Two bicyclists were riding down a country road in Wyoming in early October 1998 when they noticed what appeared to be a scarecrow tied spread-eagle to a split-rail fence. Upon further investigation, they discovered that the scarecrow was actually a young man who had been so badly beaten that he was in a coma. The man was Matthew Shepard, a gay student at the University of Wyoming in Laramie. The night before, Shepard had been in a bar where he tried to pick up two men, Russell Henderson and Aaron McKinney. The two lured Shepard out to their truck by pretending to be gay, then robbed him of $20, pistol-whipped him, and lashed him to the fence, where he remained in near-freezing temperatures for almost eighteen hours before his discovery. Four days later, Shepard died, never awakening from his coma.
Shepard’s murder was immediately branded a “hate crime” by gay activists and those who monitor such crimes. A hate crime is generally understood to mean a crime against a victim who is chosen specifically because of his or her race, religion, gender, national origin, disability, and in some states, sexual orientation. While “hate crime” is a relatively new addition to legal terminology, appearing about the mid-1980s, it is not a new concept. According to James B. Jacobs and Kimberly Potter, authors of Hate Crimes: Criminal Law and Identity Politics, American history has seen many notorious incidents of anti- Semitic, anti-Catholic, xenophobic, homophobic, and antiblack violence. However, Americans have been increasingly less accepting of bigotry since the civil rights era of the 1960s, and hence, the emergence and acceptance of the distinct category of “hate crime.”
In 1990 Congress passed the Hate Crime Statistics Act, which required the Department of Justice to collect and publish statistics about crimes that were bias-related. As a result, reporting of such crimes increased dramatically. An index of newspapers showed that only eleven articles about hate crimes were published in 1985. In 1990, there were 511 references to hate crimes, and that number doubled in 1993. With increased recognition of hate crimes, minority advocates began fighting for penalty enhancement laws for these crimes. Penalty enhancement laws allow judges to increase the sentence of a criminal convicted of a crime committed because of the victim’s race, gender, nationality, religion, or sexual orientation.
Shepard’s murder heightened the controversy over hate crime laws. Wyoming, where Shepard was murdered, has no such laws. Moreover, many states do not include sexual orientation as a protected class in their hate crime laws. Supporters of hate crime legislation contend that these laws are necessary to reinforce society’s message that prejudice and hate are unacceptable and to deter hate crimes. Sociologists Jack Levin and Jack McDevitt assert in their book Hate Crimes: The Rising Tide of Bigotry and Bloodshed,
A strong prison sentence sends a signal to would be hatemongers everywhere that should they illegally express their bigotry, they can expect to receive more than a mere slap on the wrist.
Penalty enhancement laws for hate crimes are necessary, they claim, because crimes committed because of bias or hate are more morally reprehensible than other crimes.
Other supporters of such legislation maintain that perpetrators of hate crimes are trying to send a message of intimidation to whatever group is being targeted. Senators Edward Kennedy and Arlen Specter, sponsors of a federal hatecrime bill that has yet to pass in Congress, explain, “Hate crimes are uniquely destructive and divisive because they injure not only the immediate victim but the community and sometimes the nation.” For example, they maintain that the hate crime committed against Shepard tells gays in Laramie, in Wyoming, and across the United States that gays are still the objects of prejudice and hate, and that they can never feel safe because any one of them might be the next victim.
Hate crime legislation supporters also contend that hate crimes cause the victims more physical and psychological harm than other types of crimes and so the punishment should be greater. According to law professors Bennett Weisburd and Brian Levin, “Because the violence is so brutal, the degradation so complete and the vulnerability so omnipresent, bias crime victims exhibit greater psychological trauma than nonbias victims.”
Others argue, however, that penalty enhancement laws for hate crimes are unnecessary and will do little to prevent hate crimes. They point out that all the offenses covered under hate crime laws are already prosecutable crimes and that additional penalties would not be effective. According to the editors of the New Republic, even if Wyoming had had a hate crime law in effect at the time of Shepard’s murder, it would not have saved his life:
[Hate crime laws] would probably have little effect on the occurrence of hate crimes against gays. It’s hard to see how Matthew Shepard’s killers would have been deterred by the prospect of federally assisted prosecution and a tough federal penalty. Under Wyoming law, and that of most states, murder is already punishable by the ultimate penalty: death.
Henderson and McKinney managed to narrowly avoid the death penalty by agreeing to a last-minute plea bargain during their trial; they were each sentenced to two consecutive life sentences with no possibility of parole.
Some opponents to hate crime laws object to increasing an offender’s sentence due to the alleged motive of the crime. They cite two constitutional amendments for their opposition: equal protection and free speech. Protecting certain groups because of their identity will eventually threaten Americans’ right to free speech, they assert. The editors of the New Republic argue:
The basic problem with which all proposed hate-crime laws must contend is that they create a legal distinction between someone who kills a gay man because he hates gays and someone who kills a gas-station attendant in order to steal from his cash register. To create such a distinction in effect penalizes some criminals more harshly, not because of their deeds, but because of their beliefs. This clashes with constitutional principles protecting free thought and equality under the law.
Instead of adding mandatory penalty enhancements to laws, opponents maintain that judges should be given more latitude when sentencing criminals. They contend that judges must be given the discretion to factor in the criminal’s motives for and the circumstances surrounding the crime when determining the sentence.
The need for and legitimacy of stiffer sentences for crimes that are based on prejudice and the victim’s identity are at the heart of Americans’ concerns about hate crimes. Hate Crimes: Current Controversies explores this topic as well as the extent and seriousness of hate crimes, whether hate speech should be protected under the First Amendment, and whether certain groups incite hate and violence.
Legal philosopher Jeffrie Murphy explains, “All assaults, whether racial or not, involve motives of humiliation and are thus evil to the same degree.” Others argue that hate crimes are not more brutal than other crimes in the same category; if they were, then they would be categorized as a more brutal crime—for example, aggravated assault rather than simple assault. Jacobs and Potter also maintain that using victims’ psychological trauma as a justification for passing hate crime legislation is misguided. “It should come as no surprise that hate crime victims report psychological and emotional effects. All victims do,” they assert.