{"id":433,"date":"2019-04-01T15:38:19","date_gmt":"2019-04-01T15:38:19","guid":{"rendered":""},"modified":"2019-06-07T09:32:45","modified_gmt":"2019-06-07T09:32:45","slug":"hate-crime-legislation-in-the-us-8373","status":"publish","type":"post","link":"https:\/\/www.lawteacher.net\/free-law-essays\/criminal-law\/hate-crime-legislation-in-the-us-8373.php","title":{"rendered":"Contemporary Hate Crime Legislation in the US"},"content":{"rendered":"

Introduction<\/h2>\n
\n

\u201cThere\u2019s a virus in our country. A virus called \u2018hate.\u2019\u201d[1]<\/a><\/p>\n<\/blockquote>\n

These words rang
\nespecially true when white supremacists descended on Charlottesville, Virginia
\nin August of this year.[2]<\/a> On Friday August 11, more
\nthan 250, mostly young, white males began massing around Nameless Field, a
\nlarge stretch of grass behind the Memorial Gymnasium at the University of
\nVirginia.[3]<\/a> These men carried unlit
\ntorches, which were being filled with kerosene by workers at a nearby table.[4]<\/a> Within minutes, the marchers
\nlit their torches.[5]<\/a>
\nThey took off marching and immediately began yelling slogans, such as \u201cBlood
\nand soil,\u201d \u201cYou will not replace us,\u201d and \u201cJews will not replace us!\u201d[6]<\/a> That was how the Unite the
\nRight rally began. By the end of the weekend, violent clashes between the Unite
\nthe Right protestors and counter-protestors would result in the death of
\nHeather Heyer, a 32-year-old woman from Charlottesville who was there to protest
\nagainst the white supremacist rally.[7]<\/a><\/p>\n

Scenes like the one in Charlottesville are becoming increasingly common in this country.[8]<\/a> 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<\/a>, both during his campaign and his presidency.[9]<\/a> SLPC found that the most dramatic increase was the near-tripling of anti-Muslim hate groups.[10]<\/a> 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]<\/a> In addition to anti-Muslim groups<\/a>, this increase is being driven by an increase of anti\u00adimmigrant, anti\u00adLGBT, white nationalist, neo\u00adNazi, neo\u00adConfederate and black separatist organizations.[12]<\/a> Additionally, many alt-right hate groups are now on the rise.[13]<\/a><\/p>\n

The rise in hate groups
\nover the past two years has also been accompanied with the rise in hate crimes,
\nparticularly since the 2016 election.[14]<\/a> Using a combination of
\nnews reports and witness testimony, SLPC counted almost 900 incidents of hate
\nor bias in the ten days after the election.[15]<\/a> In the first month after
\nthe election, SLPC counted 1,094 incidents, and 1,863 between November 9 and
\nMarch 31.[16]<\/a><\/p>\n

While hate crimes are
\nnot a new phenomenon, the increase in the number and membership of hate groups
\nand of hate crimes is alarming. What is also alarming is the difficulty in
\nprosecuting reported hate crimes, partially because prosecuting a hate crime
\nrequires proof of the individual\u2019s motivation in committing this crime. This paper
\nseeks to set out the guidelines for a rule of evidence that would allow for the
\nintroduction of membership in a hate group into a hate crime trial to prove
\nmotivation while protecting the First Amendment and without unfairly
\nprejudicing the defendant. Part I of this paper examines the incidence of hate
\ncrimes in the U.S., Part II sets out the history of hate crimes legislation in
\nthis country, and Part III looks at some of the constitutional challenges to
\nhate crimes statutes and sentence enhancements, with particular emphasis on
\nfreedom of association. Lastly, Part IV sets out the guidelines for a clear rule
\nof evidence that would make a defendant\u2019s membership or participation with a
\nhate group admissible in criminal hate crime trial. <\/p>\n

Hate Crimes in the Unites States<\/h2>\n

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

Hate crimes have a
\nparticularly devastating effect on not just the victim, but the target
\ncommunity, and society as a whole.[22]<\/a> Because the victim in a
\nhate crime is selected based on a specific, immutable reason, such as that
\nperson\u2019s race, ethnicity, gender, or sexual orientation,<\/ins> the victim
\nmay suffer greater emotional and psychological damage.[23]<\/a> As a result, it is not
\nuncommon for a hate crime victim to experience withdrawal, depression, anxiety,
\nfeelings of helplessness, sleep disorders, loss of confidence, and an extreme
\nsense of isolation.[24]<\/a> Additionally, because the
\nvictim is attacked based on a personal characteristic, he or she can have a
\nheightened sense of vulnerability, which may cause victims to drastically alter
\ntheir attitudes and lifestyle in order to avoid future attacks.[25]<\/a> <\/p>\n

Hate crimes are likely
\nto have a more harmful effect on the target community than non-hate crimes do
\nas well.[26]<\/a>
\n\u201cIn this sense, hate crimes are seen as \u201c\u2018message crimes,\u2019 in effect, sending \u2018a
\nmessage that members of a certain group are not wanted in a particular neighborhood,
\ncommunity, workplace, or college campus.\u2019\u201d[27]<\/a> When the victim is attacked
\nbecause of an immutable characteristic, members of the target community view it
\n\u201cas an attack on themselves directly and individually.\u201d[28]<\/a> This can create a feeling
\namong the target community that any one of them could be a victim of a similar
\ncrime.[29]<\/a> Hate crimes can also
\nfoster distrust and tension among members of different groups and they can
\ncause members of affected groups to isolate themselves within the larger
\nsociety.[30]<\/a>\n<\/p>\n

History of Hate Crimes Legislation<\/h2>\n

During most of our country\u2019s history, hate crime legislation did not exist and federal hate crime legislation did not exist until the mid-twentieth century.[31]<\/a> 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]<\/a>  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]<\/a> The statute required prosecutors to allege a federal civil rights violation in order to get the enhanced penalty for a hate crime.[34]<\/a> 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]<\/a> By 1992, forty-six states and the District of Columbia had enacted hate crime statutes.[36]<\/a> <\/p>\n

However, state hate crime
\nlaws were equally as flawed, with problems of selective enforcement, under enforcement,
\nunderfunding, and lack of uniformity in their application.[37]<\/a> While almost all state
\nstatutes include hate crimes that are motivated by biases based on race,
\nethnicity, religion, and national origin, many leave out hate crimes that are motivated
\nby biases based on gender, sexual orientation, and disability.[38]<\/a> Four states (Arkansas,
\nIndiana, South Carolina, and Wyoming) lack hate crimes statutes entirely.[39]<\/a><\/p>\n

Heightened public
\nawareness of hate crimes and a renewed advocacy for federal regulations
\nresulted in the passage of three noteworthy federal laws in the early 1990s.
\nFirst, the Hate Crimes Statistics Act of 1990 was the first federal law to use
\nthe term \u201chate crime\u201d and it required the Attorney General to collect and
\npublish data on crimes that were motivated by bias. Next, the Violence Against
\nWomen Act of 1994 created a civil remedy for victims of crimes motivated by a
\nperson\u2019s gender.[40]<\/a>
\nFinally, the Hate Crimes Sentencing Enhancement Act of 1994 specified eight base
\ncrimes for which judges could impose an enhanced penalty if it was determined
\nbeyond a reasonable doubt that the crimes were in fact hate crimes.[41]<\/a> However, this legislation
\napplied only to federal crimes and crimes committed on federal property.[42]<\/a> While these early federal
\nlaws represented major progress, they did not provide sufficient legal recourse
\nfor most hate crime victims. However, the Matthew Shepard and James Byrd, Jr. Hate
\nCrimes Prevention Act of 2009 expanded the federal definition of hate crimes, enhanced
\nthe legal tools available to prosecutors, and increased the ability of federal
\nlaw enforcement to assist state and local enforcement partners.[43]<\/a><\/p>\n

Unfortunately, hate
\ncrimes are still difficult to prosecute. Prosecuting these types of crimes require
\nproving the offender’s bias or hate as the motivation for the crime.[44]<\/a> \u201cIn other words, the
\nstatutes require prosecutors to demonstrate the accused’s criminal conduct was
\nmotivated by racism.\u201d[45]<\/a> Not only must the
\nprosecutor prove bias, the prosecutor must show that the bias is what actually
\nmotivated the criminal conduct.[46]<\/a> Scholars have argued
\nthat, \u201cby incorporating such stringent proof of bias motivation into the
\nlanguage of hate crime statutes, prosecutors are unable to prosecute hate
\ncrimes effectively, except in \u2018the most egregious and clear cases of bias
\nmotivation.\u2019\u201d[47]<\/a>
\nObtaining reliable proof of the defendant’s motive can be an incredibly challenging
\nendeavor.[48]<\/a>
\nCurrently there is no standard definition of what counts as biased motivation
\nor what evidence can and should be used.[49]<\/a> This leads to the
\ndifficulty prosecutors have in obtaining convictions. <\/p>\n

Hate crime experts
\ngenerally agree that hate crime laws probably don\u2019t deter the commission of any
\ncrimes and there\u2019s no good research that answers this question definitively.[50]<\/a> Jeannine Bell, a scholar
\non hate crimes at Indiana University Maurer School of Law stated that
\nperpetrators don\u2019t \u201cthink about whether they\u2019re going to commit a hate crime,
\nlook to see whether there\u2019s a law that can be punished, and then don\u2019t commit
\nthe hate crime when they learn it could be punished.\u201d[51]<\/a> However, Professor Bell
\nand other experts believe that it doesn\u2019t matter if hate crime laws actually
\ndeter the commission of hate crimes.[52]<\/a><\/p>\n

Hate crime laws can do
\nfar more than just enhance the criminal penalties for committing the base level
\ncriminal act. Many hate crime statues devote funds to police departments\u2014so
\nthey can, for example, set up community liaisons who work closely with affected
\ncommunities to ensure they feel safe.[53]<\/a> Hate crimes statutes also
\nlabel these acts as a particularly serious type of crime, which can encourage
\nlaw enforcement to take the issue more seriously.[54]<\/a> \u201cBy making it a hate
\ncrime, you call attention to it in the minds of police [and] in the minds of
\nprosecutors,\u201d Professor Bell said.[55]<\/a> Additionally, most hate
\ncrimes are low-level crimes or misdemeanors that police and prosecutors may not
\npay attention to.[56]<\/a> However, once these low-level
\nacts are defined as hate crimes, they get more attention from law enforcement.[57]<\/a><\/p>\n

Furthermore, hate crime
\nlegislation allows groups that wouldn\u2019t normally feel safe with police officers
\nto come forward and it helps police officers to understand the effects of these
\ncrimes within those targeted groups.[58]<\/a> More broadly, hate crime
\nstatutes send societal signals that we as a community will not tolerate hate.[59]<\/a> Experts agree that hate
\ncrimes are message crimes against certain groups of people and that hate crime
\nlaws act as a counter-message to the prejudice that causes people to commit
\nthese crimes.[60]<\/a>
\n\u201cHate crime laws have important symbolic meaning\u2026hate crimes are message
\ncrimes\u2014that is, they send a message not only to the primary victim but to every
\nmember of this group.\u201d[61]<\/a> The message that a hate
\ncrime sends must be counteracted, and strong hate crime laws can do just that.[62]<\/a> Hate crimes laws send a
\nmessage to the perpetrator, informing him that society will not tolerate his
\nhate, and, they send a message to victims and potential victims that they are
\nwelcome in the community and that they will be protected.[63]<\/a><\/p>\n

Constitutional Challenges to Hate Crime Laws<\/h2>\n

Throughout their
\nexistence, hate crimes statutes have been subject to significant constitutional
\nchallenges for violating the First Amendment. <\/p>\n

Wisconsin v. Mitchell<\/h3>\n

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

However, the U.S.
\nSupreme Court unanimously reversed the Wisconsin Supreme Court and delivered a
\nsingle opinion holding the Wisconsin statute valid.[71]<\/a> First, the Court noted
\nthat physical assault is not, under any circumstances, \u201cexpressive conduct
\nprotected by the First Amendment.\u201d[72]<\/a> The Court additionally
\nnoted that sentencing judges have traditionally been allowed to consider a
\ndefendant’s motives when determining sentence and while a defendant’s general
\nbiases cannot be considered in setting the sentence, a specific bias held by
\nthe defendant is allowed to be considered.[73]<\/a> The Supreme Court found
\nthat the Wisconsin statute met this test.[74]<\/a> For example, the fact
\nthat a defendant is a white supremacist or Neo-Nazi is not relevant when
\ndetermining a sentence for general battery, but that evidence would be
\nincredibly relevant if the defendant’s victim is African-American and there is
\nevidence that shows that the crime was an expression of the defendant’s racist
\nbeliefs. <\/p>\n

The Court drew a
\ndistinction between the Minnesota ordinance at issue in R.A.V. v. City of
\nSt. Paul, which was directed at expression, and the Wisconsin statute,
\nwhich is directed at an individual\u2019s conduct.[75]<\/a> The Court held that
\nbias-motivated conduct may be punished more severely because it is \u201cthought to
\ninflict greater individual and societal harm.\u201d[76]<\/a> Finally, the Court
\nrejected the idea that the Wisconsin statute created a \u201cchilling\u201d effect on
\nFirst Amendment protected rights, finding that they \u201care left, then, with the
\nprospect of a citizen suppressing his bigoted beliefs for fear that evidence of
\nsuch beliefs will be introduced against him at trial if he commits a more
\nserious offense against person or property. This is simply too speculative a
\nhypothesis.  .  .  .\u201d[77]<\/a> With its ruling, the Supreme
\nCourt established that it was permissible to consider a person\u2019s speech and
\nbiases in a hate crime trial without violating the First Amendment. <\/p>\n

Dawson v. Delaware<\/h3>\n

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]<\/a> Using Kisner\u2019s car and the money he had taken from her home, Dawson drove south until the police apprehended him the following morning.[79]<\/a> 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]<\/a> This court also conducted a penalty hearing to determine whether Dawson should be sentenced to death for his first-degree murder conviction.[81]<\/a> 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]<\/a> <\/p>\n

Prior to trial, the prosecution conceded that the nature of the various chapters of the Aryan Brotherhood may differ, stating that \u201cthere are cells or specific off-shoots within various local jurisdictions that don’t see eye to eye or share a union, if you will.\u201d[83]<\/a> 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\u2019s evidence law.[84]<\/a> Additionally, the prosecution introduced evidence of Dawson’s tattoos, which indicated his ties to the prison gang and to satanic worship,[85]<\/a> and Dawson\u2019s long criminal history.[86]<\/a> Dawson submitted evidence of his familial ties and his good behavior during imprisonment as mitigating evidence.[87]<\/a> 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]<\/a> In accordance with this recommendation, the trial court sentenced Dawson to death.[89]<\/a><\/p>\n

On appeal, the Supreme
\nCourt of Delaware upheld Dawson’s death sentence and affirmed the trial court’s
\ndecision to admit the stipulation referring to the Aryan Brotherhood into
\nevidence.[90]<\/a>
\nThe Delaware Supreme Court determined that a finding of one aggravating factor
\njustified the admission of as much evidence on Dawson’s life as possible since
\nthe determination to impose a death sentence must be an individualized one.[91]<\/a> The state supreme court
\nupheld the admissibility of the Aryan Brotherhood evidence, finding that the evidence
\nadmitted at the sentencing hearing focused on Dawson’s character and did not appeal
\nto the jury’s \u201cprejudices concerning race, religion or political affiliation.\u201d[92]<\/a><\/p>\n

The United States
\nSupreme Court granted certiorari<\/em> to
\ndetermine whether the introduction of associational evidence at a capital
\nsentencing, where the evidence is not directly relevant to determining the
\nappropriate punishment, constitutes a violation of the First Amendment.[93]<\/a> Chief Justice Rehnquist,
\nwriting for the majority, joined by Justices Scalia, Blackmun, White, Stevens,
\nO’Connor, Kennedy and Souter, vacated Dawson’s death sentence and remanded the
\ncase back to the trial court for resentencing.[94]<\/a> The Supreme Court
\ndetermined that the admission of Dawson’s association with the Delaware Aryan
\nBrotherhood violated his right to freedom of association pursuant to the First
\nand Fourteenth Amendments, since such evidence was not relevant to any issues
\ndecided during the sentencing phase.[95]<\/a> The Court explained that
\nthe evidence presented was not relevant to prove an aggravating factor because
\nthe evidence had no bearing on the circumstances of the crime Dawson committed
\nand that it merely demonstrated Dawson\u2019s abstract beliefs.[96]<\/a> Using this line of
\nreasoning, the Court further held that such associational evidence may not be
\nemployed to rebut any mitigating evidence presented by the defendant.[97]<\/a> Therefore, for
\nprosecution to demonstrate a defendant’s \u201cbad character\u201d through rebuttal, the
\nState must show more than mere affiliation.[98]<\/a> <\/p>\n

In rejecting the state’s
\njustification of the prosecutor’s statements regarding Dawson’s affiliation
\nwith the Aryan Brotherhood to rebut the defendant’s mitigating evidence, the
\nCourt emphasized that while the State has the right to rebut any mitigating
\nevidence presented by the defendant and to offer its aggravating factors, the
\nState cannot do so where the evidence simply proves the abstract beliefs of an
\norganization to which the defendant belongs.[99]<\/a> Chief Justice Rehnquist concluded
\nthat the evidence presented by prosecution reflected only the gang’s abstract beliefs
\nand, without more specific findings of the defendant\u2019s beliefs, could not be viewed
\nas an aggravating factor.[100]<\/a> Consequently, the Court determined
\nthat the state violated the First Amendment by introducing evidence of the
\nabstract beliefs of the Aryan Brotherhood to rebut the mitigating good
\ncharacter evidence presented by Dawson.[101]<\/a> <\/p>\n

Furthermore, the Court stated
\nthat even if the Delaware Aryan Brotherhood chapter was racist, both Dawson and
\nthe murder victim were white, and therefore, the elements of racial hatred that
\nwere present in Barclay\u2014where the Court found that associational evidence was
\nadmissible\u2014were not present in this case.[102]<\/a> In an earlier case, the
\nCourt found that a capital defendant’s membership in an organization that
\nadvocated the killing of any particular group of people could be relevant to
\ndetermining the defendant’s dangerousness in the future.[103]<\/a> However, the Court
\nexplained that the prosecution in this case failed to show the defendant’s
\nmembership in the Aryan Brotherhood was relevant with respect to future
\ndangerousness.[104]<\/a> The Court also found
\nthat the effect of the admission of Dawson\u2019s association with the Aryan
\nBrotherhood invited the sentencing jury to draw the adverse inference that the
\ndefendant’s abstract beliefs proved his future dangerousness.[105]<\/a> Such an inference, the
\nCourt determined, constituted a violation of Dawson’s right to freedom of
\nassociation under the First Amendment.[106]<\/a><\/p>\n

However, the Supreme Court
\nrejected Dawson’s argument that the Constitution established a per se<\/em> barrier to the admission of First
\nAmendment-protected conduct into evidence as an aggravating factor.[107]<\/a> In doing this, the Court
\nbacked away from its position in Zant v. Stephens which held an aggravating
\nfactor was invalid if \u201cit authorized a jury to draw adverse inferences from conduct
\nthat is constitutionally protected,\u201d finding that this language was too broad[108]<\/a> The Court determined that
\nits recent holding in Payne v. Tennessee was more appropriate rule.[109]<\/a> In Payne, the
\nCourt permitted the factfinder to consider a wide range of material during the
\nsentencing phase so as long as the evidence was directly relevant to the crime
\nthat was committed.[110]<\/a> <\/p>\n

In setting out its
\ndecision, the Court discussed two earlier cases where the Court allowed
\nprotected First Amendment conduct to be used against the defendant during
\ntrial.[111]<\/a>
\nIn Barclay v. Florida, the Court found that a sentencing judge could
\nconsider racial hatred as an aggravating factor because the defendant’s racist
\nbeliefs and membership in a hate group influenced him to commit the crime in
\nhopes of starting a race war.[112]<\/a> In United States v.
\nAbel, the Court permitted the state to show bias to impeach a defense
\nwitness with evidence that because both the witness and the defendant were
\nmembers of the Aryan Brotherhood they were sworn to lie for each other to cover
\nup crimes.[113]<\/a>
\nThe Court noted that in both Barclay and Abel, the defendant’s association with
\nknown hate groups was directly relevant to the issue being decided at trial.[114]<\/a> Therefore, the Supreme
\nCourt found that there is no per se <\/em>barrier
\nto the admission of evidence at trial or sentencing, if the conduct played a
\nrole in or influenced the defendant’s actions.[115]<\/a> <\/p>\n

While the Supreme Court
\ndid conclude that Dawson\u2019s membership in the Aryan Brotherhood was not
\nadmissible at his sentencing, the Court\u2019s determination that there is not a per se<\/em> barrier to First
\nAmendment-protected conduct being introduced at trial was an incredibly
\nimportant ruling. This is particularly the case for trials involving alleged
\nhate crimes. Because a defendant\u2019s motivation for committing the crime must be
\nproven in a hate crime trial, the defendant\u2019s associations with a hate group is
\nan extremely relevant factor at trial. This ruling gives prosecutors more tools
\nwhen prosecuting these crimes. <\/p>\n

Operation in the Lower Courts: United
\nStates v. Dunnaway <\/h3>\n

In United States v.
\nDunnaway, two years after the Supreme Court decided Dawson, the defendants James
\nAustin Dunnaway, Jeffrey Colin Van Cleave, Matthew David Cannon, and two other
\nwhite men left a party with the intent to assault any African-American man they
\ncould find.[116]<\/a>
\nAfter leaving the party, the defendants found an African-American man sitting
\nin a public park talking with his wife, who was white.[117]<\/a> The defendants began
\nattacking the man, repeatedly kicking him in the head and his body.[118]<\/a> During the attack, one
\nof the attackers identified himself as a “skinhead” and used a racial
\nslur.[119]<\/a>
\nAs a result of the vicious assault, the victim suffered multiple injuries,
\nincluding a boot imprint on his forehead that remained for several days after
\nthe attack.[120]<\/a>
\nFollowing the attack, the defendants returned to the party and reported they
\nhad beaten a black man because he had been sitting in a park with a white
\nwoman.[121]<\/a>\n<\/p>\n

Following the
\ndefendants\u2019 arrest, Dunnaway and Van Cleave pleaded guilty to interference with
\na person’s enjoyment of a public facility because of the person’s race pursuant
\nto 18 U.S.C. \u00a7 245(b)(2)(B).[122]<\/a> At trial, a jury found
\nCannon guilty of the same charge and they also found him guilty of conspiracy
\nto commit a federal offense.[123]<\/a> Cannon went on to appeal
\nhis conviction, challenging the admission of the evidence of his membership in
\na skinhead group and that he held racist views.[124]<\/a> However, the appellate
\ncourt found that because the crime in this case involved elements of racial
\nhatred, the evidence showed more than the defendant\u2019s bad character.[125]<\/a> Additionally, the
\ntestimony was relevant to identify the victim\u2019s attackers.[126]<\/a> Finally, the evidence of
\nthe defendant\u2019s racial views and his association with \u201cskinheads\u201d was relevant
\nto his discriminatory purpose and intent, which was an element of the charges
\nagainst him.[127]<\/a><\/p>\n

Guidelines for a Rule of Evidence Dealing with Hate Group Membership and a Potential Evidence Rule<\/h3>\n

Despite the cases outlined above allowing a defendant\u2019s 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]<\/a> 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. <\/p>\n

What groups should be considered
\nhate groups?<\/h4>\n

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]<\/a> The Southern Poverty Law Center\u2019s (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]<\/a> Under SPLC\u2019s definition the propensity for violence is not a criterion for being listed as a hate group.[131]<\/a> Because of this, groups that don\u2019t 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]<\/a> 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.<\/p>\n

Another helpful definition comes from the Anti-Defamation League (ADL). ADL defines a hate group as an \u201corganization 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.\u201d[133]<\/a> 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]<\/a> The group itself must have some \u201chate-based orientation or purpose.\u201d[135]<\/a> 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. <\/p>\n

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. <\/p>\n

Another possible method
\nwould be to let the prosecutor demonstrate by evidence\u2014such as the purposes and
\ngoals of the group, the group\u2019s rhetoric concerning certain vulnerable
\ncommunities, and the actions that the group has engaged in\u2014in each individual
\ncase. The prosecutor could demonstrate that whatever group the defendant
\nbelonged to was advocating hatred as part of its message, which would qualify
\nit as a hate group. This method would avoid pre-judging or permanently labeling
\na particular group, which could be more problematic when it comes to the First
\nAmendment. Additionally, this method avoids the problem of labeling an entire
\ngroup when sub-groups of the larger organization may hold more hateful and
\nprejudicial beliefs that the larger organization would not hold. This
\ncase-by-case approach could be incorporated into the evidence rule. The new
\nrule could mandate that the prosecutor show by preponderance of the evidence or
\nclear and convincing evidence that the group the defendant belonged to was in
\nfact a hate group. If the judge then determines that the group is a hate group,
\nthen the rest of potential rule would apply, subject to other limitations
\ndescribed below. <\/p>\n

How extensive must membership be?<\/p>\n

            Another
\nimportant consideration is how extensive should an individual\u2019s membership with
\na hate group be? This is an important question to answer because this rule
\nwould not be intended to broadly sweep in all of a defendant\u2019s conduct or
\nassociations. <\/p>\n

One recent case shows
\njust how problematic this question can be. In May 2017 Sean Urbanski, a
\n22-year-old University of Maryland student, walked up to 23-year-old Richard
\nCollins III, a US Army lieutenant, and fatally stabbed him at a campus bus
\nstop.[136]<\/a>
\nWhile investigators still don\u2019t know what motivated the murder, they do that
\nthat Collins, who was visiting a friend at the university and did not appear to
\nknow Urbanski, was black, and that Urbanski belonged to a Facebook group called
\nAlt-Reich: Nation, a white supremacist group.[137]<\/a> According to
\ninvestigators, the Facebook group showed “extreme bias against women,
\nLatinos, members of the Jewish faith, and especially African Americans.”[138]<\/a> Digital footprints have
\nbecome crucial pieces of evidence for investigators in this new age of social
\nmedia, but they’ve also presented new and complicated challenges to the legal
\nsystem.[139]<\/a>
\nSocial media presence is forcing courts to grapple with new questions about the
\nsignificance of a Facebook post, a “Like,” a follow, or a tweet. In
\nUrbanski’s case, the court, will have to carefully decide how much weight to
\nput on a person’s online affiliations and whether merely liking a hateful
\nonline group would constitute evidence of membership in the group of intent to
\ncommit a hate crime.<\/p>\n

While a bright line rule
\nwould provide the most clarity, it would not be the best approach. Instead the
\nrule could enumerate a list of actions that would suggest involvement that meets
\nthe threshold of being an active member. If that is the approach, the rule
\nshould include language that states the actions listed are not the only actions
\nthat would be enough to show actual membership in the hate group. Some of the
\nactions that could be listed would be donating to the organization, paying
\nmembership dues, holding leadership positions in the organization, or
\nparticipating in activities such as meetings and rallies. When it comes to
\nsocial media affiliations, a single \u201clike\u201d or post on a hate group\u2019s page would
\nnot be enough to show membership. However, extensive interaction and engagement
\nwith the group online could go toward a showing of membership. <\/p>\n

Another method would be
\nto require the prosecutor to make a showing of membership in that specific
\ncase. The judge would then make the final determination of whether or not the
\ndefendant\u2019s actions constitute membership in that group. This method could
\nprove useful because it would allow individual determinations on a case-by-case
\nbasis and it would avoid having to list out in a rule what does and does not
\nconstitute membership in a group. <\/p>\n

Should membership be recent?<\/p>\n

            Additionally,
\nhate group membership should be recent. Allowing this rule to reach back in
\ntime and allow a defendant\u2019s membership in a hate group from many years ago
\ncould prove to be unfairly prejudicial to the defendant. This rule should
\nrecognize an individual\u2019s capacity to change for the better and to realize the
\nwrongfulness of one\u2019s hateful beliefs.<\/p>\n

            The
\ndifficulty is determining a time cutoff for membership. A helpful starting
\npoint would be Federal Rule of Evidence 609, which allows for prior convictions
\nto come in to impeach a witness\u2019s character for truthfulness.[140]<\/a> This rule places special
\nconsiderations and restrictions for convictions that are more than ten years
\nold.[141]<\/a> Adopting a recentness
\nrequirement for hate group membership would provide protections to the
\ndefendant and it would help to ensure that defendants are not being punished
\nfor beliefs that the defendant may no longer hold. <\/p>\n

Federal Rule of Evidence 403
\nConsiderations<\/p>\n

            Rule
\n403 is commonly known as the “unfair prejudice” rule.[142]<\/a> This rule states that
\nrelevant evidence may be excluded if its probative value is substantially
\noutweighed by any of three effects that detract from a fair trial: unfair
\nprejudice, confusing the issues or misleading the jury, or causing undue delay,
\nwasting time, or needlessly presenting cumulative evidence.[143]<\/a><\/p>\n

In order for relevant evidence to \u201csubstantially\u201d
\noutweigh probative value, the probative value must be small, i.e., being of
\nlittle or no relevance to begin with.[144]<\/a> For example, you cannot
\nexclude evidence that a child was molested as unfairly prejudicial if the
\ndefendant is on trial for that very act. Likewise, it would not be unfairly
\nprejudicial to call five witnesses to the stand to describe the same thing if
\nthey are describing the event itself.<\/p>\n

Determining
\n“probative value” is at the discretion of the judge.[145]<\/a> In general, it is
\ndetermined by factors, such as: how logically related is the evidence to the
\nkey disputes, how important is the issue to the resolution of the case, how
\nnecessary is the evidence (i.e., how much other evidence with lower prejudicial
\neffect has already been introduced or will be introduced), and remoteness (how
\nfar removed in space and time from the people, places, and events<\/p>\n

being litigated).[146]<\/a><\/p>\n

            There
\nare exceptions to Rule 403. The Federal Rules of Evidence set out two
\nrules\u2014rules 413 and 414\u2014that allow evidence to be admitted that, most likely,
\nwould be considered unfairly prejudicial absent these rules.[147]<\/a> Rule 413 allows a
\ndefendant\u2019s past sexual assaults to be admitted in a trial for sexual assault
\nand rule 414 allows a defendant\u2019s past child molestations to come in at trial
\nfor child molestation.[148]<\/a> These rules were adopted
\nin part due to the difficulty in prosecuting crimes of sexual assault and child
\nmolestation.[149]<\/a>
\nDespite the good intentions of these rules, they have faced significant
\ncriticism for being too prejudicial toward defendants.[150]<\/a> An evidence rule that
\nwould allow admission of a defendant\u2019s membership in a hate group would operate
\nin a similar fashion to rules 413 and 414. However, in consideration of the
\nsignificant criticisms of those rules, it would need to contain the specific
\nlimitations described above. <\/p>\n

Potential Rule<\/p>\n

            A
\npossible rule could read as follows:<\/p>\n

Rule X. Evidence
\nof Membership in a Hate Group in Hate Crimes Cases<\/strong><\/p>\n