What Is a Hate Crime?

In March 1997, the National Review put a parody of President Bill Clinton and first lady Hillary Rodham Clinton on the cover -- complete with slanted eyes and buck teeth. Asian Americans were enraged -- including longtime advocate Daphne Kwok, who denounced the parody on NBC’s Today Show.

Soon afterward, an anonymous caller left a message that said in part: “You know you people are lucky we let you stay in this country. You dumb gooks should all be sent back to China.”

Was the caller or the National Review guilty of a hate crime?

Probably not, says Victor Hwang of the Asian Law Caucus, who points out that much hateful speech is protected by the First Amendment. “There has to be an immediate threat of physical violence, if not actual violence, to constitute a hate crime.”

Kathy Feng, a lawyer for the Asian Pacific American Legal Center of Southern California, explained that the 1990 hate crime law and proposed updates that are now before lawmakers target potential actions, not thoughts. The legislation “addresses violent bodily injury; it does not prosecute hate thoughts.”

Nor is it always a hate crime when a white person targets a minority. Opponents have argued that recognition of hate crimes elevates minorities and thus violates the equal protection clause of the U.S. Constitution, but FBI statistics, ironically, show that whites are the second most likely group to be victims of racially-motivated violence, with 1,554 cases in 1995.

In 1993, for example, a black defendant was accused of exhorting young black men who had just seen the movie Mississippi Burning to attack a white man. According to court documents, the defendant called out: “There goes a white boy; go get him.”

The defendant was charged under the state’s hate crimes statute, which provides for harsher sentencing in cases in which an attacker intentionally selects a victim because of racial or other characteristics. The case, Wisconsin v. Mitchell, went all the way to the Supreme Court, where the justices unanimously ruled that free speech does not apply to utterances that directly incite others to crime.

A SPECIAL VICIOUSNESS

Hate crime statutes, which usually cover race, religion and ethnicity, and in some states gender and sexual orientation, allow judges to stiffen sentences against already-convicted defendants, given that someone who seeks to harm a large group of people poses an arguably greater threat than one targeting a specific individual. Hate crimes also have an exponentially greater power to spread fear.

In 1997, the FBI tallied 8,049 incidents. From 1991 to 1997, 40 percent of hate crimes were committed against African Americans and 15 to 20 percent involved religion. Anti-Asian crimes accounted for less than 10 percent of the total.

Advocates at the National Asian Pacific American Legal Consortium say those figures are only the tip of the iceberg. This year alone, it says, at least five Asian Americans have lost their lives to hate: Kanu Patel and Mukesh Patek of Maryland; Won-Joon Yoon of Indiana; Naoki Kamijimi of Illinois; and now Joseph Ileto of California.

Hate-motivated attacks are twice as likely as other ones to result in hospitalization, and more perpetrators are out to kill, according to the Leadership Conference Education Fund. The majority of offenders are motivated by the “thrill associated with the victimization.” Only a few are avowed white supremacists like Buford Furrow, held in the shooting of Ileto; or Nathaniel Smith, who shot Yoon and a black man before killing himself this summer, experts say.

DUELING BILLS

Two competing proposals, the Hate Crime Prevention Act (Senate Bill 622) and the Hatch Hate Crimes Act (Senate Bill 1406) are currently before Congress.

Both the former, sponsored by Sen. Ted Kennedy, D-Mass., and the latter, sponsored by Sen. Orrin Hatch, R-Utah, would provide greater resources for states and federal investigators to track hate groups -- which Feng says might have prevented Ileto’s death.

“Before coming to L.A., Furrow had accumulated quite an arsenal of weapons, and there were a lot of people who ... knew about his views,” she said. “A lot of times there are hints and clues that this is someone who poses a danger to public. We’d like to see our law enforcement has the capacity to spot those signs and intervene before someone dies or children shot.”

Kennedy’s bill, which advocates say is the stronger of the two, passed the Senate in July and is now before the House Judiciary Committee. It would expand the federal government’s jurisdiction over investigating and prosecuting cases, and would expand protected classes to include sexual orientation, gender and disability. (Although California state law covers gender, sexual orientation and disability-motivated crimes, federal law does not.)

Kennedy’s bill would also do away with restrictions in the 1990 law that covers only victims engaged in certain federally protected activities -- such as serving on a jury, voting, or attending a public school.

“What if someone is targeted and shot in their own home? These are loopholes,” said Feng, a supporter of the Kennedy bill.

Backers of Hatch’s bill, which would also amend the 1990 law, says much of the legislation should be left to states. It would not expand the law to cover sexual orientation and would federal prosecution largely in cases in which state lines have been crossed, though federal authorities may provide assistance if asked.

“It is imperative that any measure abide by the constitutional limitations imposed by Congress, and be cognizant of the limitations on Congress’ enumerated powers,” stated Hatch in a prepared statement.

The senator’s conservative stance on such issues is believed to be a key reason why he has for over a year delayed Bill Lann Lee’s formal nomination as assistant attorney general for civil rights.

Margaret Fung, executive director of the Asian American Legal Defense and Education Fund, said this summer’s killings “demonstrate that racism and bigotry are alive in America. Bill Lann Lee should be approved immediately so that he can continue the fight for equality.”

But constitutional law professor John Yoo says he believes Hatch’s bill has a better chance of surviving constitutional scrutiny. “As the Kennedy bill is written, it has a lot of problem justifying the extension of federal power to states,” said the Boalt academic, who has testified against the bill.

Yoo predicted that the constitution would not allow further extension of federal power into monitoring hate crimes. “Hate crimes are bad and [the Kennedy bill’s] goals are noble, but the constitution only allows you to achieve those goals in certain ways,” he said, arguing that federal intervention is called for only when interstate matters are at stake. “The solution to every problem is not necessarily another federal law.”

Citing a Supreme Court decision that ruled states could not keep guns out of school zones, Yoo said, “If guns in schools don’t merit federal involvement, it’s hard to see how hate crimes do.”

Advocates of the Kennedy bill argue that the societal impact of hate crimes -- most recently the gender-motivated slayings of four women near Yosemite -- mandate quick action. “Hate crimes is a nationwide problem and deserves a national response,” responded Aryani Ong, a Legal Fellow National Asian American Legal Consortium.

“What isn’t a national problem?” countered Yoo. “If that’s the definition of what the federal government can legislate, then the federal government can pass any laws. That’s not the way the Constitution is written.

“Obviously hate crimes are a problem, but it seems like the states can handle it. The guy in California should be and will probably be executed.”