Volume XXIV

Hate Crime Regulation and Challenges

by Edited by Elaina Rahrig, Arielle Schechtman, Meagan Kenner, and Catherine Matous

The introduction of hate crime legislation within the legal framework of the United States has been a slow but steady endeavor, prompting polarizing debates between lawmakers, lobbyists, and the general public. These arguments often center on the perceived subjectivity of hate crime liability. Notwithstanding disagreements in interpretation and application, the definition of what constitutes a hate crime is laid out in federal statute. Hate crimes, or bias-motivated crimes, are characterized by two key factors. First, since “[h]ate, in and of itself, cannot be criminalized . . . hate crimes are ‘traditional offenses.’” In other words, hate crimes are not separate forms of criminal activity, but rather consist of actions that are already criminalized. A hate crime may consist of a violent act, destruction of property, interference with rights, or expressive conduct. Second, the perpetrator of the criminal act purposefully selects a victim on the basis of actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability. Thus what distinguishes hate crimes from the traditional offenses upon which they are based is the perpetrator’s biased motivation, which increases the associated penalties. This Article is an overview of legislation on hate crimes, an analysis of such legislation in the courts, and a review of related academic discussion. Part I begins with an overview of federal hate crime regulation, including the rationale for passing legislation and an analysis of the statistics supporting this rationale. Parts II and III review the types of federal hate crime statutes that have been passed, and the major categories of hate crimes that have been addressed or contemplated by federal legislators. Part IV discusses progress made in state hate crime legislation and how it differs from federal legislation.

Hate Crime Reg