Religious Action Center

Hate Crimes

Background

Over the past several years, we have witnessed a rash of violent hate crimes across America. The litany of names has become familiar. Along with the brutal, hate-motivated murders of James Byrd Jr. in Texas, Matthew Shepard in Wyoming, and Billy Jack Gaither in Alabama, hate-motivated attacks continue to strike fear into the hearts of many different communities. Particularly after the attacks of September 11, 2001, hate-based attacks upon Arab Americans, Muslims, and Sikhs increased at a frightening rate.

According to the 2003 FBI report of hate crimes (required under the 1990 Hate Crimes Statistics Act), while the overall number of violent crimes reported to the FBI in 2003 decreased by 3%, reported hate crimes increased slightly, from 7,462 in 2002 to 7,489 in 2003. 1,430 of these offenses - or 16.4% - were crimes based on the victim's actual or perceived sexual orientation. Offenses based on race account for the highest category of bias crime at 52.5%. The second highest category is crimes based on religion - also at approximately 16.4%. The data does not track crimes based on bias against transgender people.

Opponents argue that hate crimes laws are violations of First Amendment protections, but these laws do not target speech; rather, they target the criminal action that derives from the speech. Many opponents counter by claiming that criminal action is already punishable by law under the criminal code. But, it is important to recognize that hate crimes work like terrorism: although there may be as few as one victim, hate crimes target and terrorize an entire community. For instance, if a Jewish person is attacked because he is a Jew, a threatening message is sent to the entire Jewish population in that community: if we find Jews, we will attack them. It is this terror that extends beyond the ordinary crime that hate crimes punish.

While hate crimes laws are never going to eliminate bigotry, they are effective for a number of reasons. Hate crimes laws serve as a deterrent to those individuals who chose to act on their hatred. By imposing stricter penalties against the perpetrators of these crimes, hate criminals may think twice before acting. Equally as important, by collecting accurate information about these hate crimes, the government and non-governmental organizations can better plan and program educational activities to combat hatred. Although the stricter punishment is critical, the goal of hate crimes laws is often tied to the idea of educating perpetrators, law enforcement officers, and the general public about the scourge of hate in our society.

Legislative Summary

Section 245 of Title 18 of the U.S. Code, the primary federal statute used to combat racially and religiously bias-motivated violence, prohibits intentional force or threat of force on the basis of race, color, religion or national origin for the purpose of interfering with an individual's enjoyment of a federal right or benefit, such as serving on a jury, voting, or going to school.

Under the current statute, the government must prove that the crime occurred because of a person's membership in a protected group, such as race or religion, and because he/she was enjoying a federally protected activity. In its current form, the statute leaves federal prosecutors powerless to intervene in bias-motivated crimes if they cannot establish the victim's involvement in a federally protected activity. Additionally, federal authorities cannot intervene in crimes based on sexual orientation, gender identity, gender, or disability.

The Local Law Enforcement Enhancement Act of 2005 (S. 1145 / H.R. 2662)

The Local Law Enforcement Enhancement Act would amend existing hate crimes law in two ways. First, it would provide new authority for federal officials to investigate and prosecute cases in which the bias violence occurs because of the victim's real or perceived sexual orientation, gender or disability. Second, it would remove an obstacle to federal involvement by permitting prosecutions without having to prove that the victim was attacked because he/she was engaged in a federally-protected activity. While states would continue to play the primary role in prosecuting bias-motivated violence, the LLEEA would allow the federal government to address those cases in which local authorities are either unable or unwilling to investigate and prosecute.

Under current law, federal involvement in prosecuting a hate crime can be triggered only if the government can prove that the crime occurred because of a person’s membership in a designated group and because (not simply while) the victim was engaged in a specified federally-protected activity – such as serving on a jury or attending public school. The LLEEA would eliminate these overly-restrictive obstacles to federal action, which have prevented the government from involvement in many cases in which individuals kill or injure others because of hate motivated bias.

The LLEEA would, in certain limited circumstances, authorize the Department of Justice to assist local prosecutions, and, where appropriate, investigate and prosecute cases in which the violence is motivated by the victim’s actual or perceived sexual orientation, gender, or disability. The House bill also includes more explicitly inclusive language for crimes directed against an individual on the basis of gender identity. Current federal law does not provide authority for involvement in these four categories of cases at all.

The Local Law Enforcement Hate Crimes Prevention Act passed in the House (as an amendment to another bill) on Sept. 14, 2005, by a strong bipartisan vote of 223-199.

Longtime advocates for hate crimes legislation Senators Edward Kennedy (D-MA), and Gordon Smith (R-OR), introduced the Senate version of the LLEEA, S. 1145. The Senate bill has 44 original co-sponsors and was referred to the Senate Judiciary Committee.

Opponents of the legislation claim the new legislation would cause a flood of federal court cases. However, the LLEEA states that a case can only be brought if a crime is certified, in writing, by the Attorney General or her designee that an individual prosecution would be "in the public interest and necessary to secure substantial justice." Justice Department prosecutors have historically used 18 U.S.C. 245 to prosecute hate crimes only in limited circumstances; since its enactment in 1969, there have never been more than 10 indictments brought in any year. Although this suggests that the increase would be minimal, this critical increase in indictments would more accurately represent the number of hate crimes committed in the United States every year.

The first draft of the LLEEA, then called the Hate Crimes Prevention Act, was introduced by Senators Edward Kennedy (D-MA) and Arlen Specter (R-PA), and then-Representatives Charles Schumer (D-NY), and Bill McCollum (R-FL) in 1997. The original Hate Crimes Prevention Act was first introduced at the White House Conference on Hate Crimes on November 10, 1997. The bill has been involved in every Congress since then without success. The most recent versions of the bill were introduced into the 109th Congress in May 2005.

The Hate Crime Statistics Act (28 U.S.CA 534)

Enacted in 1990, the Hate Crime Statistics Act (HCSA) requires the Justice Department to collect data on crimes which "manifest prejudice based on race, religion, sexual orientation, or ethnicity" from law enforcement agencies across the country and to publish an annual summary of the findings. In 1994, Congress expanded coverage of the HCSA to require FBI reporting on crimes based on disability, as well. By reviewing statistics and charting the geographic distribution of these crimes, police officials may be able to recognize patterns and anticipate an increase in tensions in a given jurisdiction.

While the collection and study of this data may help police recognize patterns and offenders, as well as anticipate increases in tensions and incidents, there are many flaws in the reporting system. Most importantly, law enforcement agencies are not required to participate in the reporting. In the 2000 report, 11,690 law law enforcement agencies reported their findings, down from the 1999 report in which 12,122 agencies reported, but up from the 1998 figure of 10,461 agencies. These 11,690 agencies cover 48 states and the District of Columbia (Alabama and Hawaii did not participate in the reporting), and over 85 percent of the population. Questions still abound, however, about the accuracy of the report, as evidenced by the fact that Detroit, MI, the tenth most populous city in the United States (and one known for racial tensions) reported no hate crimes in the 1999 report and just three hate crimes in 2000.

United Against Hate, the coalition of civil rights, law enforcement, and religious groups advocating passage of enhanced hate crimes legislation, encourages every law enforcement agencies to comply with HCSA by reporting hate crimes. While cities may report no incidents of hate crimes, in reality, local law enforcement officers often either do not recognize or categorize certain crimes as hate crimes. The Hate Crime Statistics Act brings hate crimes into the open, which challenges the common claim that "hate crimes do not happen in my neighborhood."

Hate Crimes Statistics Improvement Act ( H.R. 682 )

Representative Carolyn Maloney (D-NY) introduced a bill in this Congress which would add "gender" to the categories of hate crimes reported in the Hate Crimes Statistics Act. Since disability was added in 1994, gender remains the one category glaringly omitted from the reporting. The Local Law Enforcement Enhancement Act would also add gender to the report, but those working for passage of that legislation have also been very supportive of Representative Maloney's effort.

State Level Action

Currently 45 states and the District of Columbia have some type of hate crime law. Arkansas, Georgia, Hawaii, Indiana, Kansas, New Mexico, South Carolina and Wyoming have no state hate crime laws. State hate crime laws vary greatly, and in many cases do not include some of the groups that are often the targets of bias-motivated violence. For example, only 24 states include sexual orientation as part of hate crime law, and only 27 states include gender bias motivated crimes as part of hate crime law.

Hate and the Internet

The Internet, in many ways, provides the perfect forum for the expansion of hate groups and the transmission of their extremist messages. The Internet is cheap and far-reaching, as well as virtually free from governance and accountability. Not only are the more well-known hate groups, such as Tom Metzger and his monthly tabloid, WAR; the Holocaust deniers at the Institute for Historical Review; and Matt Hale and his World Church of the Creator, easily accessible online, but a simple search on any of the search engines will turn up many smaller hate groups as well. At last count, there were over 350 hate sites on the Internet.

Another major issue of hate on the Internet has to do with the explosion of shopping and collecting online. Sites like EBay and Yahoo have long provided opportunities to purchase hate-related materials. In December 2000, Yahoo's auction site listed more than 1,000 items related to the Ku Klux Klan or Nazism, including knives, robes and daggers.1However, in a recent victory for those in the fight against hate on the Internet, pressures from the French government, whose censorship laws are much different from ours, as well as from groups such as the Simon Wiesenthal Center and the Anti-Defamation League convinced Yahoo to begin monitoring their classified sites for materials that could be construed as hate-related.

Many organizations are dedicated to fighting and filtering hate on the Internet. The Anti-Defamation League produces a hate-filtering software. This is an area, however, in which we tread carefully. We are always working to balance our opposition to hate with our strong commitment to civil liberties and the First Amendment.

Position of the Reform Jewish Movement

The Union for Reform Judaism passed a resolution on "Personal Security" in 1965, which stated:

WHEREAS we are appalled at the terror and violence in certain regions of our nation, designed to induce massive resistance to civil rights, freedom and equality of all citizens, and
WHEREAS some local law enforcement authorities are unwilling or unable to ensure the safety of citizens engaged in civil rights activities,
BE IT RESOLVED that this 48th General Assembly of the URJ joins with the many religious, civic and minority groups in the Leadership Conference on Civil Rights in urging the United States Congress to enact legislation which would define assault or murder with a racial purpose or effect as a federal crime.
BE IT FURTHER RESOLVED that we appeal to President Johnson, who has provisioned powerful leadership in the struggle for racial justice, to make such legislation high priority in his administration.

Hate Crimes and Jewish Values

In the Holiness Code, in Leviticus, we are commanded both that "You shall not hate your kinsfolk in your heart. Reprove your kinsman, but incur no guilt because of him. You shall not take vengeance or bear a grudge against your countrymen. Love your fellow as yourself" (Leviticus 19:17-18) and that "You may not stand idly by when your neighbor's blood is being shed? (Leviticus 19:16). We are also taught, in the very beginning of the Torah, that "God created man in God's own image, in the image of God (b'tselem Elohim) God created him; male and female God created them" (Genesis 1:27). This quote forms the basis of much of our civil rights legislation, and is appropriate in the fight against hate crimes as well. We are all created in the Divine Image, and are therefore deserving of equal treatment. Judaism consistently teaches the importance of tolerance and the acceptance of others, even those different from ourselves. Even more than simply preaching tolerance, we must actively work to improve, open, and make safer our communities.

Further, a Midrash poses the question "Why was the Second Temple, in which people studied Torah, did mitzvot, and engaged in acts of loving-kindness, destroyed?" It goes on to give the following answer: "Because of senseless hatred. This is to teach you that senseless hatred is equal to three transgressions-idol worship, incest, and the shedding of blood." We should learn from this that in our own lives, we must constantly fight senseless hatred. According to our sages, all of our mitzvot, study, and gimilut chasidim can be negated by the existence of hatred in the world.