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Are Hate Crime Laws Necessary?


This is TELL ME MORE from NPR News. I'm Michel Martin. Coming up, the latest unemployment numbers show too many adults who want a job still don't have one, but the numbers are even worse for teens. A quarter of the teens who want a job have been shut out, but some question whether teens even belong in the workforce. We'll hear a variety of views from parents, as well as from a researcher who's actually looked into the issue. That's just ahead.

But, first, we want to take a closer look at hate crime laws, as two high profile cases have brought these laws back into the headlines. Two men have reportedly confessed to a deadly shooting spree in Tulsa, Oklahoma. Police say that Jake England and Alvin Watts admitted to killing three African-Americans and wounding two others on Friday. England's Facebook postings include racial slurs and references to his father's death in 2010 at the hands of an African-American shooter.

Meanwhile in Florida, state attorney Angela Corey yesterday declined to seat a grand jury in the Trayvon Martin case. Of course, Trayvon Martin was the unarmed African-American teen who was shot and killed by a neighborhood watch volunteer.

Authorities in both cases have cautioned that it's too early to call either incident a hate crime, but that language hasn't kept the question out of the public conversation.

Here's Congressman Emanuel Cleaver. He's a Democrat from Missouri and the chair of the Congressional Black Caucus. He was talking last month about the Trayvon Martin case on MSNBC.


REPRESENTATIVE EMANUEL CLEAVER, II: Well, we believe that it's very appropriate for the Justice Department to become involved in this case because the situation has become highly volatile and because we think that a hate crime was committed.

MARTIN: According the National Institute of Justice, 49 states now have some kind of hate crimes law on the books, as well as the federal government, and these laws cover different attributes, like race, sexual orientation, national origin and disability, and many countries have them, also.

But there's still a debate over whether hate crimes laws are effective and necessary and in the best interest of justice. So we decided to talk this over with Paul Butler. He's a professor at the George Washington University Law School. He's a former federal prosecutor and he's the author of "Let's Get Free: A Hip-Hop Theory of Justice."

Welcome back to the program. Thanks so much for joining us once again.

PAUL BUTLER: Hey, Michel. It's great to be here.

MARTIN: How did these laws start in this country? And I understand that around the world there are various countries that have laws. In this country, how did this start?

BUTLER: You know, they really started as a response to groups like the Klan and other kinds of race-based terrorist organizations. The sense was that these groups, when they committed acts of violence were destabilizing communities and people in a way that was different from other kinds of crime, and so the sense was maybe if there were enhanced penalties if you acted motivated by race or gender or sexual orientation, maybe the punishment would better reflect the crime.

MARTIN: The argument is that, you know, a crime is a crime, no matter what motivates it. For example, something like the killing of James Byrd in Texas. You know, an African-American man killed by two white men under some truly horrific circumstances, but in that case, both men sentenced to death.

In the Matthew Shepard case in Wyoming, also killed under horrific circumstances. Both those men convicted of those crimes. Very harsh penalties imposed and people look at that and they say, well, what's the difference? Capital punishment is capital punishment no matter what motivates it.

BUTLER: So the idea is that, in those horrid instances, it wasn't just Mr. Byrd or Mr. Shepard who was impacted, but rather - and specifically - the African-American community and the LGBT community. So when an incident is designed to send a message to a whole group, then the punishment ought to reflect that intent.


BUTLER: Or sometimes it's a different crime. So under the federal law, if the government can prove that the person acted motivated by bias against a racial group or sexual orientation, then that's actually a separate crime. And the impetus of that, Michel, is a little bit different. So there the concern was that in some instances the police and prosecutors - the local guys - weren't stepping up and so the idea was when that happened - and there was a sense that justice demanded a criminal case be brought - that the feds could come in. So the federal hate crime law is actually a little bit different from the state sentencing enhancements.

MARTIN: And what is the difference? I was going to ask you that. What is the difference between the federal and the state laws? And is the federal - does federal involvement imply an implicit kind of criticism of the way that state authorities have handled a matter?

BUTLER: Well, the federal law makes it a separate and distinct crime to target someone on the basis of race or gender or one of the other protected categories. What we have in the states is what we call sentencing enhancements, which means it's not a separate crime, but if you're convicted of something like intimidation - that's what the guy in the Rutgers bullying case got convicted of. If you're convicted of something like that and then it turns out that your crime was based on the fact that someone belonged to a protected group - in that instance, our perception that the victim was gay - then you get more time.

MARTIN: We're talking about hate crimes laws; what they're all about, what they're intended to do, whether they're effective in their purpose. Our guest is Paul Butler. He's a professor at the George Washington University Law School. He's an author. He's also a former federal prosecutor.

As we mentioned, there has been no word yet on whether authorities in either the Oklahoma shooting case or the Trayvon Martin case will treat these as hate crimes. What do they need to evaluate?

BUTLER: Well, they have to see whether they have evidence of bias and, if there's the smoking gun in the Zimmerman case, if he really did use a racial epithet on that 911 call - and that's been subject to so much debate - that would be the best evidence of bias. Other than that, Michel, I got to tell you, it looks like kind of a garden variety manslaughter case if a prosecution is brought. So I think the prosecutor is going to have a tough time bringing that hate crimes.

MARTIN: Does the person who's accused - and, I assume, ultimately convicted - does there have to be a finding that this person was specifically motivated by animus toward that group?

BUTLER: Absolutely. So you have to prove discriminatory intent. So the prosecutor, if a hate crime is brought against Mr. Zimmerman, the government would have to prove that Mr. Zimmerman targeted Trayvon in part because he's African-American. And again, maybe there's some evidence of that, but if there is, we really haven't seen it.

MARTIN: Are people ever prosecuted for assaults against a member of the majority? Whites, Caucasians, European-Americans, if you will, if they are motivated by animus toward that group?

BUTLER: You know, Michel, that happens quite frequently, actually. There was a recent case in which some African-American boys were alleged to have gone after a young white boy and they were prosecuted for a hate crime. There are kinds of weird permutations.

In New York recently, there was a case in which a group of lesbians beat up a gay man and they were charged with a hate crime based on sexual orientation because the guy was gay, even though they were also gay. So there are some weird kind of configurations, but the law is, as long as the prosecution can prove intent to discriminate against that group, doesn't matter what group the defendant is in.

MARTIN: And another criticism of hate crimes laws is that they punish thoughts, not behaviors. You know, the argument being that the behavior - assault, homicide, whatever is already punishable by the law and, in this case, you're punishing a thought. It's a thought crime. Do you have any thoughts about that?

BUTLER: You know, as a civil libertarian, as a big fan of the First Amendment, I have to say it concerns me. So, if we think about the Rutgers bullying case, if Mr. Ravi had been convicted of intimidating the victim there because he was a nerd or because he was skinny, then he'd get five years in prison. Because he was convicted of intimidating him because he's gay or is perceived to be gay, he gets 10 years.

So it does seem like we're getting awfully close to punishing thought crimes. I think bigotry, including homophobia, is wrong, but I think, in a free society, you have the right to think what you want, no matter how wrong it is.

MARTIN: Is there any kind of ongoing dialog around hate crimes laws in the academy or anywhere else?

BUTLER: Sure. Well, there's a big academic debate centering around whether we really are punishing people for what they think and then when we look at what lawmakers do, you know, in Florida, after another hate crime, heinous crime against a homeless person, they actually broadened the category of hate crimes to include homelessness in Florida. And there were a lot of groups that were against that because they thought that was watering it down too much.

In Oklahoma, where we're now looking at this heinous crime, there was a concern about including homosexuals. So again, there's a big debate, but almost every state now has these laws. And, you know, before, I've been in here talking about how many people we're locking up and how many crimes we have, so politicians, prosecutors - they kind of like these because it's like, the more people we're locking up, the more they can say they're tough on crime. I just don't know if they're needed.

MARTIN: Paul Butler is a former federal prosecutor. He's a professor at the George Washington University Law School. He is the author of "Lets Get Free: A Hip-Hop Theory of Justice," and he was kind enough to join us in our Washington, D.C. studios.

Professor Butler, thanks so much for speaking with us.

BUTLER: It's always a pleasure. Transcript provided by NPR, Copyright NPR.