Policing Hatred

Law Enforcement, Civil Rights, and Hate Crime

Jeannine Bell

• Publisher: NYU Press
• Year: 2002
• ISBN:
  9781479828364
• Topic: Law
• Subtopic: Civil Rights in Law
• Index: Law

Policing Hatred explores the intersection of race and law enforcement in the controversial area of hate crime. The nation's attention has recently been focused on high-profile hate crimes such as the dragging death of James Byrd and the torture-murder of Matthew Shepard. This book calls attention to the thousands of other individuals who each year are attacked because of their race, religion, or sexual orientation. The study of hate crimes challenges common assumptions regarding perpetrators and victims: most of the accused tend to be white, while most of their victims are not.

Policing Hatred is an in-depth ethnographic study of how hate crime law works in practice, from the perspective of those enforcing it. It examines the ways in which the police handle bias crimes, and the social impact of those efforts. Bell exposes the power that law enforcement personnel have to influence the social environment by showing how they determine whether an incident will be charged as a bias crime.

Drawing on her unprecedented access to a police hate crime unit, Bell's work brings to life the stories of female, Black, Latino, and Asian American detectives, in addition to those of their white male counterparts. Policing Hatred also explores the impact of victim's identity on each officers handling of bias crimes and addresses how the police treat defendants' First Amendment rights. Bell's vivid evidence from the field argues persuasively for the need to have the police diligently address even low-level offenses, such as vandalism, given their devastating cumulative effects on society.

1
Introduction

The brutal killing in Texas of James Byrd, a Black man, brought hate crimes to the fore of the public agenda in the late 1990s. In early June of 1998 three White men chained Byrd behind a truck and dragged him to death. Byrd’s killing was widely recognized as a “hate” or bias crime. A bias crime is one motivated by prejudice toward one of the victim’s characteristics, such as race, color, ethnicity, religion, or sexual orientation, and the perpetrator of the crime usually does not share that characteristic with the victim.¹ In the wake of Byrd’s murder, many activists called for passage of stronger hate crimes legislation.

Another incident, though far less publicized, occurred the year before Byrd’s murder. The episode began early in the morning of July 24, 1997, in Elk Creek, Virginia, at an informal gathering at which Louie J. Ceparano, Garnett Paul “G.P.” Johnson, two other men, and a woman were drinking. Ceparano pinned down Johnson on his back and one of the others heard him say as he stood over him, “We’re going to take G.P. out there and put him on that white cross and burn him.” Ceparano snapped the watch off Johnson’s wrist, remarking, “You won’t need the watch where you’re going, they’ve got their own time down there.” Ceparano and another White man then dragged Johnson outside, doused him with gasoline, and set him afire. One of the White men then moved Johnson’s body to a nearby sandy ridge and beheaded it. The accused killers were White; the victim, Black. One witness remembered Ceparano calling Johnson a “nigger” during the party.²

When news of G. P. Johnson’s death spread to the rest of the country, many believed that the difference in race between the victim and the perpetrators, the use of racial slurs prior to the crime, and the brutality of the murder marked the crime as a potential hate crime. Yet Johnson’s death was not prosecuted under Virginia’s hate crime statute. The Grayson County sheriff responsible for investigating the crime concluded that because of the relationship between the two men—Johnson and Ceparano were said to have been friends—the evidence did not point to race as the cause of the crime.³ Police officers’ exercise of this type of discretion—the power to determine what is and is not a hate crime—is the focus of this book.

The Power of Police Officers in Hate Crime Cases

Abstract discussions of speech rights and nonempirical discussions of the efficacy of hate crime laws have dominated the debate over hate crime. Up until this point, scholars have ignored the extraordinary power of police to classify incidents as particular types of crimes. Police officers have the power to decide whether, and in which circumstances, the criminal law will be used. In the vast majority of possible bias crimes that are committed each year, a decision by police not to invoke the law determines to a great extent that the incident will not be pursued as a hate crime. Advocates and politicians who push for stronger hate crime legislation in the wake of gruesome bias-motivated crimes often fail to recognize and account for this broad police discretion. As one scholar has put it, “[P]olice decisions not to invoke the criminal process largely determine the outer limits of law enforcement.”⁴

Police decisions and the criteria officers use to make them are crucial for the administration of the criminal law, and ultimately, for justice. To grant police, the first gatekeepers in the criminal justice system, the power to set the limits of law enforcement is to allow their decisions to limit the options available to all of those—like prosecutors, judges, juries, probation officers, and parole boards—who exercise their discretion downstream in the system. Control over the initial classification of incidents also means that police wield the power, often unreviewed by others in the criminal justice system, to determine those situations in which the law will be applied.

Deciding how and under which circumstances to apply any law is fraught with difficulty. This book does what scholarly treatments of hate crime law have not done up to this point. It analyzes in depth how hate crime law works in a large city, based on extensive interviews with those who must enforce hate crime law. For several months, I was a participant observer of a specialized hate crime unit in a metropolitan city and enjoyed access to detectives, their case files spanning two decades, and most of their records.

Before this research, anecdotal evidence from other cities suggested reluctance by police to enforce hate crime law.⁵ Police may resist activists’ and community leaders’ calls for hate crime charges because they find hate crimes ambiguous or are uncertain about what may constitute evidence of motivation.⁶ There is a disincentive for police to identify crimes as bias-motivated. Large numbers of hate crimes can lead to media reports that a city is not racially tolerant and detract from its image.⁷ The publicity that such cases draw and the marker of racial intolerance that comes with identifying hate crime create a reason for police and other local officials to deny such events happen in their city or town.⁸

If we care about whether hate crime law works, we must understand the nature of police discretion. Street-level enforcers of these laws can effectively nullify hate crime statutes through nonenforcement, thereby reducing the statutes to an empty symbolic gesture.⁹ This raises a number of concerns: If the police do not enforce hate crime laws, why not? Can we assume that police officers refuse to enforce bias crime legislation because statutory ambiguity leads them to think that it is “feelgood” lawmaking that legislators do not really want enforced? Is police nonenforcement localized and geared to certain situations (e.g., cases involving violence against Asian Americans) that they believe are less of a problem in order to conserve scarce resources?¹⁰ Does victims’ reluctance to prosecute play a role in the nonenforcement of hate crime legislation? Finally, do police practice nonenforcement, as existing research would lead one to assume, because they do not really think these actions are crimes? If any of these questions can be answered affirmatively, as earlier studies of low-level crimes suggest they might be, then hate crime laws are not having their intended effect. If this truly is the case, victims and their advocates are unwise to put their faith in them, and constitutional critics of hate crime laws can rest easy.

Hate crimes are different from other crimes in that they give more power to police. The level of discretion that comes with the identification and charging of hate crimes differs substantially from that in other areas in that some bias incidents have the potential to have either extremely high or low visibility. Hate crime identification differs from, say, the enforcement of traffic laws because it can occur under intense public scrutiny.¹¹ Even if the media do not report it, other members of the affected community are likely to know of some hate crimes and pressure police for a bias or nonbias classification.¹²

Other hate crimes suffer from extremely low visibility. Most hate crime statutes require bias motivation as well as an underlying criminal offense. Murder, nonnegligent manslaughter, forcible rape, aggravated and simple assault, intimidation, arson, destruction, and damage or vandalism of property can all be hate crimes if motivated by bias.¹³ Acts of bias-motivated vandalism such as the stoning of residents’ windows and the damaging of their cars—crimes where the underlying criminal offense is relatively minor—even when severe, rarely garner publicity. Hate crime statutes therefore present officers with more options because the decision not to charge an offender with a hate crime does not necessarily mean that the offender will escape punishment. Since bias-motivated incidents can be dealt with as “ordinary” crimes without being labeled as hate crimes, officers are more vulnerable to community pressures not to identify crimes as bias-motivated.

Police-Minority Interaction

Another reason to examine with particular care how police enforce hate crime law is that with hate crime, stereotypical assumptions about criminal law roles are reversed: most of the perpetrators are White, and most of the victims are non-White. Current data showing racial profiling of minorities by police officers as well as data regarding the excessive use of force by the police suggest that the police relate differently to and cannot be trusted to protect communities of racial minorities. The possibility that officers may not enforce the law when minority victims have been attacked is magnified by the power that relatively low-level officers—often not subject to public scrutiny—have to define hate crime.

Nonenforcement is an issue in antigay and -lesbian hate crimes, as well. Gays and lesbians have suffered both physical and emotional abuse at the hands of the police. One study found that 23 percent of gay men and 13 percent of lesbians had been harassed by the police at least once in their lives because of their sexual orientation.¹⁴ The history of police-minority interaction, combined with documented officer indifference toward hate crime law, creates a legitimate concern that police officers may not be properly enforcing the law.

Hate Crime Victimization

Consider also the problem of hate crime victimization. One justification offered for enhanced penalties for hate crime is that hate crime victims and the larger community suffer greater harm when hate crimes are committed.¹⁵ Empirical studies that compare non-bias-motivated crime victims with bias crime victims have shown that victims of bias-motivated violence suffer longer and more intensely than victims in other groups.¹⁶ One national survey compared individuals who were victimized by personal crime with people who had not been victimized by crime. Victims in this survey included victims of crime not based on prejudice, those victimized by ethnoviolence, acts motivated by prejudice against one’s group, and those who had been victims of group defamation, insults based on the victim’s background or that of persons with whom he or she identified.¹⁷ This survey revealed that of the four groups, ethnoviolence victims reported the greatest symptoms of post-traumatic stress and had made the greatest number of social and behavioral changes as a result of the incident.¹⁸

Another study examined victims who had reported bias-motivated and non-bias-motivated aggravated assaults to Boston police between 1992 and 1997. Controlling for the effects of factors like previous victimization, the quality of police response, and socioeconomic factors, the researchers examined sixteen psychological and twelve behavioral factors for differences between the victims of bias-motivated and non-bias-motivated violence. They found that the victims of bias-motivated aggravated assault experienced particular types of psychological stress for more prolonged periods and more severely than non-bias victims.¹⁹ One of the study’s most telling conclusions concerned the impact on hate crime victims of law enforcement’s response. The study found that the police response can be “pivotal” to the psychological stress of victims, and that “the ability of police officers to address incidents of assault in a responsive and effective manner can significantly reduce the potential for psychological stress” for crime victims.²⁰

This research on bias crime victimization supplies special reasons to inquire about police treatment of victims of bias-motivated violence. The trauma that victims of bias-motivated violence experience compels a response that is different from the normal police response to low-level crime: nonenforcement of the law. If investigating bias-motivated crime in a particular area can lead to a decline in that type of crime, the increased psychological effect of bias-motivated violence on victims suggests that allowing the police to ignore hate has even greater consequences than allowing the police not to enforce other types of laws.

Police Interpreting Higher Law

Studying police methods of bias crime classification also expands our knowledge of the range of actors in the law enforcement community with the power to interpret so-called higher law, such as the First Amendment. Though the Supreme Court has settled the constitutionality of bias crime statutes, much disagreement in the legal community remains over what counts as proper evidence of bias motivation and whether motivation can consist of “just words.” In the absence of an agreed-upon definition of what counts as evidence of bias motivation, as the police gather evidence in hate crime cases, they are required to interpret the First Amendment. Significant differences between prosecutorial and police understandings of protected speech and unprotected conduct suggest that the police exercise much influence enforcing the law, and that judges and lawyers are not the only actors within the criminal justice system with powers of meaningful interpretation of the First Amendment. Police officers’ interpretations in this area matter because of the critical role they play in screening the disputes that come to court, and thus their ability to decide when hate is a crime.

Whether hate crime law works and if law matters to ground-level enforcers can be examined through an empirical study of enforcement. Activists have appealed for changes in hate crime law in the wake of highly publicized crimes like the murders of James Byrd and G. P. Johnson.²¹ Whether such changes are necessary should also depend on empirical assessment. The issue of whether hate crime law matters and whether it works is inextricably linked to how it is enforced. Appeals to law are useful only if the law is meaningfully carried out by those charged with its enforcement. The critical role of motivation in hate crime law combined with the responsibility police have to determine the existence of motivation through their collection of the evidence means that closely examining the police may help us decide whether hatred is an area that the law can regulate effectively and whether bias crime legislation is the proper vehicle.

The Setting

This book evaluates how law works “on the ground,” based on observations and interviews with victim advocates and those responsible for enforcing hate crime, prosecutors and police officers in “Center City,” a large city in the United States. The study spanned the nine-month period from September 1997 to June 1998.

I have changed the city’s actual name and some of its identifying details to preserve the anonymity of those I observed and interviewed. I promised anonymity to ensure that my respondents would feel free to reveal information that they might otherwise have been reluctant to disclose. Because of the small number of individuals responsible for prosecuting hate crime cases, some of my respondents would be readily identifiable if I were to use the city’s actual name. I also wished to protect those who served at the pleasure of elected officials from job-related reprisals that could occur if what they said were revealed publicly.

Taking seriously this promise of confidentiality meant that in particular cases I have also disguised citations that would reveal the city. These include statute numbers for the state hate crime law and the actual names of the newspapers I cite. Given technological advances that put full-text computer searches of statutes at nearly everyone’s disposal, I describe rather than quote statutes directly.

Newspapers have been given the following fictitious names: Center City Daily News, Center City Tribune, Gertown Voice, Bayview City Herald, and Grangeville Star. The Center City Daily News is a well-respected city daily, not only in Center City but also in many of the small towns around it. The Center City Tribune, the second-largest newspaper in the city, is a tabloid with a wide circulation. The Gertown Voice is a weekly community...