NCJ Number
137137
Journal
Journal of Criminal Law and Criminology Volume: 82 Issue: 3 Dated: (Fall 1991) Pages: 659-689
Date Published
1991
Length
31 pages
Annotation
Current hate crime statutes require prosecutors to prove that the accused acted out of racist motives in committing a criminal act, and this burden has been extremely difficult for prosecutors to meet.
Abstract
Prosecutors have used a number of Federal and State statutes to deter violent, racist activities. Special hate crime statutes adopted by States during the past decade, however, are at the center of a continuing debate about the efficacy of official attempts to deter interracial violence. These statutes increase the criminal penalties for individuals who commit racial violence and allow the victims of such violence to collect civil damages from their persecutors. The statutes require the prosecution to prove that the accused assaulted, harassed, or intimidated another person because of that person's race, religion, or national origin. Commentators attribute the failure of State hate crime statutes to the onerous burden of proof of the perpetrator's racial motivation which the statutes require. The burden of proof severely limits the number of charges brought and convictions obtained under the statutes. Several commentators have proposed that States amend existing hate crime statutes to relieve the prosecution of the burden of proving the accused's motive. Specifically, they propose shifting the burden of proof on the issue of motive to the accused through the use of an affirmative defense of no racial motivation where the accused is white and the victim is a minority. While this proposal would undoubtedly enable prosecutors to obtain more hate crime convictions, it would also violate due process and equal protection clauses and subject persons influenced by unconscious racism to unwarranted convictions. Solutions to the problems experienced by current hate crime legislation lie in distinguishing racial animus and unconscious racism. 178 footnotes