How Do You Define A Hate Crime?

Guests

James B. Jacobs, director of the Center for Research in Crime and Justice at NYU School of Law, wrote "Weapons Weaken as Target Expands" in New York Times' Room for Debate

Hayley Gorenberg, deputy legal director at Lambda Legal, wrote "Even Nonviolent Crime Needs to Be Fought" in New York Times' Room for Debate

Former Rutgers student Dharun Ravi could face 10 years in prison and deportation to his native India after being convicted of bias intimidation. Ravi used a webcam to spy on his roommate, Tyler Clementi, having an intimate encounter with another man. Clementi killed himself several days later.

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NEAL CONAN, HOST:

This is TALK OF THE NATION. I'm Neal Conan in Washington. A jury convicted Dharun Ravi of bias intimidation on Friday. That's a legal term that most of us would describe as a hate crime. Ravi set up a webcam and spied on his roommate, Tyler Clementi, in an intimate encounter with another man. Clementi found out and jumped from the George Washington Bridge a few days later.

Ravi was neither charged nor convicted of murder or manslaughter. Prosecutors argued that he bullied Clementi because he was gay. He now faces as much as 10 years in prison and possible deportation to his native India. The case and the stiff penalty reignited a national conversation about hate crime laws and mandate harsher sentences because of prejudice.

How do you define a hate crime? 800-989-8255. Email talk@npr.org. You can also join the conversation on our website. That's at npr.org, and click on TALK OF THE NATION.

Later in the program, Mark Bittman on "How To Cook Everything: The Basics." But we begin with NYU law professor James Jacobs, the author of "Hate Crime: Criminal Law and Identity Politics." He joins us on the phone from Whistler in British Columbia. Nice to have you on TALK OF THE NATION today.

JAMES B. JACOBS: It's a pleasure to be on.

CONAN: And also with us is Hayley Gorenberg, deputy legal director at Lambda Legal, with us from our bureau in New York, and thanks very much for coming in.

HAYLEY GORENBERG: Sure.

CONAN: And Jim Jacobs, does this case expand the scope of how prosecutors apply hate crime laws?

JACOBS: Well, it's certainly an aggressive use of the law. I don't think the law was intended to reach this kind of case. But unfortunately, it's been used in many cases where fights or disputes have broken out between people, and epithets were used, names were called, and they end up being prosecuted as bias crimes.

CONAN: And how does the fact that it is a bias crime in this case change the sentence?

JACOBS: It doubles the maximum penalty from a maximum of five years in prison to a maximum of 10 years in prison.

CONAN: And you say it's been misapplied in this case?

JACOBS: I believe so. Well, I believe that hate crime laws ought to be revoked altogether. So I think they're always misapplied.

CONAN: Hayley Gorenberg, do you think it was properly applied in this case?

GORENBERG: With a reading of the law, what it required those jurors to decide, to conclude based on the evidence, they've decided that every single count was sustained, and a reading of the law shows that what they need to find is a certain level of criminal intent having to do with the target's sexual orientation.

They were presented with evidence on that and reached their conclusion. So I'm not second-guessing their conclusion, especially given the degree of evidence that was put before them.

CONAN: An aggressive application of the law, though, would you agree?

GORENBERG: I think that what's happening here really is that this decision is kicking off a national discussion about really recognizing the extent and degree of discrimination based on sexual orientation. And I've likened it to the realization that we had that, for instance, rape was not always a matter of a stranger attacking somebody walking down a dark alley, that there was acquaintance rape, that there is rape within the marital context sometimes, unfortunately.

And so we had to come to an understanding that there are crimes that might happen in different ways than we had classically thought them to happen. And especially when we're talking about crimes motivated by or connected to discrimination based on sexual orientation, I think we have a huge national blind spot on the extent of the discrimination and the targeting of people based on that trait and that this is an important part of examining that, coming to grips with it and getting to a better place.

CONAN: You used the example of rape. I don't think there are special laws that double the penalties.

GORENBERG: That's true, but we had an understanding that there were things that qualified to fit that crime. And what I'm saying - and that was a new understanding and an important understanding and sort of a breakthrough in consciousness. It was very important to protecting people who were targeted in those crimes.

What I'm saying about hate crimes and our blind spot is that we have hate crimes laws on the federal and the state level in most states at this point, and they are - they're used, they're applied in many different instances. We know from federal hate crime statistics that the FBI compiles that the top personal traits by which people are targeted are their race, religion and sexual orientation. Yet it took a very long time to get equal attention paid to sexual orientation, the degree of targeting and victimization people experience based on their orientation or their gender identity.

So I question whether one notable instance of a hate crime prosecution linked to sexual orientation is a valid challenge to whether we should have hate crimes or whether it's actually manifestation that we're just not used to yet because we are too blinded to the degree of victimization of people based on their orientation.

CONAN: Jim Jacobs, I wondered if you could reply to that. She talked about intent, and intent is used in many parts of law, not just in bias crimes.

JACOBS: Well, first I'd like to say I'm glad you bring up the example of rape because we could ask whether all rape isn't a bias crime. Doesn't all rape show some kind of bias against women or at least heterosexual rape, and therefore the penalty should be double even though they are already extremely high?

I don't think, again, that it's appropriate to say that the penalty should be double if you commit a crime against a gay person than it is if you commit a crime against a straight person.

CONAN: It's not against a gay person, it's against a person because he or she is gay.

JACOBS: Yes, but in practically every case like that, there will at least be the potential to say that it was because they were gay. And therefore, these kinds of laws attract charges of double standards and hypocrisy, and they give us something else to fight about.

CONAN: Well, as Hayley Gorenberg just mentioned, they were not initially passed because in order to protect gays, lesbians and transsexuals.

JACOBS: Originally, gays and lesbians were left out of the hate crime laws, which itself was a kind of a hate crime. There was a tremendous controversy in Congress over including gays and lesbians. Eventually they were included, and it became seen as something like part of a civil rights struggle, which it is. So these laws are much more important symbolically and politically than they are a criminal justice matter.

And I think very few gay and lesbian and transgender advocates are really anxious to see people punished double in cases like this. They're more concerned with starting a conversation, as Hayley said.

CONAN: Hayley Gorenberg, the federal statute, the Matthew Shepard Act, as it's known, was passed, of course, after the horrific torture and murder of Matthew Shepard. And some people said very important to send a message, but in a case like a murder like that, doubling the sentence, it's almost meaningless.

GORENBERG: Well, yes, so if you're asking about the sentence at this point, there are several different possible responses. For one thing, Dharun Ravi hasn't been sentenced yet. So we don't know to the extent his sentence will be increased as a result of the bias crime in addition to the invasion of privacy crime, both of which resulted in convictions. So we don't know that yet.

It's also the case that as people are responding to the degree of the potential sentence, not an imposed sentence but the potential sentence, it might be helpful to keep in mind that a deal was on the table that I understand he refused for extensive community service and a sentence, if he had agreed, that would not have involved this kind of jail time or perhaps jail time at all.

So there was a choice that he made. I don't know everything that went into it, obviously, but there was a choice that he made. So to take it to the ultimate maximum potential here and to say that that's a reason to consider what happened invalid or questionable I think takes us really in the wrong direction.

And I would also point out that in terms of the reason for hate crime laws, the Supreme Court has looked at this, and the Supreme Court of the United States in Wisconsin versus Mitchell in the '90s took it up and looked at governments' assertions of their need for the hate crimes laws that they put out and said that it was possible and justifiable legally to have these additional penalties when crimes were bias-motivated and met the level of proof that was required for a conviction because the targeting of people based on their traits, like race, religion and I would say sexual orientation, as well, as we see here, that this kind of targeting based on their personal traits is more likely to lead to retaliation, to community unrest, to destruction and disruption within the community and to a particular kind of emotional effect that extends to an entire community based on having members of it targeted due to their personal characteristics.

So there has been a fair amount of sort of fleshing out as high as the Supreme Court as to why it might be justifiable to have these specialized laws.

CONAN: We'll get some callers involved in the conversation in a moment, but Jim Jacobs, I wanted to give you a chance to reply to that, the reasoning of the Supreme Court that this can exacerbate the community's situation, So that justifies these laws.

JACOBS: Well, the Supreme Court said that it was not unconstitutional, which that case, Wisconsin versus Mitchell, was quite interesting because the defendant was black, and the hate crime laws had been used as frequently against blacks as they have been used against whites. So they're not something just about protecting historically discriminated-against groups.

They're used against minorities, as well. And in Mitchell, the defendant was punished three times more seriously because his victim was white than had his victim been black or had he just been quiet during the crime and not have verbalized any kind of racial epithets.

I just don't think that kind of jurisprudence is justifiable, is desirable or will sit well with the American people. And again, all crime is bad. All victims ought to be respected and treated equivalently. We ought to enforce the law even-handedly, and I think that will satisfy everyone and will avoid these kinds of controversies.

CONAN: How do we define hate crime? Give us a call, 800-989-8255. Email us, talk@npr.org. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

This is TALK OF THE NATION, from NPR News. I'm Neal Conan. We're talking about some of the questions raised about hate crimes by the conviction of former Rutgers student Dharun Ravi. Our guests are James Jacobs, director of Center for Research in Crime and Justice at NYU Law. He wrote an opinion piece for the New York Times' Room for Debate, "Weapons Weaken as Target Expands." Also with us, Hayley Gorenberg, deputy legal director at Lambda Legal, a civil rights group for lesbian, gay, bisexual and transgender people. Her piece in the Times' Room for Debate was titled "Even Nonviolent Crime Needs to be Fought."

You can find links to both their pieces at npr.org. Click on TALK OF THE NATION. We want to hear from you. How do we define hate crime? 800-989-8255. Email: talk@npr.org. You can also join the conversation on our website. Go to npr.org and click on TALK OF THE NATION.

We'll start with Brooks, and Brooks with us from Greenville in South Carolina.

BROOKS: Hello. Thank you for having me. I would like to suggest and to get the reaction to this, that this ultimately comes down to a view of the role of government, because if we're talking about a new category of crime called hate crime, the - that I guess you all were discussing is: Is it appropriate to punish that extra layer, that hate element, on top of the crime, the physical act of whatever it was itself that was the crime?

And to me, it seems that the danger there is it leads us into a direction of solving societal problems that could really decrease our liberty. I think we all, you know, recognize that society and the injustices of society in American history have been huge problems, and the government has taken roles to solve them.

But I think the question still remains - for instance, in the LGBT debate - if the government begins to step in and say you may not hold views about this group of citizens that is - that could lead to a certain action, it seems to me that this could really pave the road toward the government telling us what we are allowed to believe. And although I certainly agree that bigoted thought is wrong, I think that's for the society to solve and for the government then to deal just with the specific acts.

CONAN: Yeah, but Brooks, the laws don't address what could happen. The laws address what did happen.

BROOKS: I'm sorry?

CONAN: The laws don't address what could happen because you hold some certain belief (unintelligible), but what you did about them.

BROOKS: But the very act of - I think all I'm saying is as we debate what the consequences should be, if we begin to treat this category of crime as different, we are, in a sense, adding an additional punishment on top of the crime itself that is to make up for the hate that motivated it.

So if we're talking about hate crime at all, it is the assumed - underlying assumption is that the hate part is something that's being addressed and dealt with legally. And I think that perhaps we might want to fight and just deal with the crime part of it and let society deal with the rest, lest we move more towards tyranny. I appreciated your original point about thought crime.

CONAN: Yeah, Hayley Gorenberg, is that the right way to think of it, that the hate is being punished?

GORENBERG: I don't think so. And at Lambda Legal, we're extremely concerned with First Amendment rights and the rights of, for instances, students under the Equal Access Act to be able to express themselves without discrimination based on their point of view. And we do a lot of litigation, actually, to protect that free expression right.

But there's an entirely different, you know, consequence and situation that you're talking about when you're talking about either picking up a weapon or, in this case, using the Internet for the purpose of intimidating somebody based on their identity. So there's a difference between the thought police and the action police, and we have our government employing and effectuating the action police, who should prosecute when somebody takes an action. And so I see a clear division.

And so this First Amendment question has been raised throughout the conversations about this particular case. And an analogy that I've been using is that if you're concerned about expression or the use of the Internet for some unpopular idea or, you know, what have you, and then you look at the crime that was prosecuted here, to say that this is going to impede somebody's speech to me is like saying, well, if we had a conviction on a stabbing, that would be impeding my use of cutlery in a lawful manner. And I just don't think it's the same thing.

CONAN: Brooks, thanks very much for the call. And I think some of his thoughts were echoed in this email from Kurt in Renton, Washington: The American way is to punish deeds, not thoughts. Punishing thoughts leads to a very slippery slope that should concern everybody. If the criminalization of some thought is allowed, where does that stop? And Jim Jacobs, is that part of your concern?

JACOBS: Yes it is, and it comes up more in cases, low-level cases - for example, graffiti. And we want to put to the advocates of hate crime law: Is graffiti that carries a hateful message, a disapproved message, a vile message about a group, should that be punished twice or three times more severely than graffiti that doesn't offend?

CONAN: Hayley Gorenberg, what do you...

JACOBS: It basically remains that all victims should be treated the same way.

GORENBERG: So along those lines, in terms - I'm sorry...

JACOBS: Blind victimization is one thing that we all used to be able to agree on. All right-thinking people dislike crime, think that offenders should be punished, think that the law should, as far as possible, be even-handedly enforced. And these hate crime laws import into the criminal law a kind of hierarchy of preferred victims, which makes these laws very vulnerable to charges of hypocrisy and double standards.

CONAN: Hayley Gorenberg?

GORENBERG: So my main point here would be not to be the ultimate defender of hate crime laws as a category, but rather to say that I question the fact that we are questioning the existence of the laws in this specific instance of a prosecution that brought into play targeting based on sexual orientation, because we seem to have fewer questions as a society when we're talking about cases about race, about religion, about other personal characteristics.

And so I am strongly proposing that we question whether any doubts we may have in this situation are colored by the long-standing invisibility of people based on their sexual orientation, the victimization that they are subject to routinely.

And I would draw analogies, for instance, to a case a couple of weeks ago that the Department of Justice settled out in Minnesota, the Anoka-Hennepin School District case where, just for sexual orientation in that school district, the policy was that the teachers and staff had to be, in quotes, "neutral." They could not say anything that was not neutral about sexual orientation - only sexual orientation.

So all of the other -isms, if they were in play in that school and students were being targeted on the basis of other kinds of identity, it was clear that teachers could speak up, that staff could speak up and protect those students and intervene. But only on sexual orientation they were required to be, quote, "neutral." And the result was an entirely hostile environment for the students who ended up bringing that case.

So I raise the question, and I think we need to examine it strongly: Why does the entire hate crime context of laws come into play and come into question just here, where we're talking about this unsual instance of a sexual orientation conviction?

CONAN: Let's go next to Scott, and Scott's with us from Sacramento.

SCOTT: Hi. Thanks for taking my call. I would define a hate crime pretty simply. It would - to me, it's any criminal act perpetrated against a person or group of people based on some difference between them and the perpetrator, whether that's religion, race or sexual identity, whatever you want to - criteria you want to throw out.

And in this case, it seems pretty clear that this poor guy's roommate, I just really feel for the gentleman, Mr. Clementi, if I'm getting his name right. His roommate set up this videotape and thought it would be a fun thing to do to videotape him in an intimate encounter with another man. You know, I think he did this because he knew he was gay, and so I feel like he targeted him.

I worked in the California legislature for about a year and had the opportunity to work on a bill that would make the hanging of a noose in public with the intent to intimidate a hate crime. And a lot of my colleagues, while I was working on it, thought it was silly and thought that it was unnecessary, and these colleagues were white, or at least non-black.

And I'd always say to them: Well, maybe you don't know what it's like to be black, you know. And, you know, being white, the white people, we have a history of racial hatred between whites and blacks, and whites were the ones that hung blacks, you know, in the South. So I think a lot of it is psychological. A lot of mainstream white America doesn't get these hate crime law because it's like, well, you know - I don't think - it just doesn't their mind because most mainstream white people have never had a hate crime perpetrated against them, so...

CONAN: Jim Jacobs, let me put that to you. The display of a noose clearly an element of racial intimidation. Should that be a crime?

JACOBS: No, it shouldn't be a crime. And this is where we start to really go down the road of eroding the First Amendment. We've been well served in the U.S. when we have followed the First Amendment and when we've stayed away from censorship, and we've been poorly served whenever we've gone down the road of censorship and trying to criminalize bad ideas and evil thoughts. And that was true with the communists - laws against being a communist or espousing communist values in the '50s.

CONAN: But doesn't the display of a noose threaten - excuse me. Excuse me. Doesn't the display of a noose threaten violence?

JACOBS: It's a vile expression, but so is the marching of the neo-Nazis in Skokie, Illinois, when the Supreme Court struck that down. Should people be allowed to march in Nazi uniforms? By the way, should people be allowed to have posters that say down with the pope? Should people be allowed to express their anger at churches and at religion generally? Once we go down the road of censorship, there's no stopping us.

CONAN: Hayley Gorenberg, is this a free speech issue?

GORENBERG: I really don't think so. There is an underlying crime that has to be proved in every single one of these cases. So we're not talking about free expression of an idea about which I care very deeply, to preserve for myself and for the clients I represent and for Lambda Legal's constituency, including, very much, our young people. But the - there is a critical difference here when you have an underlying separate crime before you get to the question.

CONAN: Scott, thanks very much for the phone call. Appreciate it. We're talking about bias crimes - hate crimes, as they're better known. James Jacobs is one of our guests. He's director of the Center for Research in Crime and Justice at NYU Law. Also with us, Hayley Gorenberg, deputy legal director at Lambda Legal. And you're listening to TALK OF THE NATION, coming to you from NPR News.

And Jim Jacobs, I wanted to ask about another context too, the Matthew Shepard Act. The federal statute that covers this extended the coverage on hate crimes to sexual orientation. That gives the federal authorities the right to step in in areas of - if local or state authorities fail to prosecute. Is that not an element that is valuable?

JACOBS: Yeah. I think that is - that's - that is valuable, and that the federal government has resources, and they can be called upon in particularly difficult cases. I think that's an appropriate role for the Department of Justice and for the FBI. But it certainly shouldn't be used as a way of passing the buck for local law enforcement because the FBI and the DOJ can only handle so many cases.

CONAN: All right. Let's go next to Alice, and Alice with us from Pacifica in California.

ALICE: Hi. My question was why gender was not included under the hate crime legislation.

JACOBS: Well, gender is in the hate crime legislation, and it's interesting that our other guest doesn't talk about gender. I've written about that quite extensively. And the point is, isn't every crime committed by a male against a female, which is the overwhelming majority of intergroup crimes, are males against females, why aren't all of those presumptively hate crimes and presumptively punishable double what it would be if a male attacks another male?

CONAN: Hayley Gorenberg?

GORENBERG: We do seem to have difficultly dealing with really large numbers of discriminatory acts, don't we? I am not the - empowered to set the law in the country, as I move to enforce it or to further people's civil rights. That's our mission at Lambda Legal. But the fact that not everybody who arguably should be covered by these laws is covered by these laws doesn't, to me, detract from some of the central questions we should be asking here.

And if we're looking at the structure of our laws, and if we're going to ask questions specifically about what's going on with regard to sexual orientation, I would also suggest that we throw into the mix the fact that right now, in many states around the country, people are attempting to defend themselves after murdering gay and transgender people using a defense of so-called transgender panic or gay panic, where they say they basically should be excused from killing people because we should understand, as a society, they suggest in their official defense, that they would be motivated to kill if they found out that the person they were on a date with or the person who, you know, looked at them in a way that they disliked was gay or transgender.

CONAN: I don't know that that's a typically successful defense.

GORENBERG: Well, we certainly have entered - we're saying that absolutely should not be, but it crops up with alarming frequency.

CONAN: Does it work?

GORENBERG: I think these days we're gaining ground so that it doesn't, but it seems to take a fight to get it out of court.

CONAN: And Jim Jacobs, as we look at the hate crimes laws, they are, I think, in 45 states and, of course as we mentioned, in federal law as well. As you also referred to, it's been decided earlier by the Supreme Court. It seems to be settled law at this point.

JACOBS: Well, these, you know, these laws really were passed to be admired. Politicians got a lot of mileage in saying they were really doing something and creating a better world by passing laws that dole out more punishment. And I dissent. I don't think that we can create a more tolerant society by doling out higher punishments based upon the identity of the victim and of the configuration of the offender's group and the victims group. What we'll end up doing is creating more dissent, more division, more anger, more argument. We don't need to do that. There is no criminal justice problem for which hate crime laws are a solution.

CONAN: Jim Jacobs, thanks very much for your time today. Appreciate it.

JACOBS: It's a pleasure.

CONAN: James Jacobs, director of the Center for Research in Crime and Justice at NYU Law, joined us on the phone from Whistler in British Columbia. Hayley Gorenberg, deputy legal director at Lambda Legal, with us from our bureau in New York. Thanks to you as well. Appreciate it.

GORENBERG: Glad to be here.

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