III. U.S. LAW AND INTERNATIONAL HUMAN RIGHTS STANDARDS
The violent acts against Arabs and Muslims after September 11 violate U.S. criminal law regardless of their motivation. U.S. officials recognize their responsibility to prevent, investigate, and prosecute crime in general and to ensure that all U.S. residents, without regard to their race, national origin, or religion, are protected. While flaws exist with the U.S. system of law enforcement and criminal justice, no one doubts that all levels of the U.S. government-federal, state, and local-take crime control seriously.
Hate crimes are a uniquely important and socially devastating kind of crime, however, that warrant enhanced public attention and action. What distinguishes a bias or hate crime1 from others is not the act itself-e.g. murder or assault-but the racial, ethnic, religious, gender, or sexual orientation animus that propels its commission. While typically directed at a particular individual-often randomly chosen-hate crimes are motivated by anger toward an entire community distinguished by specific shared characteristics. While the bias that motivates a hate crime may be unusual in its ferocity, it is rooted in a wider public climate of discrimination, fear, and intolerance against targeted communities, which may also be echoed in or enhanced by public policy. U.S. law as well as international human rights law single out hate crimes for particular attention precisely because of their broad social impact and their roots in discrimination and intolerance.
Hate Crimes Legislation
The first law uniquely criminalizing bias-motivated conduct in the United States was the federal hate crimes statute.2 Originally created to protect civil rights workers in the 1960s, the law criminalizes bias-motivated conduct where the perpetrator attempts to stop the victim from engaging in one of six designated activities: (1) enrolling in or attending a public school; (2) participating in a service or facility provided by a state; (3) engaging in employment by any private or state employer; (4) serving as a juror; (5) traveling in or using a facility of interstate commerce; and (6) enjoying the services of certain public establishments. The federal hate crimes law only addresses racial, ethnic, national origin, or religious bias and does not protect persons who are attacked because of their gender or sexual orientation.
The limited scope of the federal hate crimes law and the continuing problem of bias-motivated crime led to the creation of broader state hate crime laws during the 1980s and 1990s. All but five of the fifty U.S. states now have hate crimes legislation.3 Supporters of hate crimes legislation marshaled a number of arguments to support such laws, including: (1) Because hate crimes cause additional harms over and above the injury caused by crimes not motivated by hate, their unique nature should be recognized in the criminal law and receive greater punishment. For example, a swastika scrawled on a synagogue offends the entire Jewish community, not just the congregants of the affected temple; (2) Legislative recognition of bias-motivated crime encourages increased efforts by public officials to prevent, investigate, and prosecute such crimes; and (3) Hate crimes legislation is an important public affirmation of societal values against bias as well as bias-motivated violence, reinforcing society's commitment to equality among residents.
State hate crime laws typically either make a bias-motivated criminal act a distinct crime or enhance the punishment during sentencing for a crime shown to be motivated by bias.4 At present, all state hate crime laws include crimes motivated by racial, religious, or ethnic animus. Twenty-six states include crimes motivated by animus against sexual orientation in their hate crime laws,5 and twenty-four states include crimes motivated by gender animus.6
In addition to the federal hate crimes law, the U.S. Congress passed the Hate Crimes Statistics Act (HCSA) in 1990.7 HCSA requires the U.S. Department of Justice to acquire data from law enforcement agencies across the country on crimes that "manifest prejudice based on race, religion, sexual orientation, or ethnicity" and to publish an annual summary of the findings. In 1996, Congress enacted the Church Arson Prevention Act of 1996.8 The act criminalizes any intentional destruction, defacement or damage to religious property "because of the religious character" of the property.9 The Act also criminalizes acts that interfere "with the enjoyment" of a person's "free exercise of religious beliefs."10
State and Local Agencies Responsible for Addressing Hate Crimes
Local police are the front line in preventing and investigating hate crimes. The mandate of most police forces is similar to that contained in the New York City Charter: "the police department and force shall have the power and it shall be their duty to preserve the public peace, prevent crime, detect and arrest offenders, suppress riots, mobs and insurrections... protect the rights of persons and property... and for these purposes to arrest all person guilty of violating any law or ordinance...."12 Police departments are also another source of statistics on hate crimes.
County prosecutors are primarily responsible for prosecuting crimes covered by state legislation, including hate crimes. In some counties, county officials have created specialized hate crime prosecution units staffed by prosecutors who receive specialized hate crime prosecution training.
Hate crimes also often fall within the mandate of local and state civil rights agencies. In recent years, some cities and states have created agencies that specifically address bias-motivated crime. For example, the California Civil Rights Commission on Hate Crimes, created in 1998, advises California's attorney general on methods to improve hate crime prevention, tolerance and appreciation for diversity, law enforcement training, and the monitoring and suppression of organized, extremist groups. Similarly, the Michigan Alliance Against Hate Crimes is a statewide coalition of federal, state, and local law enforcement agencies, civil rights organizations, and community-based groups who meet periodically to exchange ideas on ensuring that responses to hate crimes are complete and effective. In addition, a few entities have been created with a specific focus on issues affecting the Arab and Muslim communities. For example, the Chicago mayor's office has an Advisory Council on Arab Affairs which provides guidance and direction on issues affecting the Arab community in Chicago, including hate crimes.
Federal Agencies Responsible for Addressing Hate Crimes
The Civil Rights Division of the U.S. Department of Justice is charged with enforcing and prosecuting federal hate crimes laws. Federal hate crimes prosecutions under 18 U.S. Code Section 245, the federal hate crimes statute, are relatively few in number, however, both because of the narrow scope of the federal hate crimes law and because of federal reluctance to preempt or disrupt local prosecutions. The Department of Justice does, however, define certain prosecutions that use statutes other than Section 245, such as conspiracy against rights (Section 241) or interference with housing rights (42 U.S Code Section 3631), as hate crimes. According to the Department of Justice, from Fiscal Years 1998 to 2001, the average number of prosecutions was 28.513
Numerous federal agencies assist in addressing bias-motivated violence. Established by the 1964 Civil Rights Act, the Community Relations Service (CRS), an agency within the U.S. Department of Justice, assists communities in addressing inter-group disputes. CRS mediators, working with police officials and civil rights organizations, have often acted to defuse community tensions that might otherwise escalate into racial or ethnic violence. CRS also has played a leading role in the implementation of the HCSA, organizing HCSA training sessions for law enforcement officials from dozens of police agencies across the country.
Also established by the 1964 Civil Rights Act, the U.S. Commission on Civil Rights (UCCR) holds hearings and briefings on race relations and hate violence. It presents its findings on civil rights issues, such as hate violence, in reports submitted to the U.S. Congress and relevant federal agencies. UCCR has branch offices in each of the fifty states in the United States.
The Federal Bureau of Investigation (FBI) is the primary domestic law enforcement agency of the federal government. It conducts investigations into crimes covered by federal hate crimes legislation and can assist local police with hate crime investigations. The results of its investigations are used by the Civil Rights Division and the United States attorneys to initiate federal hate crime prosecution. In conjunction with CRS, the FBI also trains local law enforcement agencies in federal standards of data collection contained in the HCSA and publishes hate crime data collection guidelines for local police agencies.
The Bureau of Justice Statistics (BJS), an office within the U.S. Department of Justice, collects, analyzes, publishes, and disseminates information on crime, including hate crimes, criminal offenders, victims of crime, and the operation of justice systems at all levels of government. BJS is responsible for publishing an annual nationwide hate crimes report that provides the most comprehensive national statistical overview of hate crimes.
The Bureau of Justice Assistance (BJA), another arm of the Justice Department, provides grants to support local police and government agency efforts to build safe communities. BJA has funded numerous local initiatives to prevent and address hate crimes.
CERD requires governments to punish by law all acts of violence motivated by racial, ethnic, or national origin animus. Specifically, CERD article 4(a) obliges governments to declare "all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin" as offenses punishable by law.16 Nevertheless, a question remains under international law of whether bias-motivated violence must be penalized by special legislation or whether it can simply be punished through ordinary criminal laws. Some countries have adopted the position that bias-motivated violence must be uniquely criminalized through the creation of hate crimes legislation.17 The plain text of CERD, however, is silent on this question. It simply calls for bias-motivated violence to be punished without prescribing a means for doing so.18
The Programme of Action of the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, published on January 25, 2002, did not call on governments to pass specific hate crime laws. Instead, it recommended that bias motivation be considered by judges during sentencing as an aggravating factor. In particular, the report urged governments to: "take measures so that such motivations are considered an aggravating factor for the purposes of sentencing, to prevent these crimes from going unpunished and to ensure the rule of law." 19
· establishing working groups of community leaders and national and local law enforcement officials to coordinate efforts to address bias motivated violence;20
· enhancing data collection on bias-motivated violence; 21
· ensuring that civil rights laws prohibiting bias-motivated violence are rigorously enforced; 22
· training law enforcement on how to investigate bias motivated crimes;23
· developing educational materials to teach young persons the importance of tolerance and respect;24 and
· recognizing the need of all states parties to CERD to counter the present rise of "anti-Arabism and Islamophobia world-wide."25
Many of these measures are discussed below in our assessment of the government response to September 11-related hate crimes in the United States.
1 We use the terms bias-motivated crime and hate crime interchangeably in this report.
3 The states that do not have a law uniquely punishing bias motivated crimes or enhancing punishment for bias-motivated crimes are: South Carolina, Indiana, Arkansas, New Mexico, and Wyoming. See, Anti-Defamation League, "State Hate Crime Statutory Provisions," retrieved on September 10, 2002, from http://www.adl.org/99hatecrime/intro.html.
4 For example, Washington State makes bias motivated crime a distinct crime called "malicious harassment." See, § 9A.36.080, Revised Code of Washington (2001). Arizona state law, on the other hand, calls for an enhanced penalty during sentencing where the prosecutor can demonstrate that a criminal act was motivated by bias. See § 13-702, Arizona Revised Statutes (2001). The model for most state legislation enhancing penalties was developed in 1981 by the Anti-Defamation League (ADL), a Jewish civil rights organization. The ADL's model hate crimes legislation, however, also required hate crime data collection and police hate crimes investigatory training, features which are not typically included in state hate crime laws. Lu-in Wang, Recognizing Opportunistic Bias Crimes, 80 B.U.L. Rev. 1399, 1411 (December 2000).
5 See Human Rights Campaign, "Does Your State's Hate Crimes Law Include Sexual Orientation and Gender Identity?" retrieved on September 19, 2002, from http://www.hrc.org/issues/hate_crimes/background/statelaws.asp.
6 See Anti-Defamation League, "State Hate Crime Statutory Provisions," retrieved on September 10, 2002, from http://www.adl.org/99hatecrime/intro.html.
11 Human Rights Watch telephone interview with Ralph Boyd, assistant attorney general for civil rights, United States Department of Justice, August 25, 2002.
12 New York City Charter § 435 (2001).
13 Fiscal Years run from October 1 to September 30. Fiscal Year 2001 prosecutions related to 9-11 backlash consider only the first few weeks following the attacks. According to an interview on July 23, 2003 with a staff member of the Criminal Section of the Civil Rights Division, only one September 11-related hate crime prosecution is included in the FY2001 data. U.S. Department of Justice, "Fiscal Year 2000 Performance Report and Fiscal Year 2002 Performance Plan: Appendix A," April 1, 2001 [online] http://www.usdoj.gov:80/ag/annualreports/pr2000/AppAFY2000disc.htm (retrieved July 22, 2003). and Human Rights Watch telephone interview with a staff member of the Criminal Section of the Civil Rights Division, Washington DC, July 23, 2003.
14 International Covenant on Civil and Political Rights (ICCPR), article 26; International Convention on the Elimination of All Forms of Racial Discrimination (CERD), article 2(1).
15 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, article 4, General Assembly resolution 36/55, November 25, 1981.
16 The Committee on the Elimination of Racial Discrimination, a treaty monitoring committee created pursuant to CERD, similarly calls on states parties to penalize "acts of violence against any race or group of persons of another colour or ethnic origin. Committee on the Elimination of Racial Discrimination, "General Recommendation XV," paras. 3 and 4, retrieved on September 19, 2002, from http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/e51277010496eb2cc12563ee004b9768?Opendocument.
17 The Canadian Department of Justice (CDOC) concluded that "the creation of special criminal legislation to combat hate-motivated violence more forthrightly satisfies Canada's obligations under international law." Glenn A. Gilmour, Hate-Motivated Violence, Canadian Department of Justice, WD1994-6e (1994), retrieved on September 19, 2002, from http://canada.justice.gc.ca/en/dept/pub/hmv/hate_42.html. The Law Reform Commission of Australia, citing Article 4(a) also concluded CERD requires the creation of specific hate crimes legislation, The Law Reform Commission of Australia, Multiculturalism and the Law, p. 153, 155, Report 57 (1992) retrieved on September 19, 2002, from http://www.austlii.edu.au/au/other/alrc/publications/reports/57.
19 Report of the World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance, Programme of Action (WCAR Report), para. 84, retrieved on September 19, 2002, from http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/A.Conf.189.12.En?Opendocument.
20 WCAR Report, Programme of Action, para. 74(b).