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.

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[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