Hate Crime Laws: Dangerous and Divisive

Hate Crime Laws: Dangerous and Divisive by David Kopel Research Director IP-3-2003 January 2003 13952 Denver West Parkway • Suite 400 • Golden, Colorado 80401-3141 www.IndependenceInstitute.org • 303-279-6536 • 303-279-4176 fax [Advisory: This Issue Paper reports on various crimes or incidents, some of which involve the use of vile and offensive language. Persons who do not want to read such language in print should not read this paper.] Introduction Almost every year since 1991, bills have been offered in the Colorado Legislature to broaden Colorado’s “Ethnic Intimidation” statute. The bills would turn the statute into a “hate crime” statute, bring homosexuals, trans- sexuals, transvestites, the elderly, and the disabled within its scope. Laws in some other jurisdictions protect not only these classes, but also blindness (Connecticut), sensory handicap (Washington state), marital sta- tus (N.Y., D.C.), personal appearance (D.C.), family responsibility (D.C.), matriculation (D.C.), political affiliation (Iowa, W.V., D.C.), involvement in human or civil rights activities (Montana), association with protected per- sons (Iowa), and service in the U.S. Armed Forces (Vermont). Should pro- posals to broaden the Colorado law be adopted, it seems difficult to argue that the additional special statuses protected in other jurisdictions should not likewise be included. Often, public debate on the Colorado bills revolves around whether homosexuals should “count” as a special group covered by the law. If the Colorado perennial becomes law, other groups will make claims for similar special status. The divisive and unnecessary debate illustrates why Colorado’s “Ethnic Intimidation” statute should be repealed. Rather than obsessing about which groups are or are not deserving of special favor from Colorado’s criminal law, the Legislature should guarantee equal protection of the law to all citizens. Page 1  I. Hate Crimes Statistics To the contrary, today’s America is far more racially tolerant, and far more accepting of homosexuality, Advocates of “hate crime” laws often assert that than was any previous generation of Americans. there has been a huge increase in hate crimes. This is incorrect. After the 1990 enactment of a federal A careful look at hate crimes data shows that such statute requiring local enforcement crimes are a tiny fraction of major violent crimes to provide hate crime statistics to -- and that many “hate crimes” are non-violent per- Anyone with even the FBI for publication in an annual sonal conflicts. The federal Hate Crimes Reporting a slight aware- report, more and more local agencies Act of 1990 requires that “intimidation” be included ness of American have been collecting hate crime data. as a reported crime. This category, which consists history ought to Accordingly, the number of crimes of threats which are never carried out, accounts for be able to under- recorded has increased. The increase 56%3 of the FBI’s annually reported stand the absur- is plainly an artifact of increased data- hate crimes against persons. In comparison to dity of the claim gathering. total crime rates, that modern In comparison to total crime rates, the number of America suffers Anyone with even a slight awareness the number of hate crimes is very, hate crimes is hate crimes at a of American history ought to be able very low. In Colorado, for example, very, very low. higher rate than to understand the absurdity of the the Colorado Bureau of Investigation in the past. claim that modern America suffers reported that there were 143 homi- hate crimes at a higher rate than in cides in Colorado; one of these was a hate crime. the past. For example, in the 1890s, Coloradoans were victimized by 26,312 burglaries there were over two thousand lynchings, most of in 2001. Only one of these was a hate crime. There them in the South, and most of them involving black were 1,588 arsons in Colorado in 2001; five were males. Modern America tolerates homosexuality hate crimes. Thus, in all of 2001, there were seven to a degree unknown in Western civilization since crimes in CBI’s “major offenses” category which the days of the Roman Empire. Today, gay pride were hate crimes -- out of a total of tens of thou- parades include marchers dressed in flamboyant sands of major offenses. attire strutting down the streets of American cities; a century ago, any such parade would likely have been Nationally, according to the FBI, there were 9,730 attacked by an angry mob, a mob tacitly condoned hate crime incidents, comprising 11,451 separate or actively supported by local law enforcement. The offenses in 2001. (This includes all “hate crimes,” assertions by some interest groups that hate crimes not just major offenses.). There were 11.8 million are worse than ever is profoundly disrespectful to Crime Index offenses (murder, rape, robbery, aggra- our American ancestors who suffered abuses at a vated assault, burglary, larceny-theft, and motor rate immensely worse than today. vehicle theft) in 2001 in the United States, plus mil- lions more misdemeanors and simple assaults. The Nevertheless, some advocacy groups continue to FBI data show that fewer than one in ten thousand exaggerate the extent of hate crimes. For example, personal or property crimes in America is a hate the Southern Poverty Law Center (a direct mail crime. fundraising group which does not actually engage in poverty law) claimed that in 1996, twenty-one The FBI reported 13,752 total homicides in 2001, people were murdered because they were homo- ten of which were hate crimes, one of which sexual. The FBI, though, said that the actual number involved a homosexual. Overall, the FBI found that was two.1 Similarly, Kerry Lobel, executive director 14% of hate crimes involved homosexuals. of the National Gay and Lesbian Task Force, alleges that there is “a national emergency’’ of hate crimes.2 The claim of some interest groups that America Page 2  is suffering an epidemic hate crime crisis which requires immediate new legislation appears to be What about in other, more minor cases? A careful indefensible, according to government data. look at the Ethnic Intimidation stat- ute shows it is is almost entirely dupli- A careful look II. The Practical Impact of Hate cative of other parts of the criminal at the Ethnic Crime Laws code. The statutory crime of Ethnic Intimidation Intimidation (Colorado Revised statute shows it is Hate Crime laws are not needed to punish people Statutes, 18-9-121) encompasses: is almost entirely who commit heinous crimes. For example, Wyoming • Causing bodily injury (which is duplicative of has no “hate crimes” law, but the killers of Matthew already prohibited by statutes other parts of the Shepherd were sentenced to life in prison without involving Harassment, Assault criminal code. parole, and would have been sentenced to death, and other violent crimes). but for the request of Shepherd’s parents. Likewise, • Placing a person in fear of when James Byrd was dragged to his death by three imminent lawless action against men in Texas, the Texas criminal justice system his person or property (covered by Menacing reacted with its characteristic severity; two of the or Harassment). killers are on death row, and the third was sentenced • Damaging someone’s property (already to life imprisonment. A hate crimes law in Texas covered by Criminal Mischief, arson, and other could not have increased their punishment by one property offenses). iota, nor could it have deterred their acts any more The perpetrator must have an intent to harass or than the existence of the death penalty did. intimidate because of the victim’s “race color, reli- gion, ancestry, or national origin.” The crime is a A. Colorado’s Statutes class 1 misdemeanor, except that causing fear of imminent lawless action is a class 5 felony. In Colorado, the Ethnic Intimidation statute appears to make very little difference in either major or les- Prosecutors have many other tools to use against sor violent crimes. For example, in people who make threats, deface property, or hit the case of People v. Juvenile Court, people. These include: In Colorado, City and County of Denver (813 • Menacing (a threat or physical action that the Ethnic P.2d 326, Colo.,1991), the Colorado attempts to place another person in fear of Intimidation Supreme Court reviewed the convic- imminent serious bodily injury). C.R.S. 18- statute appears tions of several teenagers who had 3-206. Class 3 misdemeanor, class 5 felony if to make very attacked some Japanese exchange with a deadly weapon. little difference students with baseball bats and clubs, • Criminal Mischief (damaging property). C.R.S in either major robbed them, and beat them on the 18-4-501. A class 3 or 4 felony, or a class 2 or or lessor violent head repeatedly. The perpetrators 3 misdemeanor, depending on the value of the crimes. were charged with attempted first property. A convicted juvenile must have his degree murder, aggravated robbery, driver’s license revoked. second degree assault, various other crimes – and • Trespass. C.R.S. 18-4-502/503/504. A class 4 with ethnic intimidation. The perpetrators were or 5 felony, or a class 2 or 3 misdemeanor, motivated in part by hatred of Japanese people, but depending on the circumstances. in this case, the extra offense of ethnic intimidation • Criminal Tampering. C.R.S. 18-4-506. could hardly compare with the major violent felony Tampering with the property of another. Class charges that the defendants had to face. In 2002, the 2 misdemeanor. Colorado Supreme Court affirmed the sentences the • Defacing Property. C.R.S. 18-4-509. Damaging defendants received: 60 years in prison.5 or defacing a historical monument. Class 2 Page 3  misdemeanor. Perpetrator must personally meanor. Harass someone because you hate blacks, repair the property. Requires drivers license and it’s a class 1 misdemeanor. revocation for juveniles. • Desecration of Venerated Objects. C.R.S. In short, the Ethnic Intimidation 18-9-113. Class 3 misdemeanor. If a place statute (and its analogue in the or worship or burial is desecrated, a class 1 Harassment statute) do not criminal- In short, misdemeanor. Restitution is mandatory. ize conduct which would otherwise be the Ethnic • Disorderly Conduct. C.R.S. 18-9-106. Includes legal. Rather, the statutes specify that Intimidation making an “obviously offensive utterance” the law will grant preferential status statute (and its in a public place which “tends to incite an to some victims, while holding that analogue in the immediate breach of the peace”; making equally-serious crimes against other Harassment stat- unreasonable noise in a public place or near a victims will be punished at a lower ute) do not crimi- private residence; displaying a deadly weapon level. nalize conduct in a public place in a manner calculated to which would oth- cause alarm. A class 1 petty offense, or a B. Notable Cases erwise be legal. class 2 misdemeanor for the weapon crime. Obviously many actions which qualify as The Appendix to this Issue Paper Disorderly Conduct could also qualify as contains a chart summarizing every case of alleged higher-level crimes as well. “Ethnic Intimidation” which was reported in the • Disrupting a Lawful Assembly. C.R.S. 18-9- Rocky Mountain News since the enactment of the 108. A class 3 misdemeanor. Colorado Statute. Of course the cases reported • Interfering with Staff, Faculty, or Students of in the paper do not represent every single case Educational Institutions. C.R.S. 18-9-109. A in which a District Attorney used the Ethnic class 3 misdemeanor. Intimidation statute. Even so, it is striking to see • Harassment. C.R.S. 18-9-111. With intent how little importance the statute has in most cases. to harass or annoy a person, touching him, Almost always, the alleged perpetrator is charged or directing obscene language at him in a with crimes which carry at least as much penalty as public place; following him about in a public Ethnic Intimidation, and usually the top charges place; or communicating by any means “in carry far heavier penalties. a manner intended to harass” or to threaten bodily injury or property damage; repeatedly The main cases in which Ethnic Intimidation is the communicating at inconvenient hours. A class only crime charged come out of a few incidents in 3 misdemeanor. If perpetrated with intent to high schools or colleges. The newspaper reports harass or intimidate because of “race color, do not contain enough information about these religion, ancestry, or national origin,” a class cases to determine whether the accused could 1 misdemeanor. The class 1 misdemeanor have been charged with some crime in addition to covers most of the same ground as the Ethnic Intimidation -- although the language of the Ethnic Intimidation statute. If accompanied Colorado Intimidation statute means that almost by credible threats plus stalking or repeated any crime which could be proven to be Ethnic communications, the crime is a class 6 felony. Intimidation could be also be proven to be harass- ment. The special penalty for ethnic harassment in the Harassment statute encapsulates the legal effect Significantly, a large fraction of the cases in which of the Ethnic Intimidation statute: harass someone Ethnic Intimidation is charged do not involve pre- because you hate women in general, or because you meditated racist harassment. Rather, these cases hate a particular woman, and it’s a class 3 misde- involve spontaneous fights (e.g., a hunter gets mad Page 4  at a wildlife officer and hits him) in which someone utters a racial epithet. If a teenage girl gets into a This misbehavior should have been prosecuted, fistfight with a stranger, and calls her a “fucking since the man was clearly guilty of disturbing the bitch”, the teenager may be charged with a class 3 peace and of making a threat. Instead, he was con- misdemeanor; but if the teenager calls the stranger victed of a “hate crime” felony and sentenced to a a “spic”, then the teenager can be -- and often is -- year and a half in prison. During his tirade, the man charged with a class 1 misdemeanor. said the words “niggers” and “black motherfuckers.” If he had not said It is certainly a While the Disorderly Conduct and those words, his offense would have skewed system of Harassment statutes impose penalties been a misdemeanor, subject to a criminal justice ... the Ethnic for use of abusive language in public sentence of no jail time, or up to six in which the Intimidation (especially during a fight), the Ethnic months.8 It is certainly a skewed sys- word “nigger” statute imposes Intimidation statute imposes special, tem of criminal justice in which the leads to a much special, extra extra penalties, for racial epithets. word “nigger” leads to a much harsh- harsher sentence penalties, for er sentence than does a death threat. than does a death racial epithets. As detailed below, there was at least threat. one major case in which the Ethnic Advocates of hate crimes laws Intimidation statute was egregiously contend that the laws punish conduct, abused, and invoked for what amounted to nothing rather than speech or beliefs, but at least in some more than a nasty dispute between some neighbors cases, this contention is incorrect. In the Ohio in Evergreen. Other states have also experienced campground case, for example, the defendant had abuse of similar statutes, in which ordinary inter- lived next door to an elderly black woman for nine personal conflicts are turned into serious felonies years, without any problems. The cross-examination because someone hurls an angry epithet. of the defendant inquired “Never gone out and had a beer with her?” “Never went to a movie?” For example, In San Jose in 1993, two neighbors got “Never invited her to a picnic at your house?” into an argument over grass clippings. Neighbor One After the defendant described his black friends, the used a lawn mower without a grass catcher, to blow prosecutor demanded to know if any were “really a grass onto neighbor Two’s lawn. Later, there was a good friend.”9 fight, and the son of neighbor One punched neigh- bor Two. Normally, this would be a misdemeanor The Rocky Mountain News editorialized: assault. But in California, the incident resulted in a felony conviction, because the son called neighbor “Hate-crime prosecution often requires jurors Two a “cocksucker” and a “faggot.”7 As detailed in and judges to delve into the mindset of the the Appendix, the Ethnic Intimidation is sometimes perpetrators and requires prosecutors to dig used in cases such as this in Colorado, in which up old statements that might reflect on the insulting words are used during a fight. defendants’ attitudes toward others. This amounts to the criminalization of opinions - At an Ohio campground, a man and his wife played something we thought most Americans agreed their radio too loudly, and bothered the people at was not acceptable in a free society.”10 the next campground. When the park ranger told the couple to turn the radio down, they did, but 15 In contrast, ordinary laws about harassment, minutes later, they turned it up again. The husband disturbing the peace, and so on merely require fact- then yelled that he ought to shoot the campers at finding about what the defendant did on a particular the next campsite. He did not take violent action in occasion -- not about the history of his social life and any way. every politically incorrect comment he ever made. Page 5  III. Justifications for Hate Crimes thousand. The odds of being a crime victim in Laws general in a given year are about one in ten.12 Surely the widespread fear caused by crime in general A. “Hate crimes are more severe” far outweighs the fear of hate crime. The risks of ordinary crime are quite substantial, while the risks If this were really true, then the crime would be at of being victimized by a hate crime are tiny. a higher offense level – such as aggravated assault instead of simple assault. The theory depends on hate IV. What Harm do such Laws do? crimes actually being a little more severe – worse than the ordinary crime, but not so much worse as to A. Undermining Federalism move into a higher offense category. In any case, the availability of a sentencing range on any given offense Pressure to create a federal “hate crimes” law always allows a judge to mete out extra punishment threatens the already-battered values of federalism for crimes which are modestly more serious. in our criminal justice system. Our Constitution nowhere gives Congress Pressure to cre- In terms of psychological injury, research shows that general authority over criminal law, ate a federal hate crimes are less severe; victims of various crime yet since the 1960s, Congress has “hate crimes” types suffer approximately the same psychological enacted extensive criminal statutes, law threatens injury, except that hate crime victims are much less under the specious pretext that a crime the already-bat- likely to suffer lowered self-esteem.11 committed entirely within a single state tered values of somehow falls within Congressional federalism in our B. “Hate crimes have broader impact” power to regulate interstate commerce. criminal justice system. Some hate crimes do have a broad impact, causing Federalization of crime diverts widespread fear. But so do some ordinary crimes, federal criminal justice resources such as carjackings, child kidnappings, and crimes from areas where the federal role is in public places such as shopping malls, public constitutionally legitimate and indispensable -- such transportation, or college campuses. The “Son of as combating foreign terrorists. Sam” murderer in New York City had a gigantic public impact, although his Federalization also makes law enforcement Some people killing spree would not be classified as unaccountable. Whereas sheriffs are elected by the argue that hate a “hate crime.” people, and police chiefs appointed by Mayors, the crimes must have federal law enforcement apparatus is subject to very special punish- Some people argue that hate crimes few practical checks and balances. ment because must have special punishment they can provoke because they can provoke collective Finally, hate crimes advocates have failed to prove collective self- self-defense by a neighborhood or that there is a pattern of states refusing to prosecute defense by a community. Yet self-defense, either the crimes which would be covered by a federal neighborhood or individually or collectively, is a lawful statute. community. activity in every state of the union. It is laudable, not something to be B. Encouraging hoaxes and wasting law condemned. Besides, other crimes, such as child enforcement resources kidnapping, may also lead to community self-defense. Migdalia Maldonado, a former Assistant District The odds that a person will be victimized by a Attorney for Kings County (Brooklyn), in the Civil hate crime in a given year are about one in twenty Rights Bureau, explains: Page 6  Given the heightened social awareness of Do we have such hoaxes in Colorado? Definitely bias crime the concomitant special attention yes. that allegations of this sort receive from law enforcement officials and the media, the A black couple in Arvada drew swastikas on their complainant is keenly aware that if the crime walls, and ransacked their own house, without perpetrated against him or her is deemed removing any property. Two weeks later, they set a bias crime, he or she will be accorded their car on fire. They were in financial trouble, special protections, and a perpetrator will and perpetrating an old-fashioned fraud, using the be dealt with more harshly by the courts. A false claim of an ethnic intimidation crime to attract complainant, therefore, has an incentive to sympathy.15 tailor his or her presentation of the facts so as to obtain a bias crime designation. This On Sugarloaf Mountain, near Boulder, a man set a motive...leads to a relatively high incidence of fire on his home, and falsely claimed that he was the false reports.13 victim of anti-Semitism.16 In New York City during the David Dinkins In downtown Denver, the owner of the Egg Shell administration, a 12 and a 14 year old black from Restaurant painted swastikas on his restaurant, the Bronx claimed that their lunch money had been added some anti-Semitic graffiti, and set fire to the stolen by a gang of whites who had smeared the basement, pretending to be the victim of a skinhead victims’ faces with white shoe polish. As a response attack.17 to what was, in all likelihood, a childhood lie to cover up spending the lunch money on something Even when the crimes reported are not hoaxes, else, Mayor Dinkins ordered 200 detectives to there is still a misallocation of resources. When you investigate that case; they conducted say that more resources are going to hundreds of witness interviews.14 be spent on investigation of graffiti, The public would Those New York minor assaults, and disturbing the be far better City criminals In a city as crime-ridden as New peace, you are necessarily saying that off if rapes and who went free York under David Dinkins, when one law enforcement is going to spend armed robberies because the deploys many thousands of police fewer resources on other offenses. were sometimes detectives were man-hours on a fool’s errand, one can Explained a former Commander of “treated like busy with the be almost certain that the absence of the Bias Enforcement Unit of the homicides,” shoe polish hoax the police from genuine anti-crime New York City Police Department, rather than such undoubtedly per- work means that many additional “Many of these are minor crimes, treatment being petrated many violent felonies perpetrated against but we treat them as if they were accorded to low- more violent felo- genuine victims – many of them homicides.”18 end misdemean- nies against inno- black – were not solved because the ors. cent New Yorkers trail went cold while the detectives The public would be far better of all races. searched for the non-existent white off if rapes and armed robberies gang and its shoe polish. Those New were sometimes “treated like homicides,” rather York City criminals who went free than such treatment being accorded to low-end because the detectives were busy with the shoe misdemeanors. polish hoax undoubtedly perpetrated many more violent felonies against innocent New Yorkers of all C. Dividing people against each other races. In the Middle Ages, the law required a greater punishment for killing a rich man or noble than Page 7  it did for killing a peasant or a laborer. While How sad to see the Legislature engaged in annual American law has traditionally abhorred such debates over which particular groups ought to distinctions, hate crimes statutes have begun to “matter” more than other groups. Our nation’s select favored members of identity groups, implicitly motto E pluribus unum announces that no matter announcing that some people are more important where a person comes from, he is, first and than others. After the murder of Matthew Shepherd, foremost, an American. Regardless the Laramie City Council considered a hate crimes of whether one’s ancestors were born law. One of the speakers against the law was the in London, Vilna, Mexico City, or The best way for mother of an eight year old child who had recently Oklahoma City, all Americans are our legal system been murdered. She wondered why the murder equal in the eyes of the law. to send a message of her child would be considered against prejudice less important than the murder of The best way for our legal system is for the law to She wondered someone else’s child.19 to send a message against prejudice apply to everyone why the mur- is for the law to apply to everyone equally... der of her child would be consid- When a Colorado legislative equally, without regard to identity ered less impor- committee rejected a proposed “hate politics: to treat people the same, tant than the crimes” bill, Sue Anderson, executive regardless of race, to treat crime victims equally murder of some- director of Equality Colorado, said without special categories of race, religion, sexual one else’s child. “we have an ethnic intimidation act orientation, or similar categories, and to treat where we penalize people additionally criminals equally without special punishments for if they have committed a crime based bad beliefs. on race, religion, national origin, ancestry or color. But for other categories, that’s not bad enough to D. Infringing freedom of thought penalize them additionally. It sends a very loud and clear message that says ‘these other populations Envy, hatred, love, and greed are ordinary human don’t matter enough.’’’20 emotions. They may be connected to a political belief system – such as a Marxist who believes that Of course Ms. Anderson’s bill likewise sent a loud he should hate businessmen, or a Syrian who is and clear message that other groups (which are envious of the success of Israel. Or such emotions protected in other jurisdictions) “don’t matter may have no connection to a political world-view. enough” to be included in her bill. Ms. Anderson’s Bigotry against people because of race, sex, religion, favored law would create a state policy that or sexual orientation is usually closely connected to transvestites “matter enough” but veterans, political a political world-view. To punish someone because or human rights activists, and married or divorced of his of bad political thoughts, or because of his people “don’t matter enough.” bad political words expressed during a crime, is to punish him extra because of the beliefs he holds. Once the government gets into the business of claiming that some identity groups deserve special Over the last two decades, many practitioners favor, it is difficult to see why every identity group identity politics have become ardent advocates for a should not be given the same favor. Certainly the wide range of political censorship: speech codes on number of women who are criminally attacked campuses and in workplaces; forced indoctrination because of their marital status (having divorced programs for people joining such institutions, and an abusive spouse who continues to stalk them) forced re-education programs for people who far exceeds the number of homosexuals who deviate from the official norms. In Canada, Sweden, are criminally attacked because of their sexual and other countries, “hate speech” is used to censor orientation. conservative Christians who teach that the Bible Page 8  says that homosexual conduct is wrong, or to censor The stirring words of Justices Holmes and Brandeis people who criticize the European Union, or who were expressed in a dissenting opinion, and today’s disparage Islamic intolerance. U.S. Supreme Court is not always speech-protective. But simply because the Supreme Court decides Louis Brandeis was the first Jew to serve on the not to overturn a “hate crimes” law enacted by one United States Supreme Court. All his life, he state does not mean that other states should push encountered anti-Semitism. On the Court, Justice their own laws up to the limits of what the Supreme McReynolds refused to speak to Brandeis because Court will allow. Legislators take their own oath to Brandeis was Jewish. Brandeis saw the rise of the obey the Constitution, and they have the discretion Nazi movement in Germany, and saw that many and the responsibility to reject proposed laws which Americans sympathized with the German’s hostility the legislators believe will infringe constitutional towards the Jews. Yet Brandeis recognized that values -- regardless of whether courts are likely to freedom of speech could not be granted only to void such laws. persons whose ideas were inoffensive. In United States v. Schwimmer, he joined with Justice Oliver Similarly, although the Fourteenth Amendment Wendell Holmes to declare: “If there is any principle guarantees Equal Protection of the laws, courts in in the Constitution that more imperatively calls for the Jim Crow era often upheld laws discriminating attachment than any other, it is the principle of free against black people; today, courts often uphold thought--not free thought for those who agree with misnamed “affirmative action” laws which us but freedom for the thought we hate.” discriminate against whites and Asians. In the Jim Crow era and today, constitutionally conscientious Gay journalist Jonathan Rauch writes: legislators can still choose to vote against all discriminatory laws; Although the Personally, being both Jewish and gay, I do such legislators would be acting in media tend to be not expect everybody to like me. I expect accordance with their own oath to very supportive of some people to hate me. I fully intend to hate support the Fourteenth Amendment, identity politics those people back. I will criticize and excoriate even during times when courts are and hate crimes them. But I will not hurt them, and I insist unwilling to do so. laws, the public that they not hurt me. I want unequivocal, no-buts protection from violence and at large seems Although the media tend to be very to have a firmer "I do not want vandalism. But that’s enough. I do not supportive of identity politics and grounding in policemen and want policemen and judges inspecting hate crimes laws, the public at large the principle of judges inspecting opinions. seems to have a firmer grounding in equality before opinions." the principle of equality before the the law. I think it’s ironic and a little sad that law. A Wirthlin poll found that 92% gays, of all people, would endorse of the public agreed that criminals a criminal sentence that has overtones of should be punished solely for their acts, and not for forced re-education. Homosexuals know a their beliefs.22 thing or two about being sent for therapy or reeducation to have their attitudes straightened out. Jews, too, know something V. Quigley v. Aronson: A Case Study about courts that decide whose belief is in the Harm Caused by Colorado’s “hateful.” As on campus, so in the courtroom: Ethnic Intimidation Statute the best protection for minorities is not prejudice police but public criticism — genuine In Evergreen in the 1990s, lived a pair of intellectual pluralism, in which bigots, too, neighboring families who did not get along: have their say.21 the Quigleys and the Aronsons. The use of Page 9  Colorado’s Ethnic Intimidation statute in this Aronson child with flammable liquid. neighborhood dispute attracted national attention, ruined a family’s life, brought false Six years later, Dee Quigley testified that Rather than accusations of crime, and harmed her telephone remarks about scaring away preventing eth- the reputation of law enforcement the Aronsons were sick black humor and she nic tension, in Jefferson County. Rather than deeply regretted them.23 the Ethnic preventing ethnic tension, the Intimidation stat- Ethnic Intimidation statute made The Aronsons went to the Anti-Defamation League, ute made neigh- neighbor-to-neighbor arguments into which called in a pair of volunteer lawyers, one of bor-to-neighbor problems worse by at least an order whom was Gary Lozow, a leading proponent of the arguments into of magnitude. 1988 Ethnic Intimidation Act. The lawyers advised problems worse the Aronsons that they could legally record cordless by at least an In 1993, the Quigley family moved phone conversations with the Quigleys, and so the order of magni- into Hiwan. The Aronson family Aronsons recorded 260 conversations, amassing tude. moved into a home two houses away hours and hours of tapes. The Aronsons’ lawyers in 1994. One day, the dogs belonging contacted the Jefferson County District Attorney’s to each family got into a fight. The office, and the Quigleys were charged with Ethnic Rocky Mountain News summarized what happened Intimidation in December 1994. next: The Aronsons sued the Quigleys, and the Quigleys Soon both families were phoning animal countersued. Neither family collected a penny from control officers about each others’ dogs. the other. In December 1995, Jefferson County There was an allegation that one family had District Attorney Dave Thomas apologized to the stolen decorative rocks from the other family’s Aronsons, who received $75,000 from Jeffco’s yard. There was hostility about a near miss insurers. with a vehicle, which one family charged was deliberate. There was an accusation that The District Attorney’s office had not listened one of the women had spread rumors that to the tapes before filing charges. Weeks after the other was having an affair with a local charges were filed, the tapes were studied, and teenager. “We decided Mrs. Quigley was simply blowing off steam, venting,’’ prosecutor Steve Jensen later It was only by chance, the Aronsons said acknowledged. later, that they discovered their police scanner picked up conversations on the Quigleys’ But by then, much harm had already been done. cordless telephone. The ADL had held a press conference supporting the Aronson civil lawsuit against the Quigleys, but What they heard sent them to the Denver the simultaneous announcement of 13 charges being office of the Anti-Defamation League, a group filed by the Jefferson County District Attorney gave founded in 1913 to fight the defamation of the matter vastly greater public and media attention. Jewish people and protect their rights. According to the News: The Aronsons, who are Jewish, said they heard The Quigleys got hate mail. They got the Quigleys discuss a campaign to drive them telephone death threats. They got suspicious from away with Nazi scare tactics: tossing lamp packages, including a shoebox full of dog feces. shades and soap on their lawn; putting pictures of Holocaust ovens on the house; dousing an Page 10  They hired security guards, who told them cases involving identity politics should be taken not to stand in front of their windows. When seriously -- that is, the cases should be subjected to they shopped, they took the guards with them careful scrutiny before a defendant’s reputation is or went to towns where they wouldn’t be destroyed through charges based on a hoax or flimsy recognized. evidence. The Quigleys, who are Catholics, were shocked VI. Anti-Hoax Laws when their own priest denounced them from the pulpit. It is often argued that hate crimes are worse than ordinary crimes because they have a broader William Quigley lost his job. impact. Sometimes this is true, and judges can and should take the impact of a crime into account at The Aronsons’ lawyers eventually paid a $350,000 sentencing. Colorado law properly gives judges a settlement. (The lawyers had not realized that five sentencing range in most cases, so that the sentence days after the wiretapping began, a new federal can be adjusted to fit the crime. Hate crimes statute was enacted which restricted wiretaps of advocates, however, go further, and insist that a cordless phones.) A jury awarded a 10 million dollar special new crime category be created. judgment against the ADL. (The case is currently on appeal to the federal Tenth Circuit.) If the argument for a special category of hate crimes laws is compelling, then so is the It is true that the Jefferson County District argument for a new law imposing If the argument Attorney’s Office could have avoided the whole especially strict punishment for hate for a special fiasco by prudently insisting that it review the crimes hoaxes. category of hate alleged evidence in the case before filing charges - crimes laws is - rather than relying on the story painted by lawyers False reporting of a crime (C.R.S. 18- compelling, then for one side in a neighborhood dispute. It is also 8-111) is a class 3 misdemeanor. Just so is the argu- true that ethnic intimidation/hate crime laws are as the Ethnic Intimidation Statute ment for a new precisely the kinds of laws which are likely to cloud turns many class 3 misdemeanors law imposing the judgment of public officials. Such laws can even into class 1 misdemeanors or class 5 especially strict cloud the judgment of outstanding public interest felonies, the false reporting statute punishment organizations such as the Anti- should be amended so that false for hate crimes Defamation League. How ironic reporting of Ethnic Intimidation is Because emotions hoaxes. that the Anti-Defamation League a class 1 misdemeanor or a class 5 run so high on was found to have defamed a family felony (depending on the whether the issues of identity and ruined their lives. Because falsely reported crime was itself a misdemeanor or a politics, public emotions run so high on issues of felony). officials and pub- identity politics, public officials and lic interest some- public interest sometimes make To the extent that arguments in favor of special hate times make snap snap judgments which have terrible crimes laws are persuasive, the argument for special judgments which consequences. anti-hate-crime-hoax laws are at least as persuasive. have terrible con- For example, some hate crime perpetrators do sequences. Repeal of the Ethnic Intimidation intend to create a climate of fear in the community. statute (and of its analogue within (Other perpetrators just have a personal dispute the Harassment statute) could help with someone, and are not trying to send a broad prevent a recurrence of cases like Quigley/Aronson, message.) Every hate crime hoax perpetrator, and would send a strong signal to prosecutors that though, intends to create a climate of fear, since Page 11  hoaxes are perpetrated with the aim of achieving who created the hoax. Quite plainly, there are at publicity. least some prosecutors and school administrators who need to be given a very strong signal that hate Hate crime laws are promoted under the theory crime hoaxes ought to be taken seriously. that, even though they simply recriminalize already-criminal conduct, they send a message to Hate crimes laws are also promoted as a means of law enforcement, school administrators, and the teaching the public that tolerance regarding race public that such crimes are especially heinous, and sexual orientation is an especially important and should be taken very seriously. Precisely the value. Precisely for this reason, hate crime hoaxes same can be said about hate crime hoaxes -- which ought to be punished with special severity, because are sometimes treated quite offhandedly by the they are deliberately intended to create an authorities. At the University of Mississippi in the atmosphere of intolerance. Fall of 2002, the entire campus went through an uproar lasting for weeks when it was discovered that Like hate crimes, hate crime hoaxes do not occur some black students had been victimized by racist every day in Colorado. But over the years, a graffiti with language such as “Fucking Nigger.” substantial number of hoaxes have been perpetrated. Then, it was discovered that the perpetrators were In the 1996 book Crying Wolf: Hate Crimes Hoaxes in black, and were creating a hate crime hoax. They America, Laird Wilcox (a scholar of right-wing and had attempted to severely damage left-wing extremist movements) presents numerous Yet after the hoax the reputation of the university, cases. was uncovered, which is trying mightily to overcome law enforcement its racist past, and they had wasted As long as Colorado’s Ethnic Intimidation law refused to take many thousands of hours of faculty remains on the statute books in any form, it ought action, leaving and student time (and thus wasted to be strengthened adding a provision making ethnic the perpetrators many, many thousands of taxpayer intimidation hoaxes subject to substantially more to face nothing dollars) as the campus held meeting severe penalties than ordinary criminal hoaxes. more serious after meeting on the supposed “hate Supporters of the Ethnic Intimidation statute should than university crimes.” have no objection to this reform, since it reinforces discipline. the goal of the statute: creating a Colorado in which Yet after the hoax was uncovered, law people do not need to fear being the victim of a enforcement refused to take action, crime because of their race or ethnicity. leaving the perpetrators to face nothing more serious than university discipline. Conclusion The most infamous hate crimes hoax in America was The great promise of American law is the Tawana Brawley case, in which a teenage black Equal Protection: everyone is equal Different groups girl in New York came home late -- but before doing before the law. Colorado’s Ethnic should not be so, smeared herself with feces and made up a lie that Intimidation statute runs contrary to contending for she had been raped by a policeman. The case was this promise, by creating preferred special status in so palpably false that a New York prosecutor Steven classes of victims. Proposed “hate our criminal law. Pagones eventually won a libel suit against the crimes” laws would make the problem “Reverend” Al Sharpton for the lies which Sharpton even worse. Different groups should had told about the Pagones supposedly being not be contending for special status in our criminal complicit in the non-existent crime. Yet no criminal law. Identity politics strikes at the heart of the charges were ever brought against Sharpton, his co- American motto of e pluribus unum, and encourages conspirator Alton Maddox, or against the teenage people to think of themselves as members of Page 12 particular groups -- rather than as, most of all, 18 Jacobs & Potter, p. 101; James C. McKinley, “Tracking Crimes of Prejudice: A Hunt for the Elusive Truth,” New York Times, Americans first. Laws based on identity politics June 29, 1990, p. A1. lead to skewed prioritization of law enforcement 19 Rob Blanchard, “The ‘Hate State’ Myth,” Reason, May 1999; resources, and impinge on values of free speech, slightly corrected version on Independent Gay Forum website, which includes the freedom to hold and express http://www.indegayforum.org/articles/blanchard1.html the most odious ideas. Until Colorado’s statute 20 John Sanko, “Committee Stalls ‘Hate Crimes’ Bill. Similar is repealed, it should be improved by stronger Measure to Expand State’s Existing Law to be Heard Today,” penalties for the creation of hoaxes. Rocky Mountain News, January 14, 1999, p. 24A 21 Jonathan Rauch, “Thought Crimes,” The New Republic, Oct. Endnotes 7, 1991, reprinted for Independent Gay Forum, 1 National Center for Policy Analysis, Do We Need More Hate http://www.indegayforum.org/articles/rauch50.html Crime Laws? http://www.ncpa.org/pi/crime/pd112398d.html 22 Wirthlin Worldwide poll of 1,013 respondents, July 23–26, 2 John Sanko, “Activists Urge Hate-Crimes Law. Tougher 1999. The poll was commissioned by the Family Research Penalties Sought for Acts against Gays, Lesbians,” Rocky Council. Mountain News, March 26, 1999, p. 10A. 23 Karen Abbott, Fur Hasn’t Quit Flying from 1994 Dogfight, 3 Federal Bureau of Investigation, Hate Crime Fact Sheet, Rocky Mountain News, Nov. 19, 2002. Nov. 25, 2002, http://www.fbi.gov/pressrel/pressrel02/ 01factsheethc.htm; http://www.fbi.gov/ucr/01hate.pdf 5 Close v. People, 48 P.3d 528 (Colo. 2002). 6 Michael O’Keeffee, “Teen to Face Prosecution for Remarks,” Rocky Mountain News, Mar. 18, 1998. 7 Jim Jacobs & Kimberly Potter, Hate Crimes: Criminal Law & Identity Politics (N.Y.: Oxford, 2000), pp. 26-27. (Hereinafter “Jacobs & Potter.”). 8 Jacobs & Potter, p. 34. 9 Jacobs & Potter, pp. 106-07. 10 “Wrong Way on Hate Crimes. The Issue: Should Status of Victim Help Determine Punishment of the Offender? Our View: No. Senate Should Kill Bill,” Rocky Mountain News, April 16, 2000, p. 2B 11 Jacobs & Potter, p. 84, citing Arnold Barnes & Paul H. Ephros, “The Impact of Hate Violence on Victims: Emotional and Behavioral Responses to Attacks,” 39 Social Work 247 (May 1994). 12 National Crime Victimization Survey for 2001. The NCVS reported 24.2 million crimes against persons 12 and older. Total U.S. population in 2001 was about 280 million. 13 Jacobs & Potter, p. 142, quoting Migdalia Maldonado, “Practical Problems with Enforcing Hate Crimes Legislation in New York,” 1992/1993 Annual Survey of American Law (1992/1993), p. 557. Emphasis added. 14 Jacobs & Potter, p. 51. 15 Laird Wilcox, Crying Wolf: Hate Crimes Hoaxes in America (Olathe, Kan.: Editorial Research Service, 1996), pp. 54-55, citing Rocky Mountain News stories. 16 Wilcox, p. 68, citing Boulder Daily Camera. 17 Wilcox, p. 69, citing Rocky Mountain News. Page 13 Appendix Ethnic Intimidation Cases in Colorado Date Location Victim Top charge Circumstances Ethnic Sentence/ Intimidation convic- conviction? tions 12/02 Heritage Playground Criminal mis- Elementary equipment chief, Ethnic School, intimidation Cherry Creek (possible) No perpetra- tors caught 6/01 Cortez Transsexual 1st degree Late night drinking Yes, by plea 48 years, Indian teen- murder 2d deg. ager Murder plea 3/01 Denver, 2 2d degree Locker room right, Lincoln High Vietnamese assault baseball bat. 5 male School students assailants Accidental water spill. 11/98 Boulder 3 Asian men Burglary, 4 Hispanic men assault 4/98 Denver Ethiopian Assault 2 drunk men hit cab Not charged, 2 years cabdriver driver after not pay- because of ing fare in advance, lack of intent as driver requests. Use racial slurs. 1/98 South suburbs Japanese DUI, 3d man degree assault Traffic alterca- tion. “Go the fuck back to Japan.” 12/97 Denver Black Harassment Store clerk calls Not charged women woman a “nigger” and threatens to hit her. 12/97 Denver Boy and girl Assault On RTD bus 11/97 Colorado Homeless Assault Sidewalk confronta- Springs black male tion Page 14 Date Location Victim Top charge Circumstances Ethnic Sentence/ Intimidation convic- conviction? tions 11/97 Denver African 1st degree Skinhead gang Pleas: Life immigrant, murder attack at bus stop for killer; white 12 years woman for acces- sory 11/97 Denver Assault at 7-11 9/96 Denver Black cab Assault 3 men use racial epi- Acquitted Sentences driver thets during attack of 2 to 5 year minima for various defendants 1996 Columbine Jewish boy Ethnic intimi- School bullying High School dation 10/31/96 Lamar None Burning a cross for a Plea guilty Sentenced Community few seconds to diversity College training 10/96 Highlands Ethnic Black Vice- Ranch intimidation principal takes student’s baseball cap. 15-year-old student writes note with death warn- ings and racial slurs. Note is discovered under a com- puter key- board 10/95 Douglas Black Ethnic intimi- Student leaves racist County High employee dation note on windshield School 1/94 Denver 2 Viet. Burglary, Home invasion. Women theft, third- Bigot is jealous that degree sexual Vietnamese have assault jobs Convicted on all counts, including EI Page 15 Date Location Victim Top charge Circumstances Ethnic Sentence/ Intimidation convic- conviction? tions 1/95 Denver Anti- Arrest warrants for Semitic 21 white racists. EI graffiti & other criminal charges for 4. More serious charges for other 17, not EI 12/94 Cortez Indians Assault 2 men drink, decide to “pick on some Indians.” Alley attack 9/94 Aurora res- 3 black men Attempted 3 white men, drunk, taurant murder throw rocks, shoot 9/94 Denver, South 2 Russian 6 Viet. Teens. Knife High teens and club assault. School argument 6/94 Colo. Springs Black man 1st deg. 3 Hisp. males. Assault Stabbing 6/94 Colo. Springs Black senior EI Teenage girl spray citizen paints racial epithets on car 8/93 CU Boulder Black male 3d deg. Two students fight. assault; felony The white one alleg- EI edly utters racial epithet before attack. 1/93 Denver, near 2 white 1st deg. Two black youths Acquitted Convicted mob dispers- youths assault are beating up a of 1st and ing from anti- white. White youths 2d degree Klan protest attempt to stop assault on ML King the fight, and are Day severely assaulted 1/93 Boulder Male Felony Male CU student. Bar fight 7/92 Fort Collins Black CSU EI, Illegal use 17-year-old Boulder co-ed of a stun gun girl zaps college stu- dent with a stun gun, in downtown Fort Collins Page 16 Date Location Victim Top charge Circumstances Ethnic Sentence/ Intimidation convic- conviction? tions 2/92 Alamosa Hispanic Assault, EI Argument in wild- County wildlife offi- life office over cer rancher’s claim that an elk damaged his hay. Defendant slugs officer once on the chin, and uses an ethnic slur. Threatens to kill the officer if he comes on the ranch. 9/91 Denver 3 white 2 drunk youths young shout ‘’What’s that people white boy doing in my neighborhood?” and threaten to rape the female. Two drunks approach the victims, and say, “You think you’re tough, you white punk.” Drunks jump on one man, injure his face, and repeat- edly punch the 2 women. 11/90 CU-Boulder Police offi- Misdemeanor Outside a party, Students Plea of cer and ethnic intimi- two football play- deny com- guilty to security dation ers allegedly make ments. Disorderly guard racial comments, Charges Conduct taunting police dropped in officer and security plea bargain. guard. 10/90 Park near 6 Japanese Attempted 3 white teenagers Yes 60 years in Teikyo students murder attack, rob, and prison Loretto viciously club stu- Heights dents. (Discussed University, in main text of this Denver Issue Paper.) Page 17 Date Location Victim Top charge Circumstances Ethnic Sentence/ Intimidation convic- conviction? tions 6/90 Denver 2 Denver 1st degree Judge: “This was a Yes Perp. 1: Zephyrs assault barroom brawl that 10 years baseball got out of hand.” in prison players, one The black victim for first- of them “was called a derog- degree black atory name during assault. the fight” Perp. 2: six years in prison for second- degree assault and ethnic intimida- tion 4/90 Denver Black man Harassment, Drunk Skinhead Plea to EI male points a switch- felony blade at the victim, menacing threatens to kill him, and shouts, “All nig- gers must die” 1/90 Denver Assumption Spray painting Yes, by plea Plea to Greek criminal Orthodox mischief, Church desecra- tion of a venerated object, and ethnic intimida- tion 11/89 CU-Boulder Black stu- ethnic intimi- Student is confront- dent dation and ed in CU library, harassment and called a racist name three times. Perpetrator raises his fist at her, as if to hit her. Page 18  Date Location Victim Top charge Circumstances Ethnic Sentence/ Intimidation convic- conviction? tions 2/89 Northeastern Reckless Three black and 2 whites Junior endanger- three white students plead College, ment, ethnic in off-campus fight guilty to Sterling intimidation, over a woman reckless disorderly endanger- conduct ment and disorderly conduct. Receive 2 year suspended sentence This Appendix was compiled by review the 295 articles in the Rocky Mountain News electronic database in which the phrase “ethnic intimidation” appeared, from 1989 through January 2003. Media tend to report major crimes more than minor ones. The Appendix reports only on criminal cases within Colorado. Newspapers often report an arrest or ini- tial charges in a case, but not the final disposition. Copyright ©2003, Independence Institute INDEPENDENCE INSTITUTE is a nonprofit, nonpartisan Colorado think tank. It is governed by a statewide board of trustees and holds a 501(c)(3) tax exemption from the IRS. Its public policy focuses on economic growth, education reform, local government effectiveness, and constitutional rights. JON CALDARA is President of the Institute. DAVID KOPEL is Research Director of the Institute. PERMISSION TO REPRINT this paper in whole or in part is hereby granted, provided full credit is given to the Independence Institute. Page 19