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Proposed Hate Crimes Bill Isn't Needed

Justice: Yes, it shows Congress cares about violence. But most prosecutions belong at the local or state level.

July 27, 1998|JAMES B. JACOBS and KIMBERLY POTTER | James B. Jacobs is a professor and director of the Center for Research in Crime and Justice at New York University School of Law. Kimberly Potter is senior research fellow at the center. They are co-authors of "Hate Crimes: Criminal Law and Identity Politics" (Oxford University Press, 1998)

In early July, the U.S. Senate held hearings on the Hate Crime Prevention Act of 1998. The act would make a violent crime into a federal crime if it is motivated by racial or religious bias. This would constitute a major expansion of federal jurisdiction, indeed only a small step from federalizing all violent crime. Any street mugging would be covered by the law if the perpetrator chose the victim on the basis of race.

It also would be a federal crime if the perpetrator's motivation were related to the victim's national origin, gender, disability or sexual orientation, provided the victim was acting in some way that affects interstate commerce--probably not much of a limitation since courts have held that almost anything, from driving on a highway to checking into a hotel, involves interstate commerce.

Currently, federal law prohibits crimes motivated by race, color, religion or national origin only if they involve violation of a federally guaranteed right, such as voting.

While expanding the definition of hate crimes covered by federal law sounds like a good idea, it is just another example of Congress churning out symbolic legislation. Federal politicians congratulate themselves for being opposed to prejudice (except for those who dislike homosexuality). They promise federal recognition and action without any concern about the extent and comparative advantage of federal resources. What's more, the constitutional limitation on federal jurisdiction is treated like some technical impediment that gets in the way of solving a crisis or, in this case, an asserted epidemic.

The truth is that there are very few ideologically driven, violent bias crimes. Those that do take place also violate state murder and assault statutes. Texas prosecutors, for example, are going to seek the death penalty in the case of the white defendants charged with killing a black man by dragging him behind a pickup truck. There is nothing that the federal government could do except perhaps take the case away from the state authorities in order to demonstrate the moral superiority of federal law enforcement.

The vast majority of persons arrested for violating state hate crime laws are confused and antisocial juveniles acting on their own or in a peer group, not hard-core neo-Nazi ideologues. The underlying criminal conduct in the majority of these arrests is harassment, vandalism and graffiti, not murder and aggravated battery.

As they are now, the federal criminal laws that punish violation of federal constitutional and statutory rights are used fewer than a few dozen times a year. That should not be surprising because the conduct that they punish almost always violates state and local laws as well. The federal government's constantly expanding reach (for example, making it a federal crime to carry a gun to school) has added to the citizenry's confusion about which level of government is responsible for what.

In fact, there is no need for federal law enforcement agencies to become involved unless corruption or gross incompetence causes a total breakdown of local law enforcement effectiveness. Federal investigators and prosecutors should not step in simply because there has been an unpopular acquittal in state court or because a particular crime gets national attention or offends an important interest group.

Furthermore, federal law enforcement resources are very limited. There are approximately 10,500 FBI agents compared with 550,000 state and local police personnel.The FBI and the U.S. attorneys' offices, even with added staffing promised as a part of the bill, cannot function as front-line law enforcement agencies. The more state and local business that is assigned to them, the fewer resources available for distinctively federal crimes like terrorism, counterfeiting, espionage, major drug importation, money laundering, organized crime and political corruption.

The hate crime bill's chief sponsors--Sens. Edward M. Kennedy (D-Mass.), Arlen Specter (R-Pa.) and Ron Wyden (D-Ore.)--seem to recognize that the FBI cannot possibly become the front-line law enforcement agency for interracial, intergender and other intergroup crimes. Notwithstanding that fact, victims and advocacy groups can be counted on to demand the intervention of the FBI and federal prosecutors, if only to demonstrate the importance of a particular incident or because they believe that the local police are not doing enough.

The FBI and the Justice Department will find themselves under constant political pressure to intervene. The acquittal of racist and other bigoted defendants in state court will regularly trigger demands for subsequent federal prosecutions. Meanwhile the agencies' other priorities will get less attention.

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