Contemporary Hate Crime Legislation in the US

Introduction

“There’s a virus in our country. A virus called ‘hate.’”[1]

These words rang
especially true when white supremacists descended on Charlottesville, Virginia
in August of this year.[2] On Friday August 11, more
than 250, mostly young, white males began massing around Nameless Field, a
large stretch of grass behind the Memorial Gymnasium at the University of
Virginia.[3] These men carried unlit
torches, which were being filled with kerosene by workers at a nearby table.[4] Within minutes, the marchers
lit their torches.[5]
They took off marching and immediately began yelling slogans, such as “Blood
and soil,” “You will not replace us,” and “Jews will not replace us!”[6] That was how the Unite the
Right rally began. By the end of the weekend, violent clashes between the Unite
the Right protestors and counter-protestors would result in the death of
Heather Heyer, a 32-year-old woman from Charlottesville who was there to protest
against the white supremacist rally.[7]

Scenes like the one in Charlottesville are becoming increasingly common in this country.[8] According to the Southern Poverty Law Center (SLPC), the number of hate groups in the United States has been rising for the past two years, partially due to the encouraging rhetoric of Donald Trump, both during his campaign and his presidency.[9] SLPC found that the most dramatic increase was the near-tripling of anti-Muslim hate groups.[10] But this increase in hate groups is not just from the increase in anti-Muslim groups. In its most recent report, SPLC found that the total number of hate groups in the U.S. in 2016 grew to 917 from 892, just a year earlier.[11] In addition to anti-Muslim groups, this increase is being driven by an increase of anti­immigrant, anti­LGBT, white nationalist, neo­Nazi, neo­Confederate and black separatist organizations.[12] Additionally, many alt-right hate groups are now on the rise.[13]

The rise in hate groups
over the past two years has also been accompanied with the rise in hate crimes,
particularly since the 2016 election.[14] Using a combination of
news reports and witness testimony, SLPC counted almost 900 incidents of hate
or bias in the ten days after the election.[15] In the first month after
the election, SLPC counted 1,094 incidents, and 1,863 between November 9 and
March 31.[16]

While hate crimes are
not a new phenomenon, the increase in the number and membership of hate groups
and of hate crimes is alarming. What is also alarming is the difficulty in
prosecuting reported hate crimes, partially because prosecuting a hate crime
requires proof of the individual’s motivation in committing this crime. This paper
seeks to set out the guidelines for a rule of evidence that would allow for the
introduction of membership in a hate group into a hate crime trial to prove
motivation while protecting the First Amendment and without unfairly
prejudicing the defendant. Part I of this paper examines the incidence of hate
crimes in the U.S., Part II sets out the history of hate crimes legislation in
this country, and Part III looks at some of the constitutional challenges to
hate crimes statutes and sentence enhancements, with particular emphasis on
freedom of association. Lastly, Part IV sets out the guidelines for a clear rule
of evidence that would make a defendant’s membership or participation with a
hate group admissible in criminal hate crime trial.

Hate Crimes in the Unites States

From 2004 to 2015 U.S.
residents experienced an average of 250,000 hate crime victimizations each year,
of which about 230,000 were violent hate crime victimizations.[17] However, less than half
of those hate crimes are reported to the police and violent hate crimes were
less likely to result in arrest compared to violent non-hate crimes.[18] Many hate crimes are not
reported to police out of shame or concerns about the way that personal matters
involved in the crime will be managed by those who are investigating it.[19] From 2011 to 2015, the
Bureau of Justice Statistics (BJS) found that racial bias was the most common
motivation for hate crimes, followed by ethnicity and gender.[20] BJS also found that hate
crime victimizations were much more likely to occur outside of the home such as
commercial places, parking lots, and at schools. [21]

Hate crimes have a
particularly devastating effect on not just the victim, but the target
community, and society as a whole.[22] Because the victim in a
hate crime is selected based on a specific, immutable reason, such as that
person’s race, ethnicity, gender, or sexual orientation, the victim
may suffer greater emotional and psychological damage.[23] As a result, it is not
uncommon for a hate crime victim to experience withdrawal, depression, anxiety,
feelings of helplessness, sleep disorders, loss of confidence, and an extreme
sense of isolation.[24] Additionally, because the
victim is attacked based on a personal characteristic, he or she can have a
heightened sense of vulnerability, which may cause victims to drastically alter
their attitudes and lifestyle in order to avoid future attacks.[25]

Hate crimes are likely
to have a more harmful effect on the target community than non-hate crimes do
as well.[26]
“In this sense, hate crimes are seen as “‘message crimes,’ in effect, sending ‘a
message that members of a certain group are not wanted in a particular neighborhood,
community, workplace, or college campus.’”[27] When the victim is attacked
because of an immutable characteristic, members of the target community view it
“as an attack on themselves directly and individually.”[28] This can create a feeling
among the target community that any one of them could be a victim of a similar
crime.[29] Hate crimes can also
foster distrust and tension among members of different groups and they can
cause members of affected groups to isolate themselves within the larger
society.[30]

History of Hate Crimes Legislation

During most of our country’s history, hate crime legislation did not exist and federal hate crime legislation did not exist until the mid-twentieth century.[31] The Civil Rights Act of 1968 was the first to create a federal cause of action for crimes that were motivated by the victim’s race, color, religion, or national origin.[32]  However, this statute only extended to hate crimes that that were committed against people who were engaging in federally protected activities, such as voting, serving as a juror, traveling between states, or attending a public school.[33] The statute required prosecutors to allege a federal civil rights violation in order to get the enhanced penalty for a hate crime.[34] Because of this, and because of the increase in hate crimes during the few decades after the Civil Rights Act was passed, states began to develop their own hate crime laws in the early 1980s.[35] By 1992, forty-six states and the District of Columbia had enacted hate crime statutes.[36]

However, state hate crime
laws were equally as flawed, with problems of selective enforcement, under enforcement,
underfunding, and lack of uniformity in their application.[37] While almost all state
statutes include hate crimes that are motivated by biases based on race,
ethnicity, religion, and national origin, many leave out hate crimes that are motivated
by biases based on gender, sexual orientation, and disability.[38] Four states (Arkansas,
Indiana, South Carolina, and Wyoming) lack hate crimes statutes entirely.[39]

Heightened public
awareness of hate crimes and a renewed advocacy for federal regulations
resulted in the passage of three noteworthy federal laws in the early 1990s.
First, the Hate Crimes Statistics Act of 1990 was the first federal law to use
the term “hate crime” and it required the Attorney General to collect and
publish data on crimes that were motivated by bias. Next, the Violence Against
Women Act of 1994 created a civil remedy for victims of crimes motivated by a
person’s gender.[40]
Finally, the Hate Crimes Sentencing Enhancement Act of 1994 specified eight base
crimes for which judges could impose an enhanced penalty if it was determined
beyond a reasonable doubt that the crimes were in fact hate crimes.[41] However, this legislation
applied only to federal crimes and crimes committed on federal property.[42] While these early federal
laws represented major progress, they did not provide sufficient legal recourse
for most hate crime victims. However, the Matthew Shepard and James Byrd, Jr. Hate
Crimes Prevention Act of 2009 expanded the federal definition of hate crimes, enhanced
the legal tools available to prosecutors, and increased the ability of federal
law enforcement to assist state and local enforcement partners.[43]

Unfortunately, hate
crimes are still difficult to prosecute. Prosecuting these types of crimes require
proving the offender’s bias or hate as the motivation for the crime.[44] “In other words, the
statutes require prosecutors to demonstrate the accused’s criminal conduct was
motivated by racism.”[45] Not only must the
prosecutor prove bias, the prosecutor must show that the bias is what actually
motivated the criminal conduct.[46] Scholars have argued
that, “by incorporating such stringent proof of bias motivation into the
language of hate crime statutes, prosecutors are unable to prosecute hate
crimes effectively, except in ‘the most egregious and clear cases of bias
motivation.’”[47]
Obtaining reliable proof of the defendant’s motive can be an incredibly challenging
endeavor.[48]
Currently there is no standard definition of what counts as biased motivation
or what evidence can and should be used.[49] This leads to the
difficulty prosecutors have in obtaining convictions.

Hate crime experts
generally agree that hate crime laws probably don’t deter the commission of any
crimes and there’s no good research that answers this question definitively.[50] Jeannine Bell, a scholar
on hate crimes at Indiana University Maurer School of Law stated that
perpetrators don’t “think about whether they’re going to commit a hate crime,
look to see whether there’s a law that can be punished, and then don’t commit
the hate crime when they learn it could be punished.”[51] However, Professor Bell
and other experts believe that it doesn’t matter if hate crime laws actually
deter the commission of hate crimes.[52]

Hate crime laws can do
far more than just enhance the criminal penalties for committing the base level
criminal act. Many hate crime statues devote funds to police departments—so
they can, for example, set up community liaisons who work closely with affected
communities to ensure they feel safe.[53] Hate crimes statutes also
label these acts as a particularly serious type of crime, which can encourage
law enforcement to take the issue more seriously.[54] “By making it a hate
crime, you call attention to it in the minds of police [and] in the minds of
prosecutors,” Professor Bell said.[55] Additionally, most hate
crimes are low-level crimes or misdemeanors that police and prosecutors may not
pay attention to.[56] However, once these low-level
acts are defined as hate crimes, they get more attention from law enforcement.[57]

Furthermore, hate crime
legislation allows groups that wouldn’t normally feel safe with police officers
to come forward and it helps police officers to understand the effects of these
crimes within those targeted groups.[58] More broadly, hate crime
statutes send societal signals that we as a community will not tolerate hate.[59] Experts agree that hate
crimes are message crimes against certain groups of people and that hate crime
laws act as a counter-message to the prejudice that causes people to commit
these crimes.[60]
“Hate crime laws have important symbolic meaning…hate crimes are message
crimes—that is, they send a message not only to the primary victim but to every
member of this group.”[61] The message that a hate
crime sends must be counteracted, and strong hate crime laws can do just that.[62] Hate crimes laws send a
message to the perpetrator, informing him that society will not tolerate his
hate, and, they send a message to victims and potential victims that they are
welcome in the community and that they will be protected.[63]

Constitutional Challenges to Hate Crime Laws

Throughout their
existence, hate crimes statutes have been subject to significant constitutional
challenges for violating the First Amendment.

Wisconsin v. Mitchell

In Wisconsin v.
Mitchell, the Supreme Court of Wisconsin heard a challenge to a
penalty-enhancing hate crime statute.[64] Mitchell had been
convicted under Wisconsin’s hate-crime statute for attacking a
fourteen-year-old white male after discussing scenes from Mississippi Burning.[65] Mitchell instigated the
attack by pointing a group of about ten African-Americans toward the victim and
the group proceeded to beat the victim severely, they stole his shoes, and they
left him with severe brain damage.[66] A jury convicted Mitchell
of aggravated battery and found that he had violated the Wisconsin hate crime
statute and was therefore subject to the penalty enhancement.[67] The enhanced penalty provision
of the statute allowed the court to sentence Mitchell to four years instead of
the maximum sentence of two years for aggravated battery.[68] Mitchell challenged the
constitutionality of the penalty-enhancement statute stating that the statute
punishes bigoted thought and not conduct.[69] The Wisconsin Supreme
Court held the statute violated the First Amendment, stating that the law both directly
and indirectly encroached on the right to free speech.[70]

However, the U.S.
Supreme Court unanimously reversed the Wisconsin Supreme Court and delivered a
single opinion holding the Wisconsin statute valid.[71] First, the Court noted
that physical assault is not, under any circumstances, “expressive conduct
protected by the First Amendment.”[72] The Court additionally
noted that sentencing judges have traditionally been allowed to consider a
defendant’s motives when determining sentence and while a defendant’s general
biases cannot be considered in setting the sentence, a specific bias held by
the defendant is allowed to be considered.[73] The Supreme Court found
that the Wisconsin statute met this test.[74] For example, the fact
that a defendant is a white supremacist or Neo-Nazi is not relevant when
determining a sentence for general battery, but that evidence would be
incredibly relevant if the defendant’s victim is African-American and there is
evidence that shows that the crime was an expression of the defendant’s racist
beliefs.

The Court drew a
distinction between the Minnesota ordinance at issue in R.A.V. v. City of
St. Paul, which was directed at expression, and the Wisconsin statute,
which is directed at an individual’s conduct.[75] The Court held that
bias-motivated conduct may be punished more severely because it is “thought to
inflict greater individual and societal harm.”[76] Finally, the Court
rejected the idea that the Wisconsin statute created a “chilling” effect on
First Amendment protected rights, finding that they “are left, then, with the
prospect of a citizen suppressing his bigoted beliefs for fear that evidence of
such beliefs will be introduced against him at trial if he commits a more
serious offense against person or property. This is simply too speculative a
hypothesis.  .  .  .”[77] With its ruling, the Supreme
Court established that it was permissible to consider a person’s speech and
biases in a hate crime trial without violating the First Amendment.

Dawson v. Delaware

During the early morning hours of December 1, 1986, David Dawson escaped from a Delaware prison and during the course of his escape, Dawson broke into the home of Madeline Kisner, brutally murdered her, and then stole her car.[78] Using Kisner’s car and the money he had taken from her home, Dawson drove south until the police apprehended him the following morning.[79] Dawson was tried and convicted in a Delaware Superior Court of first-degree murder and possession of a deadly weapon during the commission of a felony, along with various other crimes.[80] This court also conducted a penalty hearing to determine whether Dawson should be sentenced to death for his first-degree murder conviction.[81] Shortly before the hearing, Dawson agreed to a stipulation that allowed the prosecutor to introduce Dawson’s membership in the Delaware Branch of the Aryan Brotherhood, a white supremacist, prison gang into evidence.[82]

Prior to trial, the prosecution conceded that the nature of the various chapters of the Aryan Brotherhood may differ, stating that “there are cells or specific off-shoots within various local jurisdictions that don’t see eye to eye or share a union, if you will.”[83] With no specific evidence linking the violent and racist beliefs of the California chapter of the Aryan Brotherhood to those of the Delaware one, the prosecution submitted the stipulation as evidence of Dawson’s character under Delaware’s evidence law.[84] Additionally, the prosecution introduced evidence of Dawson’s tattoos, which indicated his ties to the prison gang and to satanic worship,[85] and Dawson’s long criminal history.[86] Dawson submitted evidence of his familial ties and his good behavior during imprisonment as mitigating evidence.[87] The jury recommended Dawson be sentenced to death after finding three statutory aggravating factors set out by Delaware law and concluding that they outweighed the mitigating factors that Dawson presented.[88] In accordance with this recommendation, the trial court sentenced Dawson to death.[89]

On appeal, the Supreme
Court of Delaware upheld Dawson’s death sentence and affirmed the trial court’s
decision to admit the stipulation referring to the Aryan Brotherhood into
evidence.[90]
The Delaware Supreme Court determined that a finding of one aggravating factor
justified the admission of as much evidence on Dawson’s life as possible since
the determination to impose a death sentence must be an individualized one.[91] The state supreme court
upheld the admissibility of the Aryan Brotherhood evidence, finding that the evidence
admitted at the sentencing hearing focused on Dawson’s character and did not appeal
to the jury’s “prejudices concerning race, religion or political affiliation.”[92]

The United States
Supreme Court granted certiorari to
determine whether the introduction of associational evidence at a capital
sentencing, where the evidence is not directly relevant to determining the
appropriate punishment, constitutes a violation of the First Amendment.[93] Chief Justice Rehnquist,
writing for the majority, joined by Justices Scalia, Blackmun, White, Stevens,
O’Connor, Kennedy and Souter, vacated Dawson’s death sentence and remanded the
case back to the trial court for resentencing.[94] The Supreme Court
determined that the admission of Dawson’s association with the Delaware Aryan
Brotherhood violated his right to freedom of association pursuant to the First
and Fourteenth Amendments, since such evidence was not relevant to any issues
decided during the sentencing phase.[95] The Court explained that
the evidence presented was not relevant to prove an aggravating factor because
the evidence had no bearing on the circumstances of the crime Dawson committed
and that it merely demonstrated Dawson’s abstract beliefs.[96] Using this line of
reasoning, the Court further held that such associational evidence may not be
employed to rebut any mitigating evidence presented by the defendant.[97] Therefore, for
prosecution to demonstrate a defendant’s “bad character” through rebuttal, the
State must show more than mere affiliation.[98]

In rejecting the state’s
justification of the prosecutor’s statements regarding Dawson’s affiliation
with the Aryan Brotherhood to rebut the defendant’s mitigating evidence, the
Court emphasized that while the State has the right to rebut any mitigating
evidence presented by the defendant and to offer its aggravating factors, the
State cannot do so where the evidence simply proves the abstract beliefs of an
organization to which the defendant belongs.[99] Chief Justice Rehnquist concluded
that the evidence presented by prosecution reflected only the gang’s abstract beliefs
and, without more specific findings of the defendant’s beliefs, could not be viewed
as an aggravating factor.[100] Consequently, the Court determined
that the state violated the First Amendment by introducing evidence of the
abstract beliefs of the Aryan Brotherhood to rebut the mitigating good
character evidence presented by Dawson.[101]

Furthermore, the Court stated
that even if the Delaware Aryan Brotherhood chapter was racist, both Dawson and
the murder victim were white, and therefore, the elements of racial hatred that
were present in Barclay—where the Court found that associational evidence was
admissible—were not present in this case.[102] In an earlier case, the
Court found that a capital defendant’s membership in an organization that
advocated the killing of any particular group of people could be relevant to
determining the defendant’s dangerousness in the future.[103] However, the Court
explained that the prosecution in this case failed to show the defendant’s
membership in the Aryan Brotherhood was relevant with respect to future
dangerousness.[104] The Court also found
that the effect of the admission of Dawson’s association with the Aryan
Brotherhood invited the sentencing jury to draw the adverse inference that the
defendant’s abstract beliefs proved his future dangerousness.[105] Such an inference, the
Court determined, constituted a violation of Dawson’s right to freedom of
association under the First Amendment.[106]

However, the Supreme Court
rejected Dawson’s argument that the Constitution established a per se barrier to the admission of First
Amendment-protected conduct into evidence as an aggravating factor.[107] In doing this, the Court
backed away from its position in Zant v. Stephens which held an aggravating
factor was invalid if “it authorized a jury to draw adverse inferences from conduct
that is constitutionally protected,” finding that this language was too broad[108] The Court determined that
its recent holding in Payne v. Tennessee was more appropriate rule.[109] In Payne, the
Court permitted the factfinder to consider a wide range of material during the
sentencing phase so as long as the evidence was directly relevant to the crime
that was committed.[110]

In setting out its
decision, the Court discussed two earlier cases where the Court allowed
protected First Amendment conduct to be used against the defendant during
trial.[111]
In Barclay v. Florida, the Court found that a sentencing judge could
consider racial hatred as an aggravating factor because the defendant’s racist
beliefs and membership in a hate group influenced him to commit the crime in
hopes of starting a race war.[112] In United States v.
Abel, the Court permitted the state to show bias to impeach a defense
witness with evidence that because both the witness and the defendant were
members of the Aryan Brotherhood they were sworn to lie for each other to cover
up crimes.[113]
The Court noted that in both Barclay and Abel, the defendant’s association with
known hate groups was directly relevant to the issue being decided at trial.[114] Therefore, the Supreme
Court found that there is no per se barrier
to the admission of evidence at trial or sentencing, if the conduct played a
role in or influenced the defendant’s actions.[115]

While the Supreme Court
did conclude that Dawson’s membership in the Aryan Brotherhood was not
admissible at his sentencing, the Court’s determination that there is not a per se barrier to First
Amendment-protected conduct being introduced at trial was an incredibly
important ruling. This is particularly the case for trials involving alleged
hate crimes. Because a defendant’s motivation for committing the crime must be
proven in a hate crime trial, the defendant’s associations with a hate group is
an extremely relevant factor at trial. This ruling gives prosecutors more tools
when prosecuting these crimes.

Operation in the Lower Courts: United
States v. Dunnaway

In United States v.
Dunnaway, two years after the Supreme Court decided Dawson, the defendants James
Austin Dunnaway, Jeffrey Colin Van Cleave, Matthew David Cannon, and two other
white men left a party with the intent to assault any African-American man they
could find.[116]
After leaving the party, the defendants found an African-American man sitting
in a public park talking with his wife, who was white.[117] The defendants began
attacking the man, repeatedly kicking him in the head and his body.[118] During the attack, one
of the attackers identified himself as a “skinhead” and used a racial
slur.[119]
As a result of the vicious assault, the victim suffered multiple injuries,
including a boot imprint on his forehead that remained for several days after
the attack.[120]
Following the attack, the defendants returned to the party and reported they
had beaten a black man because he had been sitting in a park with a white
woman.[121]

Following the
defendants’ arrest, Dunnaway and Van Cleave pleaded guilty to interference with
a person’s enjoyment of a public facility because of the person’s race pursuant
to 18 U.S.C. § 245(b)(2)(B).[122] At trial, a jury found
Cannon guilty of the same charge and they also found him guilty of conspiracy
to commit a federal offense.[123] Cannon went on to appeal
his conviction, challenging the admission of the evidence of his membership in
a skinhead group and that he held racist views.[124] However, the appellate
court found that because the crime in this case involved elements of racial
hatred, the evidence showed more than the defendant’s bad character.[125] Additionally, the
testimony was relevant to identify the victim’s attackers.[126] Finally, the evidence of
the defendant’s racial views and his association with “skinheads” was relevant
to his discriminatory purpose and intent, which was an element of the charges
against him.[127]

Guidelines for a Rule of Evidence Dealing with Hate Group Membership and a Potential Evidence Rule

Despite the cases outlined above allowing a defendant’s membership in hate groups to be introduced in hate crime trials, there is still no consensus as to what constitutes sufficient evidence or what limitations there should be so as to not unfairly prejudice the defendant.[128] While not setting out a specific rule, this paper sets out some guidelines that should be considered in the formulation and application of such an evidence rule.

What groups should be considered
hate groups?

The first consideration is how to determine which groups should be considered hate groups for the purpose of this rule? There are many groups that hold offensive and objectionable beliefs but may not be considered a hate group.[129] The Southern Poverty Law Center’s (SLPC) definition of a hate group offers some insight. SLPS defines hate groups as those groups that vilify entire groups of people for immutable characteristics such as race, national origin, religion, or their sexual orientation.[130] Under SPLC’s definition the propensity for violence is not a criterion for being listed as a hate group.[131] Because of this, groups that don’t necessarily have a propensity for violence, although their rhetoric might encourage it, object to be listed with groups like the Ku Klux Klan of the Aryan Brotherhood.[132] Considering groups that may not have a direct propensity for violence as a hate group still has significant evidentiary value in determining if one of its members committed a hate crime.

Another helpful definition comes from the Anti-Defamation League (ADL). ADL defines a hate group as an “organization whose goals and activities are primarily or substantially based on a shared antipathy towards people of one or more other different races, religions, ethnicities/nationalities/national origins, genders, and/or sexual identities.”[133] ADL goes on to further state that the mere presence of bigoted members in a group or organization is typically not sufficient to qualify that group as a hate group.[134] The group itself must have some “hate-based orientation or purpose.”[135] Groups that would fit these definitions would be groups such as the Aryan Brotherhood, Neo-Nazi groups, white supremacist groups, anti-Muslim groups, and anti-LGBTQ groups.

This paper does not advocate directly adopting these definitions of a hate group. Instead these definitions could be used to provide guidance when determining if a group is a hate group or not. However, using these two definitions as guidance is not the only method that would be available.

Another possible method
would be to let the prosecutor demonstrate by evidence—such as the purposes and
goals of the group, the group’s rhetoric concerning certain vulnerable
communities, and the actions that the group has engaged in—in each individual
case. The prosecutor could demonstrate that whatever group the defendant
belonged to was advocating hatred as part of its message, which would qualify
it as a hate group. This method would avoid pre-judging or permanently labeling
a particular group, which could be more problematic when it comes to the First
Amendment. Additionally, this method avoids the problem of labeling an entire
group when sub-groups of the larger organization may hold more hateful and
prejudicial beliefs that the larger organization would not hold. This
case-by-case approach could be incorporated into the evidence rule. The new
rule could mandate that the prosecutor show by preponderance of the evidence or
clear and convincing evidence that the group the defendant belonged to was in
fact a hate group. If the judge then determines that the group is a hate group,
then the rest of potential rule would apply, subject to other limitations
described below.

How extensive must membership be?

            Another
important consideration is how extensive should an individual’s membership with
a hate group be? This is an important question to answer because this rule
would not be intended to broadly sweep in all of a defendant’s conduct or
associations.

One recent case shows
just how problematic this question can be. In May 2017 Sean Urbanski, a
22-year-old University of Maryland student, walked up to 23-year-old Richard
Collins III, a US Army lieutenant, and fatally stabbed him at a campus bus
stop.[136]
While investigators still don’t know what motivated the murder, they do that
that Collins, who was visiting a friend at the university and did not appear to
know Urbanski, was black, and that Urbanski belonged to a Facebook group called
Alt-Reich: Nation, a white supremacist group.[137] According to
investigators, the Facebook group showed “extreme bias against women,
Latinos, members of the Jewish faith, and especially African Americans.”[138] Digital footprints have
become crucial pieces of evidence for investigators in this new age of social
media, but they’ve also presented new and complicated challenges to the legal
system.[139]
Social media presence is forcing courts to grapple with new questions about the
significance of a Facebook post, a “Like,” a follow, or a tweet. In
Urbanski’s case, the court, will have to carefully decide how much weight to
put on a person’s online affiliations and whether merely liking a hateful
online group would constitute evidence of membership in the group of intent to
commit a hate crime.

While a bright line rule
would provide the most clarity, it would not be the best approach. Instead the
rule could enumerate a list of actions that would suggest involvement that meets
the threshold of being an active member. If that is the approach, the rule
should include language that states the actions listed are not the only actions
that would be enough to show actual membership in the hate group. Some of the
actions that could be listed would be donating to the organization, paying
membership dues, holding leadership positions in the organization, or
participating in activities such as meetings and rallies. When it comes to
social media affiliations, a single “like” or post on a hate group’s page would
not be enough to show membership. However, extensive interaction and engagement
with the group online could go toward a showing of membership.

Another method would be
to require the prosecutor to make a showing of membership in that specific
case. The judge would then make the final determination of whether or not the
defendant’s actions constitute membership in that group. This method could
prove useful because it would allow individual determinations on a case-by-case
basis and it would avoid having to list out in a rule what does and does not
constitute membership in a group.

Should membership be recent?

            Additionally,
hate group membership should be recent. Allowing this rule to reach back in
time and allow a defendant’s membership in a hate group from many years ago
could prove to be unfairly prejudicial to the defendant. This rule should
recognize an individual’s capacity to change for the better and to realize the
wrongfulness of one’s hateful beliefs.

            The
difficulty is determining a time cutoff for membership. A helpful starting
point would be Federal Rule of Evidence 609, which allows for prior convictions
to come in to impeach a witness’s character for truthfulness.[140] This rule places special
considerations and restrictions for convictions that are more than ten years
old.[141] Adopting a recentness
requirement for hate group membership would provide protections to the
defendant and it would help to ensure that defendants are not being punished
for beliefs that the defendant may no longer hold.

Federal Rule of Evidence 403
Considerations

            Rule
403 is commonly known as the “unfair prejudice” rule.[142] This rule states that
relevant evidence may be excluded if its probative value is substantially
outweighed by any of three effects that detract from a fair trial: unfair
prejudice, confusing the issues or misleading the jury, or causing undue delay,
wasting time, or needlessly presenting cumulative evidence.[143]

In order for relevant evidence to “substantially”
outweigh probative value, the probative value must be small, i.e., being of
little or no relevance to begin with.[144] For example, you cannot
exclude evidence that a child was molested as unfairly prejudicial if the
defendant is on trial for that very act. Likewise, it would not be unfairly
prejudicial to call five witnesses to the stand to describe the same thing if
they are describing the event itself.

Determining
“probative value” is at the discretion of the judge.[145] In general, it is
determined by factors, such as: how logically related is the evidence to the
key disputes, how important is the issue to the resolution of the case, how
necessary is the evidence (i.e., how much other evidence with lower prejudicial
effect has already been introduced or will be introduced), and remoteness (how
far removed in space and time from the people, places, and events

being litigated).[146]

            There
are exceptions to Rule 403. The Federal Rules of Evidence set out two
rules—rules 413 and 414—that allow evidence to be admitted that, most likely,
would be considered unfairly prejudicial absent these rules.[147] Rule 413 allows a
defendant’s past sexual assaults to be admitted in a trial for sexual assault
and rule 414 allows a defendant’s past child molestations to come in at trial
for child molestation.[148] These rules were adopted
in part due to the difficulty in prosecuting crimes of sexual assault and child
molestation.[149]
Despite the good intentions of these rules, they have faced significant
criticism for being too prejudicial toward defendants.[150] An evidence rule that
would allow admission of a defendant’s membership in a hate group would operate
in a similar fashion to rules 413 and 414. However, in consideration of the
significant criticisms of those rules, it would need to contain the specific
limitations described above.

Potential Rule

            A
possible rule could read as follows:

Rule X. Evidence
of Membership in a Hate Group in Hate Crimes Cases

• Permitted Uses In a criminal case in which
  a defendant is accused of a hate crime, the court may admit evidence of the
  defendant’s membership in a hate group for the purpose of proving bias against
  the victim and as motive for committing the crime. The evidence may be
  considered on any matter to which it is relevant.
• Limit on Using Evidence
  After 10 Years Evidence
  of membership in a particular hate group is inadmissible if more than 10 years
  have passed since the defendant’s membership in that particular hate group,
  unless:

(1) its probative value, supported by specific facts
and circumstances, substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable
written notice of the intent to use it so that the party has a fair opportunity
to contest its use.

• Disclosure to the
  Defendant If
  the prosecutor intends to offer this evidence, the prosecutor must disclose it
  to the defendant, including witnesses’ statements or a summary of the expected
  testimony. The prosecutor must do so at least 15 days before trial or at a
  later time that the court allows for good cause.
• Definition of a Hate
  Group Ahate group as an organization whose
  goals and activities are primarily or substantially based on a shared hatred or
  antipathy towards people of one or more other different races, religions,
  ethnicities/nationalities/national origins, genders, and/or sexual identities.
• The
  prosecutor must show by preponderance of the evidence that the organization is
  a hate group, and per Rule 104, the judge will make the ultimate determination
  of whether the group is a hate group or not, subject to these limitations:  
  • The
    mere presence of bigoted members in a group or organization is typically not
    sufficient to qualify that group as a hate group.
  • The
    group itself must have some hate-based orientation or purpose.
• Extent of Membership The prosecutor must make
  a showing that the defendant was, in fact, an active member of the hate group.
  Evidence of this includes, but is not limited to: (1) Donating to the
  organization;
• Paying
  membership dues;
• holding
  leadership positions in the organization; or
•  Participating in activities such as meetings
  and rallies.
• When
  it comes to social media affiliations, a single “Like” or post on hate group’s
  page is not sufficient to show membership. Extensive interaction and engagement
  with the group online is required for a showing of membership.

Conclusion

            Hate
crimes have become an all-to-frequent occurrence in our society, especially in
today’s political and social climate. They are a problem that cannot be ignored
and hate crimes must be prosecuted, regardless of whether they are committed
because of a person’s race, gender, sexual orientation, or disability. Because
of the increased harms that hate crimes inflict on the individual victim, the
target community, and society as a whole, hate crimes require attention from
law enforcement, prosecutors, the courts, and the public.

Unfortunately,
prosecuting hate crimes is challenging for law enforcement and prosecutors.
Sometimes, victims are fearful of stepping forward or lack confidence in local law
enforcement to pursue the perpetrators. Other times, victims fail to report
hate crimes because they are reluctant to acknowledge their sexual orientation,
immigration status, or other personal information to police. Meanwhile, crimes reported
to police may not be classified as hate crimes because law enforcement might be
unable to find evidence of bias or hate during the investigation. Additionally,
establishing motive and intent—which are key elements of proving hate
crimes—requires investigators to work diligently to locate evidence relevant to
the defendant’s state of mind before and during the crime and evidence that
points to a defendant’s bias as the reason for committing the crime. This can
prove incredibly difficult.

Fashioning a rule that
would allow evidence of a defendant’s membership in a hate group would help
prosecutors by allowing relevant evidence to come in at a trial for a hate
crime. Furthermore, a rule of evidence would allow for this membership to come
in while also placing limits on this evidence, which would afford some
protections to the defendant. The rule and guidelines above are merely a
starting point, but it is a much-needed step in the right direction.

---

[1] Jaweed Kalem, ‘There’s a virus in
our country’: The ‘Trump effect’ and rise of hate groups, explained, LA Times,
(May 31, 2017 3:00 am).

[2] Joe Heim, Recounting a Day of Rage,
Hate, Violence and Death, Washington Post, (Aug. 14, 2017).

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Southern Poverty Law Center News, Hate Groups Increase for Second
Consecutive Year as Trump Electrified Radical Right, Southern Poverty
Law Center News, (Feb. 15, 2017).

[9] Id.

[10] Southern Poverty Law
Center Intelligence Report, Spring 2017, Issue 162.

[11] Id.

[12] Aljazeera, Mapping
Hate: The Rise of Hate Groups in the US, (Aug. 16, 2017 8:51 GMT).

[13] BBC, White Supremacy: Are US
Right-wing Groups on the Rise?, BBC,    http://www.bbc.com/news/world-us-canada-40915356
(Aug 13, 2017).

[14] NY Times

[15] Southern Poverty Law
Center Intelligence Report, Spring 2017, Issue 162.

[16] Id.

[17] US Department of Justice Bureau of
Justice Statistics, Special Report: Hate Crime Victimization, 2004-2015, US
Department of Justice, (June 2017).

[18] Id.

[19] Janell Ross, Why Americans Can’t
Agree on Which Crimes are Hate Crimes, New York Times, (Sept 22).

[20] US Department of Justice Bureau of
Justice Statistics, Special Report: Hate Crime Victimization, 2004-2015, US
Department of Justice, (June 2017).

[21] Id.

[22] Troy A. Scotting, HATE CRIMES AND
THE NEED FOR STRONGER FEDERAL LEGISLATION, 34 Akron L. Rev. 853, (2001).

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Carta T. Coker, HOPE-FULFILLING OR
EFFECTIVELY CHILLING? RECONCILING THE HATE CRIMES PREVENTION ACT WITH THE FIRST
AMENDMENT, 64 Vand. L. Rev. 271, (2011).

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] Troy A. Scotting, HATE CRIMES AND
THE NEED FOR STRONGER FEDERAL LEGISLATION, 34 Akron L. Rev. 853, (2001).

[39] German Lopez, Why it’s
so hard to prosecute a hate crime, Vox, (May 23, 2017 1:00 pm).

[40] Carta T. Coker, HOPE-FULFILLING OR
EFFECTIVELY CHILLING? RECONCILING THE HATE CRIMES PREVENTION ACT WITH THE FIRST
AMENDMENT, 64 Vand. L. Rev. 271, (2011).

[41] Id.

[42] Id.

[43] Shirin Afsous, PROVING HATE: THE
DIFFICULTIES OF SUCCESSFULLY PROSECUTING BIAS-MOTIVATED CRIMES, 22 Suffolk J.
Trial & App. Advoc. 273, (2017-2017).

[44] Id.

[45] Id.

[46] Id.

[47] Id.

[48] Id.

[49] Jeannine Bell, Policing
Hatred, New York University Press, (2002).

[50] German Lopez, Why it’s
so hard to prosecute a hate crime, Vox, (May 23, 2017 1:00 pm).

[51] Id.

[52] Id.

[53] Id.

[54] Id.

[55] Id.

[56] Id.

[57] Id.

[58] Id.

[59] Id.

[60] Id.

[61] Id.

[62] Id.

[63] Id.

[64] Kevin N. Ainsworth, TARGETING
CONDUCT: A CONSTITUTIONAL METHOD OF PENALIZING HATE CRIMES, 20 Fordham Urb.
L.J. 669, (1993).

[65] Id.

[66] Id.

[67] Id.

[68] Id.

[69] Id.

[70] Id.

[71] Thomas M. Carpenter, ARE THERE
SOME PROBLEMS THAT LEGISLATION CAN’T SOLVE?: A PRIMER ON HATE CRIME
LEGISLATION, 27-AUT Ark. Law. 34, (1993).

[72] Wisconsin v. Mitchell,
508 U.S. 476 (1993).

[73] Id.

[74] Id.

[75] Id.

[76] Id.

[77] Id.

[78] Dawson v. Delaware 503 U.S. 159
(1992) and Elaine A. Imbriani, FIRST AND FIFTH AMENDMENTS—THE FREEDOM TO
ASSOCIATE AND DUE PROCESS CLAUSE—A STATE MAY NOT INTRODUCE AT CAPITAL SENTENCING
EVIDENCE OF ASSOCIATIONAL PREFERENCES IF SUCH EVIDENCE PROVES NOTHING MORE THAN
MERE ABSTRACT BELIEFS—DAWSON v. DELAWARE, 112 S.CT. 1093 (1992), 3 Seton Hall
Const. L.J. 259, (1993).

[79] Dawson v. Delaware, 503
U.S. 159 (1992).

[80] Id.

[81] Id.

[82] Id.

[83] Id.

[84] Id.

[85] Id.

[86] Id.

[87] Id.

[88] Id.

[89] Id.

[90] Id.

[91] Id.

[92] Dawson v. Delaware, 503 U.S. 159
(1992) and Elaine A. Imbriani, FIRST AND FIFTH AMENDMENTS—THE FREEDOM TO
ASSOCIATE AND DUE PROCESS CLAUSE—A STATE MAY NOT INTRODUCE AT CAPITAL SENTENCING
EVIDENCE OF ASSOCIATIONAL PREFERENCES IF SUCH EVIDENCE PROVES NOTHING MORE THAN
MERE ABSTRACT BELIEFS—DAWSON v. DELAWARE, 112 S.CT. 1093 (1992), 3 Seton Hall
Const. L.J. 259, (1993).

[93] Dawson v. Delaware, 503
U.S. 159 (1992).

[94] Id.

[95] Id.

[96] Id.

[97] Id.

[98] Id.

[99] Id.

[100] Id.

[101] Id.

[102] Id.

[103] Id.

[104] Id.

[105] Id.

[106] Id.

[107] Id.

[108] Dawson v. Delaware, 503
U.S. 159 (1992) and Zant v. Stephens, 462 US 862 (1983).

[109] Dawson v. Delaware, 503
U.S. 159 (1992).

[110]Dawson v. Delaware, 503
U.S. 159 (1992) and Payne v. Tennessee, 501 US 808 (1991).

[111] Dawson v. Delaware, 503
U.S. 159 (1992).

[112] Barclay v. Florida, 463
US 939 (1983).

[113] United States v. Abel,
469 US 45 (1984).

[114] Dawson v. Delaware, 503
U.S. 159 (1992).

[115] Id.

[116] United States v.
Dunnaway, 88 F.3d 617 (8th Cir. 1996).

[117] Id.

[118] Id.

[119] Id.

[120] Id.

[121] Id.

[122] Id.

[123] Id.

[124] Id.

[125] Id.

[126] Id.

[127] Id.

[128] Jeannine Bell, Policing Hatred,
New York University Press, (2002). and Shirin Afsous, PROVING HATE: THE
DIFFICULTIES OF SUCCESSFULLY PROSECUTING BIAS-MOTIVATED CRIMES, 22 Suffolk J.
Trial & App. Advoc. 273, (2017-2017).

[129] Jaweed Kalem, ‘There’s a virus in
our country’: The ‘Trump effect’ and rise of hate groups, explained, LA Times,
(May 31, 2017 3:00 am).

[130] Id.

[131] Id.

[132] Id.

[133] ADL Hate Group Definition,
https://www.adl.org/education/resources/glossary-terms/hate-group.

[134] Id.

[135] Id.

[136] Issie Lapowsky, A Campus Murder
Tests Facebook Clicks as Evidence of Hate, Wired (May 23, 2017 3:56 pm).

[137] Id.

[138] Id.

[139] Id.

[140] Federal Rule of Evidence
609

[141] Federal Rule of Evidence
609

[142] Federal Rule of
Evidence 403

[143] Federal Rule of
Evidence 403

[144] Federal Rule of
Evidence 403 and Advisory Committee Notes

[145] Federal Rules of 104
and 403

[146] Federal Rule of
Evidence 403 and Advisory Committee Notes

[147] Federal Rule of
Evidence 413 and 414

[148] Federal Rule of
Evidence 413 and 414

[149] Federal Rules of
Evidence 413 and 414 and Advisory Committee Notes

[150] Federal Rules of
Evidence 413 and 414 and Advisory Committee Notes