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Cops Have No Idea If Hate Crime Laws Stop Hate Crimes

..and other things I learned when I spoke at a U.S. Commission on Civil Rights briefing.

LhamonScreenshot via CSPANOn Friday, I had the privilege of testifying at a U.S. Commission on Civil Rights briefing about whether the government needs to do more to prevent hate crimes. It was an informative, entertaining, and at times combative event, given that two of the eight commissioners—Gail Heriot (a Volokh Conspiracy contributor) and Peter Kirsanow—seemed to agree with me that the 2009 federal Hate Crimes Prevention Act was ill-advised.

The U.S. Commission on Civil Rights is charged with investigating and compiling reports on various civil rights issues; it relies on 51 state-based advisory committees to make recommendations. (In addition to testifying at this briefing, I am a member of the D.C. advisory committee.) The commission's current chair is Catherine Lhamon, whose Obama-era stint as an assistant secretary at the Education Department I have criticized for undermining due process on campus. (I should note that despite our disagreements, Lhamon has been incredibly friendly to me in person.)

The event—"In the Name of Hate: Examining the Federal Government's Role in Responding to Hate Crimes"—began with Lhamon's introductory remarks. Then she yielded the floor to Heriot, who took a few minutes to explain why she was dissenting from the day's proceedings.

"Let me say that I am not really a fan of most hate crime laws, which I believe have a tendency to fuel identity politics at a time when the nation needs to come together," said Heriot. "In particular I oppose the federal hate crime statute passed in 2009."

The 2009 law added gender, gender identity, sexual orientation, and disability status to the list of protected classes, and it established that a person no longer needed to be involved in a federally relevant activity (like voting) in order to be deemed a victim of a federal hate crime. This was a vast expansion of the federal government's ability to prosecute people for hate crimes, and it poses significant "double jeopardy" concerns, because it gives federal officials the opportunity to re-try defendants who survived state-based prosecutions.

"The [double jeopardy] clause does not apply when both the state and the federal government seek to prosecute the same defendant," Heriot explained.

After Heriot voiced her objections, the first panel began. The participants were several members of local law enforcement departments from around the country, an assistant attorney general, and me. In my remarks, I urged public officials and the media to avoid blurring the distinction between hate crime­—leveling additional penalties against people whose criminal actions impugned a special class—and hate speech, which is protected expression under the First Amendment. I also stressed that while we hear many pundits asserting that hate crimes are on the rise, this fact is not clearly supported by the available data. The hate crime rate has remained essentially unchanged over the last decade; moreover, the purported "Trump effect" in American schools is difficult to parse and possibly overstated. (Consider, for instance, the number of unsolved or outright hoax bias incidents on college campuses.) As I said in my remarks:

I do not suppose that a large percentage of hate crimes are hoaxes, but since perpetrators on campuses are seldom apprehended, it's difficult to know what proportion of the incidents were exactly what they seemed to be. That makes life difficult for the authorities who are trying to compile and publicize relevant, accurate information.

In conclusion, I would urge policymakers, law enforcement, and other authorities to resist media pressure to characterize the current atmosphere in the U.S. as one of increasing hatefulness. While the government can and should continue to track and prosecute criminal activity, we must remember that our cherished First Amendment freedoms are often the first casualty of government-led efforts to crack down on undesirable behavior. There are vastly fewer protections for free expression in other countries, and we see the costs of that every time. Scotland, for instance, recently arrested and fined YouTube comedian Mark Meechan for committing a hate crime. What was this crime? The man made a joke video of his girlfriend's dog performing a Nazi salute. He concludes the video by noting, "I'm not a racist, by the way." He just really wanted to tick off his girlfriend.

And in Liverpool, a young woman named Chelsea Russell was reported to a hate crime unit for posting the lyrics to a rap song by the musical artist Snap Dogg on her Instagram page. She was doing this in tribute to a young man who had been struck and killed by a car and had enjoyed the song. The authorities never charged anyone in connection with the young man's death, but they did arrest Russell. She was convicted at trial. The judge said, "There is no place in civil society for language like that." She will have to wear an ankle monitor for eight weeks.

These hate crime arrests in the U.K. underscore the need for officials in our own country to remain cognizant of the line between hate speech and hate crime, and to avoid fatalism and pessimism when considering whether the reach of hate is growing.

While the other panelists seemed more enthusiastic about involving federal authorities in hate crimes prevention, they provided ample reason to doubt everything we think we know about the prevalence of hate crimes. Several panelists conceded that 88 percent of the police departments that bothered to submit hate crime information to the feds in 2016 reported zero hate crimes. Four municipalities that include more than 250,000 people apiece didn't report any information whatsoever. Baltimore County—population: 831,000—reported just one hate crime.

Assuming that there was probably more than one hate crime in Baltimore County last year, this suggests there's massive room for improvement when it comes to local hate crime reporting—and that better reporting might very well make it look like hate crimes are spiking. For instance, if the same county reported five hate crimes next year, it would seem like hate crimes had increased by 500 percent.

Some of the panelists conceded that they are often dealing with very low numbers, and with degrees of subjectivity. Chief Marc Green of the Seattle Police Department said that both "non-criminal bias incidents" and "crimes with bias elements" had risen substantially in the past year, but under questioning from Heriot he eventually admitted that non-bias crimes had risen as well.

There's an important distinction, of course, between "non-criminal bias incidents" and "crimes with bias elements," in that the former category includes things that are not actually crimes, though the authorities may track them anyway. And though the briefing was ostensibly aimed at combatting hate crimes, some latter participants did indeed discuss the work their organizations were doing to track and counter hate-filled speech—which is fine if you're an advocacy group, but constitutionally suspect if you're the government. During the panel that took place after mine, Melissa Garlick of the Anti-Defamation League said the following:

Over the past few years we've seen hate-filled language, memes, stereotyping, and scapegoating injected into the mainstream of America's political and policy debate, especially through traditional and social media. Over the course of the 2017 election we saw a level of anti-Semitism and the normalization of bigotry that deeply concerned us at ADL. And now we see rhetoric which involves stereotyping and attacks based on national origin, religion, and physical appearance cemented into federal policies and executive actions that marginalize communities already vulnerable to hate crimes and deter these individuals from reporting such crimes to local police. Our recent audit on anti-Semitic incidents showed that the number of incidents remained significantly higher in 2017 compared to 2016, with an increase of 57 percent. Now, these incidents include both criminal and noncriminal acts of harassment, but they provide an important snapshot into trends of anti-Semitism in our society.

Probably the best argument against strengthening federal hate crime prevention efforts was articulated by Commissioner Kirsanow, who asked just two questions during my panel. He directed his questions to all of us, and invited anyone who possessed the information to answer.

"Are you aware of any data, studies, or other evidence, that shows designating a crime a hate crime deters, prevents, or reduces that crime, and second, whether designating a crime a federal hate crime reduces, deters, or prevents incidents of that crime?" he asked.

Neither I nor any of the other panelists were aware of such information, and so the panel fell silent.

Kirsanow continued. "Then, one other question: are you aware of any databases, study, or other evidence that shows designating a crime a hate crime, whether a municipal, federal, or state crime, assists in the resolution of that crime or the apprehension of the perpetrator?" he asked.

Again, silence.

"Thank you, Madame Chair," he said, yielding the floor.

The entire briefing was streamed on C-Span. To watch the first part, which includes my panel, go here. Video of the rest of the briefing is available under the "More Videos from USCCR Hate Crimes" heading, midway down the page.

Photo Credit: Screenshot via CSPAN

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  • Jerryskids||

    What have you done to your hair?!?! It looks terrible in that pic!

  • Aloysious||

    Clearly, Rico is culturally appropriating blackness by becoming a trans-sexual-racialist.

  • Ben of Houston||

    Seriously, all this important talk about the law, and that's what you take away from this?

  • Just Say'n||

    How long did it take you to do your hair before going to testify?

    In all seriousness, kudos to you for having the balls to make an unpopular argument. Prepare to be unpersoned and then denounced by BUCS (aka Nick Sarwark).

  • Diane Reynolds (Paul.)||

    (I should note that despite our disagreements, Lhamon has been incredibly friendly to me in person.)

    Careful, Robby, that's how it starts.

  • DajjaI||

    One of the funniest things I ever saw was a hate crimes panel in CA a year ago or so where the Muslim panelist came up and complained that they needed hate crime protection from the whites and Jews, and the Jew complained she needed protection from the blacks and Muslims and the blacks wanted protection from everyone. And a Republican lawmaker asked, "Maybe you guys can get together and see if you can work out your issues among yourselves before asking us to intervene and try not to make everything worse?"

  • MasterThief||

    Is there video of this? Sounds hilarious

  • damikesc||

    If they have no idea...then rest assured, no, they do not stop hate crimes.

    At all.

  • Colossal Douchebag||

    It's not that they don't know, it's that they don't care.

  • Bearded Spock||

    Listen Robby, if you're going to demand that politicians pass laws that are both necessary and effective then the Bad Guys will win.

    Can't we just agree that for a law to be good it only has to make people feel better? Think of all those police, court, and prison jobs that depend on useless legislation.

  • MatthewSlyfield||

    "Can't we just agree that for a law to be good it only has to make people feel better?"

    No, we can't.

  • Tony||

    Can't the deterrence question be asked of any prohibition? A proper hate crime law is about punishing a behavior that is considered different from that same behavior with a different motive (as we treat murder).

    (And that's just a question. I'm not expressing a view on hate crime law. In general I think this country should punish crime less rather than more.)

  • nonerrata||

    I would much rather punish activity/behavior, rather than intent/thought. One is apparent and visible whereas the other requires someones opinion.

  • Elias Fakaname||

    Tony loves to legislate people's fate based on his opinion! As moronic and Marxist as he is.

  • Illocust||

    Damn, rarely does real life line up so well with movie like staging as Kirsanow's comments. Kudos to him. It won't make a difference, but still kudos to cutting to the quick of the issue.

  • Ben of Houston||

    That last bit is the most important. It doesn't matter how wonderful, how necessary, or how important a cause is or how elegant the solution. If the solution doesn't work, then it shouldn't be done.

    There's no real evidence that hate crime statutes work outside of outright corruption.
    Now, let's not throw the baby out with the bathwater. The origin of these laws was white juries refusing to prosecute crimes against blacks even when there was overwhelming evidence. That's important. That's why it overrides double-jeopardy. However, adding hate crime status to an already-functioning criminal system is pointless.

  • nonerrata||

    Bullshit! the origin was to increase penalties...Penalty-enhancement hate crime laws are traditionally justified on the grounds that, in Chief Justice Rehnquist's words, "this conduct is thought to inflict greater individual and societal harm.... bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest."[62] got nothing to do with jurors.

  • DarrenM||

    provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest

    Or, we could all learn to grow a little thicker skin. I suppose it's so much easier to put the burden on government employees.

  • shawn_dude||

    My opinion of hate crimes laws is mixed. I am 100% in favor of designating and reporting bias-based crimes. I think the information is useful at both a local and national level.

    Having said that, I don't know if I'm all that keen on making a bias crime more "criminal" than a non-bias version of the same crime. (But here is where I waffle on that... consider a swastika spray-painted on the garage door of a Jewish family. That is more like a threat than just graffiti/vandalism. I think the implied threat is the real crime there and the bias is what defines it. But beating up someone because you're a jerk or beating them up because they are gay should carry no sentencing difference.)

  • Ride 'Em||

    But doesn't that go to punishment? The crime in both cases is the same, the difference goes to motive and should be considered in the sentencing section of the trial.

  • nonerrata||

    Not motive, but outcome. The swastika isn't just graffiti, it is a threat. So it is 2 crimes and should have a more severe punishment. No need to look at intent.

  • Fk_Censorship||

    What if the person drawing the swastika just wanted to wish their Jewish neighbors Happy Diwali?

  • DarrenM||

    The Swastika is also considered to be an auspicious symbol by many. It's only a threat if it's interpreted as a threat and that is subjective.

  • Elias Fakaname||

    Wow, you actually make some kind of sense here. That's a good point. A beating doesn't feel any different because the person beating you is a surly asshole, or scorchingly anti Semitic. I still don't think the hate aseoct is really relevant though. What is important is if there is a coordinated effort, like we used to have in the NW with the Aryan Brotherhood. That kind of organized activity is provable, and one can make a case for more aggressive sentencing guidelines for that kind of organized violence.

  • Juice||

    "The [double jeopardy] clause does not apply when both the state and the federal government seek to prosecute the same defendant," Heriot explained.

    Based on the wording of the amendment, I don't see why not.

    nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb

    Doesn't say shit about different jurisdictions.

  • Gaear Grimsrud||

    The hate thing is a separate offense so while the state and federal government both seek to prosecute the same defendant he's not being prosecuted for the same crime. See how that works? Pretty cool huh?

  • DarrenM||

    So, just hating (a thought crime) would be illegal, or is it that saying something the hearer deems "hateful" regardless of intent supposed to be the crime?

  • Elias Fakaname||

    It has to be ? What if you're just a big meanie?

  • Ben of Houston||

    The reason for this is during the civil rights era, white juries in the South made it legal to lynch blacks by refusing to convict the criminals responsible. Thus, federal hate crimes were invented. That way they could convict you of violating someone's civil rights even if the local jurisdiction had found you not-guilty.

    It's a rules-patch to a problem that is, thankfully, almost entirely solved. It was necessary at the times, and might still be necessary in the future, but it is a hammer that should be wielded rarely and with care.

  • Entropy Drehmaschine Void||

    The entire concept of "Hate Crime" is bullshit.

    Enhanced penalties because of political identification is a blatant violation of the First and Fourth Amendments.

    Period.

    That being said, excusing crime because it was against a particular group is equally egregious.

  • ThomasD||

    This.

    Hate crimes, like anti-discrimination laws applied to private citizens, seek to punish people for wrongthink.

    Conversely the government should not ignore certain crimes because the perp, or victim were identified of or with any particular group, anymore than they should discriminate based upon the same.

  • Entropy Drehmaschine Void||

    The entire concept of "Hate Crime" is bullshit.

    Enhanced penalties because of political identification is a blatant violation of the First and Fourth Amendments.

    Period.

    That being said, excusing crime because it was against a particular group is equally egregious.

  • Entropy Drehmaschine Void||

    Except squirrelz.

    Crimes against squirrelz should be celebrated.

  • SIV||

    They could've found a better token cuck than Robbie. Weren't any of those guys at the National Review available?

  • Liberty Lover||

    A crime is a crime. What matter is you committed that crime, not why you committed the crime.

  • Peter||

    I will let you have your Hate Crime law, only if I get to define what constitutes a Hate Crime.

  • ||

    Good for you Robby.

    I still won't let you off the hook if I see more 'to be sure' though.

    The U.S. has to stay clear of what was done in the UK and the misguided laws we have in Canada. You have proof of how ugly these things can get where freedom of speech, opinion and association are concerned. You needlessly weaponize identity politics through such nonsense.

    As for the hate hoaxes, there have been a couple in Canada as well. One in which roped in the idiot Justin who opened his puerile trap before it was investigated properly. Once it was, it was determined the 11 year-old made it all up.

    Whatever happened to the story about the alleged hate *crime* at Lebron's house?

  • ||

    It so happens me and a fellow (former) Reasonoid visiting from NE the big Mtl. took in a Doug Stanhope show last night.

    All I can say is, you try and tag him with 'hate speech' or apply 'hate laws' to his act.

    Which was very good I might add.

  • ||

    What, no mention Margot Kidder died?

  • ||

    Woops, wrong thread. Apologies. Lol.

  • Cloudbuster||

    Why do you hate Margot Kidder?

  • Azathoth!!||

    Let him off the hook?

    Good job for taking an unpopular stance?

    Were you reading the same piece?

    Assuming that there was probably more than one hate crime in Baltimore County last year

    Why? Why would you assume that? Why give the idea that there is even such a thing as a 'hate crime' any justification whatsoever?

    88% of the people who bother to report at all say that they have ZERO hate crimes.

    Let's be blunt--There are no hate crimes. Let's take that stance. There's no line of distinction to be blurred between ACTUAL hate crimes and those caught by the wider designation because there are no hate crimes.

    Say THAT to the panel.

    Speak TRUTH to power.

  • Mark22||

    Is that a picture of Robby Soave after his transition?

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