HATE CRIME
A crime motivated by racial, religious, gender, sex-
ual orientation, or other prejudice.
Hate crimes are based, at least in part, on the
defendant’s belief regarding a particular status
of the victim. Hate-crime statutes were first
passed by legislatures in the late 1980s and early
1990s in response to studies that indicated an
increase in crimes motivated by prejudice.
Approximately 30 states and the federal govern-
ment have some form of hate-crime statute.
Many localities have also enacted their own
hate-crime ordinances.
The precise definition of hate crime varies
from state to state. Some states define a hate
crime as any crime based on a belief regarding
the victim’s race, religion, color, disability, sexual
orientation, national origin, or ancestry. Some
states exclude crimes based on a belief regarding
the victim’s sexual orientation. Others limit
their definition to certain crimes such as harass-
ment, assault, and damage to property. In all
states, the victim’s actual status is irrelevant. For
example, if a victim is attacked by someone who
believes that the victim is gay, the attack is a hate
crime whether or not the victim is actually gay.
Generally, there are three types of hate-
crime statutes. Two provide for punishment;
the third type mandates only the collection of
hate-crime data. One version defines a hate
crime as a discrete offense and provides stiff
punishment for the offense. Under Ohio’s
statute, for example, any person who commits
menacing, aggravated menacing, criminal dam-
age or criminal endangerment, criminal mis-
chief, or telephone harassment “by reason of the
race, color, religion, or national origin of
another person or group of persons” is guilty of
the hate crime termed ethnic intimidation
(Ohio Rev. Code Ann. § 2927.12 [Baldwin
1996]). The gravity of ethnic intimidation is
always one degree higher than a base offense.
For example,menacing is a misdemeanor of the
fourth degree, but menacing based on ethnicity
is a more serious offense, classified in Ohio as a
misdemeanor of the third degree.
Another type of hate-crime law enhances
punishment for certain offenses that are moti-
vated by hate. In Wisconsin, for example, defen-
dants who intentionally select their victims
based at least in part on the victims’ race, reli-
gion, color, disability, sexual orientation,
national origin, or ancestry are subject to more
severe penalties than they would receive in the
absence of such hate-based intent (Wis. Stat.
§ 939.645 [1995]). Thus in Wisconsin, for a class
A misdemeanor based on hate, the maximum
fine is $10,000, and the maximum period of
imprisonment is two years in jail or prison (Wis.
Stat. Ann. § 939.645(2)(a)), whereas an ordinary
class A misdemeanor is punishable by a maxi-
mum fine of $10,000 or up to nine months in
jail, or both (§ 939.51(3)(a)). For a class B mis-
demeanor, a less serious crime, the maximum
fine is $1,000, and the maximum imprisonment
is 90 days in jail. If the class B misdemeanor is a
hate crime, the maximum fine is $10,000, and
the maximum sentence is one year in jail.
A third type of hate-crime statute simply
requires the collection of statistics. At the federal
level, the Hate Crime Statistics Act of 1990 (Pub.
L. No. 101-275, 104 Stat. 140 [28 U.S.C.A. § 534
(1990)]) requires the JUSTICE DEPARTMENT to
collect statistics on crimes that manifest evi-
dence of prejudice. Data must be acquired for
crimes based on race, religion, disability, sexual
orientation, or ethnicity. The purpose of the act
is to provide the data necessary for Congress to
develop effective policies against hate-motivated
violence, to raise public awareness, and to track
hate-crime trends.
Laws against hate crimes might conflict with
rights under the FIRST AMENDMENT to the U.S.
Constitution. Generally, the First Amendment
protects a citizen’s right to the free expression of
thoughts. However, the courts have ruled that
First Amendment rights may give way to the
greater public good. For example, there is no
First Amendment protection for someone who
falsely yells “Fire!” in a crowded theater, because
such speech endangers the safety of others.
Such expression might give rise to a DISORDERLY
CONDUCT charge or similar charge. In deter-
mining the constitutionality of hate-crime legis-
lation, one primary question is whether the
prohibited speech deserves First Amendment
protection.
In 1997, the federal government docu-
mented 9,861 hate crimes based on the victims’
religion, ethnicity, gender, sexual orientation,
and disability. More than half of these crimes
were motivated by racial bias, and more than
1,000 were based on sexual orientation. These
statistics were illustrated in a pair of hate crimes
that drew national attention. The deaths of
James Byrd, Jr. and Matthew Shepard appeared
to be quintessential hate crimes.
Byrd was walking along a street in his Jasper,
Texas, community late at night in June 1998 when
he was given a ride by three white men in a pick-
up truck: The men beat him and chained him by
his ankles (with a towing chain) to the back of
their truck and dragged him for nearly three
miles. Byrd was decapitated and dismembered as
he was dragged behind the truck. He had been
alive and conscious when it all began. All three of
the perpetrators were on PAROLE at the time and
had extensive criminal records. It was alleged that
at least two of the men had affiliations with racist
groups, such as the Aryan Nation and the KU
KLUX KLAN, and displayed white-supremacist tat-
toos. All three were convicted of murder, and two
