New Jersey Case Highlights Difficulty of Enacting Fair Hate Crimes Legislation

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Oct 22, 2016

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New JerseyHate crimes are broadly defined as crimes motivated by a victim’s race, gender, sexual identity, national origin, or membership in some other group that is protected by a hate crime law. The laws usually punish violent conduct that is illegal when directed toward any victim, but provide enhanced penalties when the conduct is motivated by prejudice. Some hate crime laws, however, target specific acts, such as cross burning.

There is no question that people who belong to the groups protected by hate crimes legislation are particularly vulnerable to violence or abuse. Hate crimes against gays and Muslims have recently been in the news, but the FBI reports that half of the 5,000 to 7,000 hate crimes reported each year are based on the victim’s race.

Unfortunately, the FBI’s statistics don’t tell the whole story. An AP investigation discovered that hate crimes are underreported by law enforcement agencies. The police may not recognize (or care about) the motivation for a violent crime, or they may simply fail to fill out the paperwork that allows the FBI to count the offense as a hate crime.

Are Hate Crime Laws Effective?

Most states have some form of hate crimes legislation, although the laws vary with respect to the groups they protect and the approach they take to providing that protection. Despite the prevalence of hate crimes legislation, there is reason to question whether hate crime laws provides any more deterrence than the underlying laws that prohibit assaults and other violent behavior.

An article in The Nation points to the absence of any evidence that hate crime legislation deters violent crimes. Enhanced punishment may be more likely to reinforce negative attitudes than to change them. The article also asks whether more punishment equals more justice. Enhanced punishment might satisfy a need for retribution on the part of individuals who belong to the same group as the crime victim, but as the authors point out, American “laws exist precisely to make sure that fairness and justice take the place of vengeance.”

Another argument against the efficacy of hate crimes legislation is the selective manner in which the laws are applied and enforced. Hate crimes laws are “disproportionately used against poor people and people of color.” People with power (including police officers) who behave violently toward individuals because of their race are rarely subjected to hate crime prosecutions. If hate crime laws are not applied equally to all offenders, it is fair to ask whether they should be used at all.

Does Hate Crime Legislation Go Too Far?

Many civil libertarians agree with the American Civil Liberties Union (ACLU) that hate crime laws criminalize free thought and free speech. There is a thin line between punishing a defendant for attacking someone who happens to be a Muslim and punishing a defendant for saying “I hate Muslims” during the attack. It is offensive to hate Muslims, but it is not a crime. Attacking a Muslim (or anyone else) is a crime, but increasing punishments based on what the attacker said or believed during the attack may offend constitutional values that are embodied in the First Amendment protection of free expression.

Religious and conservative groups that disagree with the ACLU on most issues agree that hate crime laws are unconstitutional. They argue that hate crime legislation increases punishment because of a criminal’s religious or moral beliefs.

The boundary between protected expression and illegal conduct is not always clear. The Supreme Court concluded that a law prohibiting cross burning and the display of swastikas violated the First Amendment, even if the display is likely to cause anger or alarm, because the communication of ideas, including “virulent notions of racial supremacy,” is constitutionally protected. On the other hand, the Supreme Court held that a law prohibiting cross burning for the express purpose of intimidating a person or group of persons would not violate the Constitution, provided that the law requires the intent to intimidate to be proved rather than presumed.

The Supreme Court took a different approach to laws that enhance punishment for violent crimes that are motivated by prejudice. The Court held that those laws punish violent or offensive conduct, not speech. While the enhanced penalties are based on the defendant’s bigoted beliefs, the Court made a distinction between the unconstitutional act of punishing a defendant for holding “abstract beliefs” and the permissible act of punishing a defendant more harshly when those abstract beliefs motivate violent or offensive conduct.

New Jersey’s Hate Crimes Law

Most hate crimes require proof that a defendant was motivated to commit the crime by the victim’s membership in a protected group. Even if the law views the defendant’s motivation as an aggravating factor that increases the maximum sentence, the improper motivation must be proved beyond a reasonable doubt. Hate crime laws are unconstitutional if they allow a judge, rather than a jury, to decide upon the defendant’s motivation when that motivation may expose a defendant to a longer maximum sentence.

New Jersey enacted an unusual hate crimes law that increased the defendant’s punishment if the victim reasonably believed that he was targeted because of his race. Last year, the state supreme court struck down that law. Since the law did not require proof that the defendant was actually motivated by bias, it may have permitted hate crime convictions to be based on constitutionally protected beliefs or spoken thoughts that were unrelated to the crime.

The same reasoning recently persuaded a New Jersey appellate court to overturn the well-publicized conviction of Dharun Ravi. Ravi used a webcam to spy on a gay college roommate’s intimate encounter with another man. Two days later, when Ravi knew his roommate would be meeting the man again, he used Twitter to invite others to connect to his video chat so they could watch the roommate’s actions. The roommate committed suicide shortly after learning of Ravi’s actions.

The court reversed Ravi’s bias crime convictions because they were based on the state’s unconstitutional bias-intimidation law. The court also reversed Ravi’s convictions for invasion of privacy and hindering an investigation because evidence of the victim’s humiliation and suicide, which was only relevant to the bias crime charges, tainted Ravi’s convictions by inviting sympathy for the victim for reasons that had nothing to do with those crimes.

Whether Ravi would have been subjected to enhanced penalties under a conventional hate crimes law is unclear. The jury might not have concluded that those crimes were motivated by the victim’s sexual identity, given the substantial evidence that Ravi harbored no prejudice against gays. While New Jersey’s approach to hate crimes is unusual, it illustrates the tension between the government’s legitimate interest in deterring hate crimes and the difficulty of enacting legislation to accomplish that goal that is both effective and respectful of First Amendment rights.

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