law enforcement to be the mot�vat�on for a cr�me, but perpetra- tors may not be charged w�th a hate cr�me for a var�ety of reasons—many of the same reasons that the debate on hate-cr�me laws cont�nues �n th�s country.

Leg�slators, law enforcement off�c�als, prosecutors—and the Amer�can publ�c— cont�nue to grapple w�th fundamental quest�ons �n the hate-cr�me debate:

■ How do we def�ne—and �dent�fy— hate cr�me?

■ How prevalent are these types of cr�me?

■ How do we prosecute, pun�sh, and, ult�mately, prevent hate cr�me?

■ How do we meet the needs of hate-cr�me v�ct�ms?

Hate Crime in America: The Debate Continues by Michael Shively, Ph.D., and Carrie F. Mulford, Ph.D.

About the Authors Dr. Shively is an associate in the Center for Crime and Drug Policy at Abt Associates Inc. Dr. Mulford is a social science analyst at the National Institute of Justice.

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In a study funded by the Nat�onal Inst�tute of Just�ce, M�chael Sh�vely, Ph.D., of Abt Assoc�ates Inc., conducted a comprehens�ve analys�s of the l�terature and statutes on hate cr�me to determ�ne how Federal and State leg�slat�on and programs are wrestl�ng w�th these �ssues.6

Scope of the Problem

Accurate est�mates of the prevalence of hate cr�me rema�n elus�ve. Nat�onal hate- cr�me data come from two pr�mary sources: the Federal Bureau of Invest�gat�on (FBI) Un�form Cr�me Report�ng Program and the Bureau of Just�ce Stat�st�cs (BJS) Nat�onal Cr�me V�ct�m�zat�on Survey (NCVS). Unfortunately, the types of data collected by these agenc�es d�ffer, wh�ch creates d�ff�cult�es �n accurately assess�ng the prevalence of hate cr�me.

In a study of law enforcement agenc�es, the FBI found that 7,16� hate-cr�me �nc�dents, affect�ng 8,795 v�ct�ms, were reported �n 2005 to pol�ce departments that part�c�pated �n the study.7 Est�mat�ng �nc�dents �nvolv- �ng elements of hate cr�me dur�ng an earl�er t�me per�od—July 2000 through December 200�—BJS coupled results from v�ct�m �nterv�ews w�th add�t�onal factors such as offender use of derogatory language or hate symbols to est�mate an annual average of 191,000 �nc�dents, affect�ng 210,000 v�ct�ms.8

The d�spar�ty �n these two est�mates stems, �n part, from an �mportant d�fference �n the data collected: the FBI counts only cr�mes that are reported to the pol�ce. For the NCVS, BJS collects �nformat�on from v�ct�ms, who are asked �f they th�nk hate played a role �n the cr�me. The potent�al for overreport�ng and underreport�ng �nc�dents �nvolv�ng elements of hate cr�me must also be cons�dered. For �nstance, only 44 percent of the alleged �nc�dents �n the NCVS data- base were reported to the pol�ce,9 so underreport�ng may account for at least some of the d�spar�ty �n these est�mates of the prevalence of hate cr�me �n th�s country. One study �nd�cates that people may be reluctant to report for fear of pol�ce �nsens�t�v�ty and abuse.10

All of th�s suggests that desp�te progress �n methods of data collect�on, the current data may not be suff�c�ent to gauge the true scope of the problem.

Laws and Legislation

The Federal Government and all but one State (Wyom�ng) have spec�f�c hate-cr�me laws. The laws vary s�gn�f�cantly from State to State, however, and there �s no standard legal def�n�t�on of hate cr�me. For example, although nearly all States spec�fy race, rel�g�on, or ethn�c�ty as character�st�cs of protected groups, other character�st�cs are not always �ncluded. (See above chart, “States W�th Laws for Protected Groups.”)

Hate-cr�me laws may def�ne:

1. Groups that are protected (e.g., rel�g�on, race or ethn�c�ty, gender, d�sab�l�ty, and sexual or�entat�on).

2. A range of pred�cate or underly�ng cr�mes (e.g., assault).

�. A requ�rement that hate or b�as mot�vated the offense.

4. Penalty enhancements.

5. Prov�s�ons for c�v�l remed�es.

6. Requ�rements for data collect�on.

7. Tra�n�ng requ�rements for law enforce- ment personnel.

Although most States allow broad categor�es of pred�cate or underly�ng offenses to be charged as a hate cr�me

Protected Group No. of States Ethn�c�ty 45 Race 45 Rel�g�on 45 Gender �1 D�sab�l�ty �0 Sexual or�entat�on 27 Age 14 Pol�t�cal aff�l�at�on 7

States With Laws for Protected Groups

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(such as assault, vandal�sm, and a w�de var�ety of m�sdemeanors and felon�es) and prov�de for penalty enhancements, only about half the States have enacted statutes that requ�re data collect�on and offer v�ct�ms a spec�f�c recourse for recover�ng damages. Statutory prov�s�ons address�ng the tra�n�ng of law enforcement personnel to deal w�th hate cr�me ex�st �n only 12 States. On the Federal level, a 1994 law mandates longer sentences for hate cr�me comm�tted under Federal jur�sd�ct�on. These d�fferences �n laws from State to State—and on the Federal level—make �t d�ff�cult to ensure cons�stency �n the pros- ecut�on of hate cr�me.

One of the most s�gn�f�cant �ssues �n the debate �s the lack of nat�onal consensus that hate cr�me should be cons�dered a separate class of cr�me. In add�t�on, even supporters of hate-cr�me leg�slat�on d�sagree about how the statutes should be wr�tten. Other major quest�ons �n the debate �nclude:

■ Should hate or b�as mot�vat�on be cons�dered when the underly�ng offense, such as assault or vandal�sm, �s already covered by cr�m�nal law?

■ Do hate-cr�me laws pun�sh thoughts rather than act�ons?

■ What are the ram�f�cat�ons of bas�ng add�t�onal penalt�es upon the thoughts that mot�vate offenders rather than on the behav�or �tself?

■ Is �t poss�ble to determ�ne w�th legally acceptable certa�nty the mot�ve beh�nd a person’s cr�m�nal acts?

■ Do hate-cr�me laws result �n more severe pun�shments for cr�mes aga�nst certa�n groups of people than for equ�valent cr�mes comm�tted aga�nst other groups?

■ Are hate-cr�me v�ct�ms more traumat�zed than other v�ct�ms of the same underly�ng offense because they feel personally targeted?

■ Does hate cr�me �ncrease fear �n the commun�ty beyond what m�ght ex�st for s�m�lar cr�mes that are not mot�vated by hate?

Some States have struck down hate-cr�me statutes as too broad or vague. Most of the h�ghest State courts that have heard challenges on F�rst Amendment grounds to the penalty enhancement prov�s�on of hate-cr�me laws have upheld b�as as a rat�onale for harsher pun�shments. The U.S. Supreme Court upheld the W�scons�n hate-cr�me penalty enhancement, rul�ng that �t d�d not suppress free speech because the statute �s mot�vated by the State’s des�re to redress a greater soc�etal harm that �s �nfl�cted by b�as-�nsp�red conduct, not by an attempt to suppress thoughts.11

Other Responses to Hate Crime

Many jur�sd�ct�ons have establ�shed hate- cr�me un�ts �n the�r pol�ce departments, and some reg�onal task forces are devoted to �nvest�gat�ng hate cr�me. Some States have �ncreased law enforcement tra�n�ng on hate cr�me and �mplemented school- and commun�ty-based prevent�on programs. Cal�forn�a and Massachusetts are notable for �nclud�ng these and other strateg�es �n the�r efforts to combat hate cr�me.

Nonprof�t organ�zat�ons have also d�rect- ed resources to prevent�on programs, serv�ces to v�ct�ms, and c�v�l lawsu�ts f�led on behalf of v�ct�ms aga�nst hate- cr�me perpetrators.

WHeRe DID THe TeRm ‘HATe CRIme’ COme FROm? The term “hate cr�me” was co�ned �n the 1980’s by journal�sts and pol�cy advo- cates who were attempt�ng to descr�be a ser�es of �nc�dents d�rected at Afr�can Amer�cans, As�ans, and Jews. The Federal Bureau of Invest�gat�on def�nes hate cr�me—also called b�as cr�me—as “a cr�m�nal offense comm�tted aga�nst a person, property, or soc�ety that �s mot�vated, �n whole or �n part, by the offender’s b�as aga�nst a race, rel�g�on, d�sab�l�ty, sexual or�entat�on, or ethn�c�ty/nat�onal or�g�n.”

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Although these �n�t�at�ves have generated ant�-hate-cr�me “best pract�ces,” based on exper�ence and backed by expert op�n�on, they have not been r�gorously evaluated to determ�ne �f they are successful �n �ncreas�ng arrest and prosecut�on, prevent�ng hate cr�me, or support�ng v�ct�ms.

Current Research on Hate Crime

Informat�on about the character�st�cs of hate-cr�me offenses �s based pr�mar�ly on NCVS v�ct�m reports and on pol�ce reports f�led through the Nat�onal Inc�dent-Based Report�ng System. Both �nd�cate that b�as regard�ng race �s the most common mot�va- t�on beh�nd a hate cr�me. Afr�can Amer�cans, for example, are targeted tw�ce as often as Caucas�ans, accord�ng to these databases. “V�ct�m Reports of Hate-Cr�me Mot�vat�ons,” the chart on th�s page, l�sts the “mot�va- t�ons” beh�nd hate cr�mes as reported by v�ct�ms who part�c�pated �n a 2000–200� NCVS survey.

A large body of research ex�sts on preju- d�ce and b�as, but �t does not expla�n why prejud�ce prompts people to comm�t a hate cr�me.12 Only a few stud�es have attempted to exam�ne the character�st�cs of hate-cr�me offenders, and these have not been def�n�t�ve. A North Carol�na study found that perpetrators of hate cr�me were more l�kely than other c�t�zens to express b�goted att�tudes,1� but th�s conclus�on comes as no surpr�se. The North Carol�na researchers were unable to stat�st�cally d�st�ngu�sh hate- cr�me perpetrators from other c�t�zens based solely on att�tudes, thus suggest�ng that there are factors beyond att�tude that cause �nd�v�duals to comm�t hate cr�me. To date, there s�mply has not been suff�c�ent research to �dent�fy the character�st�cs that d�st�ngu�sh perpetrators of hate cr�mes from people w�th b�goted att�tudes who do not engage �n such acts.

Another way of analyz�ng cr�m�nal behav�or �s through offender typolog�es or categor�es.14 The most w�dely d�scussed and accepted

of these was formulated by Jack McDev�tt, Jack Lev�n, and Susan Bennett.15 Based on a study of 169 cases �n Boston, these researchers �dent�f�ed four major categor�es of hate-cr�me mot�vat�on:

■ Thrill-seeking. Offenders who are mot�vated by a des�re for exc�tement (66 percent).

■ Defensive. Offenders who comm�t hate cr�me to protect the�r turf or resources �n a s�tuat�on that they cons�der threaten�ng (25 percent).

■ Retaliatory. Offenders act�ng to avenge a perce�ved �nsult or assault (8 percent).

■ Mission. Offenders who are so strongly comm�tted to b�gotry that hate becomes the�r career (less than 1 percent).

No attempt has been made to val�date or repl�cate these typolog�es even though they are w�dely used �n tra�n�ng law enforce- ment off�cers to �dent�fy and �nvest�gate hate cr�me. Another study �nvest�gated self-reported ant�gay aggress�on �n the San Franc�sco Bay area and �dent�f�ed four categor�es of offenders s�m�lar to those proposed by McDev�tt.16 That study corrobo- rates, but does not sc�ent�f�cally val�date, McDev�tt’s typolog�es.

Motivation Percent of Incidents Race 55.4 Assoc�at�on* �0.7 Ethn�c�ty 28.7 Sexual or�entat�on 18.0 Perce�ved character�st�c 1�.7 Rel�g�on 12.9 D�sab�l�ty 11.2

Victim Reports of Hate-Crime motivations

Source: Harlow, C.W., Hate Crime Reported by Victims and Police (2005) p.�, ava�lable at www.ojp.usdoj.gov/bjs/pub/pdf/hcrvp.pdf.

Note: Percentages �n th�s exh�b�t add up to more than 100 percent because some respondents �nd�cated more than one mot�vat�on.

* Assoc�at�on w�th people who have certa�n character�st�cs, for example, a mult�rac�al couple.

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Suggestions for the Future

The Abt Assoc�ates report �dent�f�es the need for more research �n the follow�ng areas:

■ A method for more accurately est�mat�ng the prevalence of hate cr�me.

■ An evaluat�on of the �mpact of hate-cr�me leg�slat�on on deterrence, pun�shment, enforcement, tra�n�ng, and report�ng.

■ The mot�vat�ons beh�nd hate cr�me and the development of emp�r�cally based offender typolog�es.

■ How membersh�p �n or aff�l�at�on w�th hate groups (or exposure to the�r l�terature) affects the comm�ss�on of cr�me.

■ The effect of hate cr�me on v�ct�ms and commun�t�es.

■ An evaluat�on of programs des�gned to prevent and respond to hate cr�me and to ass�st hate-cr�me v�ct�ms.

The Amer�can Soc�ety of Cr�m�nology has supported these recommendat�ons.

The Abt Assoc�ates report also recom- mends the development of a Federal central repos�tory of hate-cr�me �nformat�on to help resolve �ncons�stenc�es �n how hate cr�me �s def�ned and how data are collected and analyzed. The report ma�nta�ns that such a repos�tory could d�ssem�nate research f�nd�ngs and �nformat�on on programs, and thereby lead to a better use of resources �n prevent�ng and develop�ng responses to hate cr�me.

NCJ 218259

For More Information Th�s art�cle �s based on: ■ Sh�vely, M., Study of Literature and

Legislation on Hate Crime in America, f�nal report subm�tted to the Nat�onal Inst�tute of Just�ce, Wash�ngton, DC: June 2005 (NCJ 210�00), ava�lable at www. ncjrs.gov/pdff�les1/n�j/grants/210�00.pdf.

■ Hate Crime Statistics 2005, Wash�ngton, DC: U.S. Department of Just�ce, Federal Bureau of Invest�gat�on, October 2006, ava�l- able at www.fb�.gov/ucr/hc2005/�ndex.html.

■ Harlow, C.W., Hate Crime Reported by Victims and Police, Spec�al Report, Wash�ngton, DC: U.S. Department of Just�ce, Bureau of Just�ce Stat�st�cs, November 2005 (NCJ 209911): 1, ava�lable at www.ojp.usdoj.gov/bjs/ pub/pdf/hcrvp.pdf.

Other resources �nclude: ■ Bureau of Just�ce Ass�stance, Addressing

Hate Crimes: Six Initiatives That Are Enhancing the Efforts of Criminal Justice Practitioners, Wash�ngton, DC: U.S. Department of Just�ce, Bureau of Just�ce Ass�stance, 2000.

■ Federal Bureau of Invest�gat�on, Crime in the United States 2004: Hate Crime, Wash�ngton, DC: U.S. Department of Just�ce, Federal Bureau of Invest�gat�on, 2005.

■ D.C. B�as Cr�mes Task Force, Prevention of Bias/Hate Crimes Starts With You! Wash�ngton, DC: U.S. Attorney’s Off�ce for the D�str�ct of Columb�a, ava�lable at www. usdoj.gov/usao/dc/Partnersh�ps/F�les/ HateCr�mes.pdf.

Notes

1. Awad pled gu�lty to assault as a hate cr�me. He rece�ved 5 years’ probat�on and was requ�red to attend an anger-management course. Bahrampour, T., “Metro Br�ef�ng– New York: Brooklyn: Hate-Cr�mes Prosecut�on,” New York Times [onl�ne], June 27, 2001 (accessed January �1, 2007).

2. A Queens, New York jury conv�cted M�nucc� of second-degree assault as a hate cr�me. He was sentenced to 15 years �n pr�son. “Fat N�ck Gets 15 Years for Bat Attack,” New York Daily News, July 17, 2006, ava�lable at www.nyda�lynews.com/front/ story/4�5818p-�671�5c.html (accessed February 2, 2007).

�. Henderson pled gu�lty to felony murder and k�dnapp�ng. A Laram�e jury found McK�nney gu�lty of two counts of felony murder. Both are serv�ng two consecut�ve l�fe sentences w�thout the poss�b�l�ty of parole. Cart, J. “K�ller of Gay Student Is Spared Death Penalty; Courts: Matthew Shepard’s Father Says L�fe �n Pr�son Shows ‘Mercy to Someone Who Refused to Show Any Mercy,’” Los Angeles Times, November 5, 1999.

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4. A d�str�ct court �n Houston sentenced Tuck to l�fe �n pr�son for aggravated sexual assault. Ant�-Defamat�on League, “Texas Wh�te Supremac�st Rece�ves L�fe Sentence,” December 1, 2006, ava�lable at www. adl.org/learn/extrem�sm_�n_the_news/ Wh�te_Supremacy/rac�stsk�nhead_texas_ 1106.ht (accessed February 2, 2007).

5. Ib�d.

6. Sh�vely, M., Study of Literature and Legislation on Hate Crime in America, f�nal report to the Nat�onal Inst�tute of Just�ce, Wash�ngton, DC: June 2005 (NCJ 210�00), ava�lable at www.ncjrs.gov/pdff�les1/n�j/ grants/210�00.pdf.

7. Hate Crime Statistics 2005, Wash�ngton, DC: U.S. Department of Just�ce, Federal Bureau of Invest�gat�on, October 2006, ava�lable at www.fb�.gov/ucr/hc2005/�ndex.html.

8. The NCVS conta�ned �nterv�ews of 24� hate-cr�me v�ct�ms. BJS then used a stat�st�cal method to est�mate that th�s f�gure represents an annual, nat�onw�de average of approx�mately 210,000 hate- cr�me v�ct�ms. Harlow, C.W., Hate Crime Reported by Victims and Police, Spec�al Report, Wash�ngton, DC: U.S. Department of Just�ce, Bureau of Just�ce Stat�st�cs, November 2005 (NCJ 209911): 1, ava�lable at www.ojp.usdoj.gov/bjs/pub/pdf/hcrvp.pdf.

9. Ib�d.

10. Nolan, J.J., and Y. Ak�yama, “The Hate Cr�me Stat�st�cs Act of 1990: Develop�ng a Method

for Measur�ng the Occurrence of Hate V�olence,” American Behavioral Scientist 46 (2002): 1�6–15�.

11. Wisconsin v. Mitchell, 508 U.S. 476 (199�).

12. Green, D.P., L.H. McFalls, and J.K. Sm�th, “Hate Cr�me: An Emergent Research Agenda,” Annual Review of Sociology 27 (2001): 279–504.

1�. Green, D.P., R.P. Abelson, and M. Garnett, “The D�st�nct�ve Pol�t�cal V�ews of Hate- Cr�me Perpetrators and Wh�te Supremac�sts,” �n Cultural Divides: Understanding and Overcoming Group Conflict, ed. D.A. Prent�ce, and D.T. M�ller, New York: Russell Sage Foundat�on, 1999: 429–464.

14. Although a typology �s not a formal theory, �t prov�des a useful way of organ�z�ng observat�ons.

15. McDev�tt, J., J. Lev�n, and S. Bennett, “Hate Cr�me Offenders: An Expanded Typology,” Journal of Social Issues 58 (2002): �0�–�17. The researchers analyzed 169 cases handled by the Commun�ty D�sorders Un�t of the Boston Pol�ce Department �n 1991–1992.

16. Frankl�n, K., “Ant�gay Behav�ors Among Young Adults: Prevalence, Patterns, and Mot�vat�ons �n a Noncr�m�nal Populat�on,” Journal of Interpersonal Violence 15 (2000): 4, ��9–�62.