This article excerpted from a Political Research Associates discussion paper, available online.
In 1998, three White men in Jasper, Texas murdered James W. Byrd, Jr., an African-American man, dragging him for two miles along an asphalt road. Several months later, two men met 21-year-old Matthew Shepard, a White, gay student at the University of Wyoming, in a bar in Laramie, gave him a ride, pistol-whipped him and tied him to a fence. Shepard died from his injuries several days later.
These horrific incidents, labeled “hate crimes,” galvanized the nation. They intensified public support for laws that would add enhanced provisions to certain violations already subject to criminal penalties. These provisions include law enforcement reporting requirements, mandated training for law enforcement personnel, and civil legal remedies (permitting victims to sue for damages). Penalty enhancements could only be applied in cases where the crimes could be proved to be linked by bias and attempts to terrorize entire groups of people based on their actual or perceived race, color, religion, ethnicity, national origin, sexual orientation, gender, gender identity or expression, or physical/mental disability.1
Now let’s fast-forward to 2012 in Sanford, Florida and the killing of a Black teenager, Trayvon Martin, as he was walking home. George Zimmerman, a self-appointed neighborhood watch volunteer who entertained hopes of being a cop one day, admitted shooting Martin to death. He was charged with second-degree murder 46 days after the shooting. Many groups hailed this indictment as a victory. FBI agents have also questioned witnesses, presumably to determine if Zimmerman might be charged with a federal hate crime.2 It is worth noting that a murder charge prosecuted under federal hate crime law could carry a death sentence.
Over the past four decades, social justice advocacy groups have increasingly adopted the frame of “hate” for analyzing, describing, and responding to violence, oppression, and discrimination. Today, almost every state has enacted some form of hate crime statute, although the focus, wording, and identification of “protected” status categories differ widely.3 There are several federal hate crime laws.4
Since the 1980s, there has been a robust, sometimes fiery debate in social justice arenas over the desirability, efficacy, and possible consequences of “hate speech” law as a response to violent and dehumanizing rhetoric. An increasing number of colleges and universities have adopted policies prohibiting certain forms of speech, with the stated intention of protecting pluralism and ensuring equal educational opportunities.5
Prominent advocacy organizations, including the Southern Poverty Law Center (SPLC)6, the Anti-Defamation League (ADL)7, and Center for New Community,8 regularly monitor and report on “hate” and “extremist” groups (defined according to their own criteria). “Stop Hate” initiatives abound.9 SPLC offers an array of “teaching tolerance,” diversity awareness, and prejudice reduction educational resources for both teachers and students. Not in Our Town is a national organization that highlights community initiatives to resist, respond to, and prevent hate violence.10
The Gonzaga University Institute for Hate Studies, created to help advance an interdisciplinary field of Hate Studies and disseminate new theories, models, and discoveries about hate, began publishing the Journal of Hate Studies in 2001.11
These are significant achievements, and represent a major investment by social justice advocates, However, I believe the hate frame has had unintended, harmful consequences that social justice activists and scholars need to re-evaluate. Does calling something a hate crime or hate speech clarify or distort the nature of our struggles?
Beyond “Bad Attitudes”
No one familiar with the history of lynching and other means of enforcing racial segregation and asserting White supremacy in the United States could reasonably argue that such actions are not motivated by racial hatreds–or that hate doesn’t motivate anti-immigrant vigilantes who take it into their hands to “patrol” the U.S. Mexico border. Similarly, one could not plausibly assert that vile, anti-LGBT sentiments expressed in queer bashings and anti-gay political campaigns aren’t hateful. Hate is very much as the center of bombing and burning of Black churches, synagogues, and mosques. Hate is certainly involved when women’s health care centers are torched and abortion providers murdered.
But beyond a sense that we know hate when we feel it, we don’t know a great deal about hate itself. Is hate an emotion? A belief? A behavior? A process? An outcome? Is it innate? Learned? A mental disorder? Is it an individual phenomenon? Is it still considered “hate” when it appears in systemic form, preserved in routine actions of public and private institutions? What is its relationship to hierarchies of power, if any? Is it intrinsically violent? Is it a fixed part of human nature? Can it be corrected or healed?
Ken Stern, specialist on antisemitism and extremism for the American Jewish Committee (AJC), suggests that one working definition of hate might be “the human capacity to define, and then dehumanize or demonize, an ‘other,’ and the processes which inform and give expression to …that capacity.”12 At first glance, that seems clear and useful. But the waters muddy when we try to utilize a single frame–hate–for interpreting and responding to the actions of the following actors: individuals motivated by obvious bigotry; independent groups and networks pushing openly oppressive agendas; and the histories and systemic operation of respectable public and private institutions and entire nation-states.
The liberal version of the hate frame asserts that people who engage in bullying, threat, intimidation, and violence stand outside the circle of normalcy and mainstream standards of civic morality. “Haters” are identified as “extremists” acting outside social norms.
However, these kinds of hatreds aren’t merely about personal prejudice or “bad attitudes.” Sociologist Kathleen Blee is one among a number of social scientists and legal scholars writing about hate who recognizes that violent acts motivated by bias or hatreds “can reflect broader social institutions and cultural norms.”13
Racist and gendered violence is supremacist in nature, touting the alleged superiority of Whites over people of color; heterosexuals over queers; men over women; and a certain variety of Christianity over other denominations and faiths. Such hatreds, openly expressed and used as a focal point for organizing, intend to retain and reinforce traditional (and unjust) hierarchies of racial, gender, and economic power. As former PRA political analyst Chip Berlet notes in the Journal of Hate Studies, “Organized supremacist groups utilize and amplify the same elements of prejudice, supremacy, demonization, and scapegoating that already exist in mainstream society. [Their] ideologies, styles, frames, and narratives…are drawn from pre-existing systems of oppression buried in mainstream society.”14
Safety or Distraction?
At the time President Barack Obama signed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act into law in October 2009,15 many activists believed that with the passage of federal and state hate crime laws, law enforcement (historically a persecutor of people of color, queers, and other targeted groups) would at last protect those marginalized communities. Hate crime laws, major advocacy organizations said, would help deter and prevent hate violence. They would make our communities safer.
Unfortunately, no such message was sent or received. Violence against people of color, queers, and other vulnerable groups remains widespread. In fact, some communities are now more likely to experience harassment and abuse.16 Racial, gender, and sexual profiling permanently classify people from targeted communities as “suspicious” and “dangerous others.”
Glimpses and discussion of criminalizing processes at the intersections of race, class, gender, and immigration status are found in Queer (In)Justice: The Criminalization of LGBT People in the United States, which documents these overarching problems:
• Hate crime laws provide no pro-active protection. Highly selective enforcement of these laws typically takes place (sometimes) only after an incident is reported.
• There is no evidence that hate crime laws deter acts of violence. For example, National Coalition of Anti-Violence Programs (NCAVP) annual reports do not show any consistent reductions in reports of violent crime. But they do show recent increases, especially in murder.17
• Based on reported incidents, people of color and transgender people are disproportionately targeted for bias-motivated violence; transgender people, particularly, are at risk for murder. People of color who are transgender face especially heightened risk for being targets of violence.
The neutral wording of hate crime and related laws is “power-evasive.” When selectively enforced, these laws can morph into instruments of injustice. For example, a South Carolina anti-lynching statute intended to protect African Americans against White mob violence has transformed into a legal tool used disproportionately against young Black men–simple enough, given the law’s race-neutral definition of “mob” as “the assemblage of two or more persons, without color or authority of law, for the premeditated purpose and with the premeditated intent of committing an act of violence upon the person of another.”18
Police often treat many LGBT and HIV-affected people who attempt to report hate violence as offenders rather than as people who have suffered violence. Such “re-victimization” is especially likely if the person reporting is a person of color, transgender or gender nonconforming, poor, presumed to be a sex worker, or an immigrant. Additionally, many who are targets of hate crimes do not wish to report incidents to the police out of fear. These can include fear of not being believed, fear of additional abuse at the hands of police, fear of being reported to immigration authorities, fear of unwanted and negative publicity, and fear of reprisals.
According to NCAVP, police officers consistently constitute a major hate violence offender group; Amnesty International has documented widespread, systemic police misconduct and abuse–particularly against queers of color. Police in some jurisdictions have refused to take hate crime reports, and some reports may not be accurately classified as hate crimes under legal criteria.
Most discussions of hate violence in the United States cite annual reports from the FBI. However, as recently as 2005, the Bureau of Justice Statistics (BJS) recognized that the actual incidence of hate violence was vastly understated by the FBI. The FBI’s reports suffer from these shortcomings:
• There is no way to ensure that evaluation and classification of reported incidents are consistent across jurisdictions.
• State and local law enforcement agency participation in the FBI’s hate crime reporting program is voluntary. In 2009, for example, of the 14,422 agencies formally participating in the effort, only 2,034 actually submitted incident reports.19
• Most law enforcement agencies within a state jurisdiction do not report any incidents. For example, in 2009, only 67 out of 413 agencies in Virginia; five out of 487 Georgia agencies reported incidents. Less than half the participating agencies in California reported incidents.
• The FBI does not report clearly, if at all, on violence or other hate crime offenses committed by law enforcement authorities.
Making the Change We Need
If hate is a social problem, and not just a matter of individual psychology, then intensified policing and enhanced punishments cannot create safe and just communities.
Does that mean every concept in hate crime law is worthless? Not at all. Most of us would probably all agree, for instance, that documentation, reporting, and analysis of violence directed against targeted groups are essential. We should not stop being concerned about White supremacist, neo-Nazi, and other groups that are rooted in fear, intimidation, and violence. There is a strong argument for, and tradition of, identifying, monitoring, and exposing virulently bigoted groups and individuals in order to interrupt their actions and minimize their influence on the larger culture and mechanisms of the state. Political Research Associates, SPLC, Center for New Community, Institute for Research and Education on Human Rights, and other organizations have been doing this for many years.
SPLC suggests that the most recent expansion of “right-wing extremism came even as politicians around the country, blown by gusts from the Tea Parties and other conservative formations, tacked hard to the right, co-opting many of the issues important to extremists.”20 Yet it is often difficult to distinguish between the messages of “hate” groups and the actions of leaders in public and private institutions.
We should also ask how federal hate crime commitments to respond to violence against “protected” groups square with other federal programs, such as “Secure Communities” (S-Comm) which automatically compares fingerprints submitted by local law enforcement agencies against Immigration and Customs Enforcement Agency (ICE) databases–a program slated to be mandatory nation-wide by 2013. Marketed as a program to locate and deport criminal immigrants, in practice, S-Comm is deployed against immigrants regardless of criminal background.21
But we also need resist the easy demonizing of “criminals” and challenge our overreliance on the legal system to produce community safety. After all, processes of criminalization, selective law enforcement, and mass incarceration are structural ways of devaluing and destroying the lives of people of color, poor people, immigrants, and queers.
How do liberal and progressive groups and leaders go beyond our now well-established pattern of responding to one egregious act of hate violence or police brutality after another with little more than outraged demands for more policing, prosecution, and punishment? Even when these demands are fulfilled in individual cases, the structures of violence and injustice remain intact. As Ejeris Dixon, former coordinator of the Audre Lorde Project’s Safe OUTside the System (SOS) Collective once observed, “It’s easier to talk about hate than power.”22
We must turn to community-based strategies that seek to address structures of violence as well as individual acts. To that end, we might better focus our efforts on increasing the capacity of (underfunded and overstressed) community-based anti-violence organizations and coalitions committed to collecting, analyzing, and reporting anti-violence data that includes law enforcement as an offender category.
A growing number of “movement building” initiatives have emerged to help equip social justice advocacy groups with the additional knowledge, tools, and resources essential to expanding their capacity to organize for lasting change, and intersectional organizing is taking root in new ways. For instance, the federal government’s S-Comm program has been met with growing opposition from surprising allies. Law enforcement officials, state and local governments, and dozens of LGBT organizations have joined to protest programs and laws that restrict and criminalize immigrants.23And while Critical Resistance, INCITE! Women of Color Against Violence, families of prisoners, former prisoners, and others have long educated about and organized to oppose the prison industrial complex, resistance to mass incarceration is now expanding rapidly to include new networks of civil rights groups, students, faith communities, and others.24 They are finding new ways to address violence in their communities without overreliance on the criminal legal system.
It’s time to build on the best of our histories, deepen and expand our vision, take in some fresh air, and redouble our efforts to create, in the words of Angela Y. Davis, “new terrains of justice.”25
Read a response from Rinku Sen, Applied Research Center (ARC) executive director.
Read a response from Pat Clark, former director of Southern Poverty Law Center’s Klanwatch program.
Read a response from Rahsaan D. Hall, Deputy Director of the Lawyers’ Committee for Civil Rights and Economic Justice.
1-The most widely-used template for hate crime laws was developed by the Anti-Defamation League in 1981 to address continuing harassment, intimidation, and violence motivated by the actual or perceived race, religion, or national origin of the victims. In time, sexual orientation and gender were added to the ADL template and to some hate crime laws. Other status categories such as actual or perceived disability, gender identity or expression, ethnicity, ancestry, political affiliation, and marital status could also fit neatly into the model. State laws vary widely with regard to included status categories.
2-“FBI may charge George Zimmerman with hate crime,” WFTV Channel 9 Orlando, May 14, 2012.http://www.wftv.com/news/news/local/fbi-seeks-charge-george-zimmerman-hate-crime/nN5pR/
3-For a useful overview of hate crime laws in the United States, and differences among them, see Bryce Therrien and Nadia-Elysse Harris, Criminalizing Hate: America’s Legislative Response to Bias Crimes (New York: Tribeca Square Press, 2011).
4-Federal hate crime laws include the 1990 Hate Crime Statistics Act (28 U.S.C. 534); the Hate Crimes Sentencing Enhancement Act, enacted into law as Section 280003 of the Violent Crime Control and Law Enforcement Act of 1994; the Violence Against Women Act (VAWA) of 1994 (42 U.S.C. 13981), which provides authority for domestic violence and rape crisis centers and for education and training programs for law enforcement and prosecutors. VAWA includes a civil remedy for victims of gender-based violent crimes which provides them with the right to compensatory and punitive damage awards as well as injunctive relief; the 1996 Church Arsons Prevention Act (18 U.S.C. 247). In 2009, the most recent federal bill, the James Byrd, Jr. and Matthew Shepard Hate Crimes Prevention Act was signed into law. This statute provides the U.S. Department of Justice (DOJ) with the authority to assist with investigation and prosecution of state and local hate crimes motivated by bias based on the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of the person targeted, or step in where local and state officials fail to do so. It also includes a provision to strengthen the state and local investigation and prosecution of youth-committed hate crimes and requires the Federal Bureau of Investigation (FBI) to track statistics based on gender and gender identity, just as it has done for the other status categories.
5-For powerful arguments drawing on direct experience of injury from racist hate speech that favor a First Amendment interpretation that recognizes such injury, see Mari J. Matsuda et al, Words That Wound: Critical Race Theory: Critical Race Theory, Assaultive Speech, and the First Amendment (Boulder, CO: Westview Press, 1993). For a different perspective, but one that also departs from “First Amendment absolutism,” see Anthony Lewis, Freedom for the Thought That We Hate: A Biography of the First Amendment (New York: Basic Books, 2010). See also Timothy C. Shiell, Campus Hate Speech on Trial (Lawrence, KS: The University of Kansas Press, 2009).
8-The Center for New Community monitors anti-immigration groups in the United States. Please see their website:http://www.newcomm.org/content/category/9/61/92/
9-For example, Campus Pride, an organization for student leaders and campus groups working to create a safer college environment for LGBT students across the United States, sponsors a program called Stop Hate that provides educational resources and training to those who want to stop hate crimes on campus, please see: http://stophate.org/aboutus.html; United Methodist Women (UMW) have a “When We Hate: UMW Anti-Hate Campaign” online at http://gbgm-umc.org/umw/anti-hate/.
10-Not in Our Town. http://www.niot.org/
11-“About Us,” Gonzaga University Institute for Hate Studies.http://guweb2.gonzaga.edu/againsthate/aboutus.html
12-Kenneth S. Stern, “The Need for an Interdisciplinary Field of Hate Studies, Journal of Hate Studies Vol. 3, No. 2 (2004), 11. This is an abbreviated version of his working definition of Hate Studies, which also includes the study of ways of controlling, curtailing or combating the capacity to define, demonize, and dehumanize others.
16-For example, Queer (In)Justice documents ways in which racial profiling distorts the routine policing as well as policing of hate crimes and domestic violence reported by LGBT people; police often profile LGBT people of color as intrinsically “criminal,” aggressive, and dangerous, including in predominantly White, gay urban enclaves where they are “perceived by police and residents to be criminally ‘out of place.'” SeeJoey Mogul, Andrea Ritchie, and Kay Whitlock, Queer (In)Justice: the Criminalization of LGBT People in the United States (Boston: Beacon Press, 2011), 128–129, 45–68 and 118–140. See also Amnesty International, Stonewalled: Police Abuse and Misconduct against Lesbian, Gay, Bisexual, and Transgender People in the United States (New York: Amnesty International USA, 2005, 66–87.
17-NCAVP data for 2010, released after the publication of Queer (In)Justice, documented an increase of 13% in reports of violent crime by LGBTQ and HIV-affected people and 27 murders, the second highest yearly total ever reported. Reports can be downloaded from the NCAVP website at http://www.avp.org/ncavp.htm.
18-Mogul, Ritchie, and Whitlock Queer (In)Justice, 127-8. See also Allen G. Breed, “State Lynching Law Now Used Mostly Against Blacks,” Associated Press, 2003. http://newsmine.org/content.php?ol=security/civil-rights/lynching-law-used-against-blacks.txt
20-Southern Poverty Law Center, “SPLC Hate Group Count Tops 1,000 as Radical Right Expansion Continues,” by Mark Potok, February 23, 2011. http://www.splcenter.org/blog/2011/02/23/new-report-splc-hate-group-count-tops-1000-as-radical-right-expansion-continues/
21-See, for example, Stokely Baksh, Julianne Hing, and Renee Feltz, “Secure Communities 101: Here’s What You Need to Know,” ColorLines, May 25, 2011.http://colorlines.com/archives/2011/05/secure_
23-See , for example, Restoring Community: A National Community Advisory Report on ICE’s Failed “Secure Communities” Program, prepared by a commission comprised of 18 national and community-based organizations, August 2011. http://www.detentionwatchnetwork.org/node/2824
See also Community United Against Violence, “LGBT Organizations Come Out for the Immediate Elimination of ICE’s ‘Secure Communities; Program,” October 11, 2011. http://www.cuav.org/article/11
24-See, for example, a listing of groups/networks organizing against mass incarceration on Michelle Alexander’s The New Jim Crow website athttp://www.newjimcrow.com/action.html.