Last October, when Abraham Foxman attended the enactment of landmark federal hate crimes legislation, it was the culmination of a generation of work and advocacy by his organization. Moments don’t get much more historic. A battle over social justice that had defined much of the latter half of the 20th century was drawing to a close as long decades of frustration and disappointment punctuated with brief respites of slow progress from city councils and state legislatures right up to the halls of Congress had come down to one definitive stroke of the presidential pen. Still, he couldn’t help but take note of a strange scene at the signing ceremony.
“It was a very interesting coming together because when the White House has a formal signing it invites people of interest,” said Foxman, the Anti-Defamation League’s (ADL) national executive director. “Half the room was military brass and half the room were human rights professionals.”
The odd blend of activists and army folk bespoke much about the bill’s method of passage – and perhaps even more about whether the fight it represented was truly over. The measure, called the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, had been attached as a rider to unrelated defense spending legislation, largely because it was thought to be the only way to get the controversial bill through a recalcitrant federal legislature.
“Part of it was politics,” Foxman said. “Part of it was opposition to what it would include. Once that obstacle was overcome, we were able to pass it.”
That obstacle was sexual orientation, which, in addition to gender, was among several new protected categories for hate crimes under the bill. The law’s other main effect was to extend federal hate crime prosecutorial powers beyond the narrower scope of the 1969 civil rights legislation it modified.
Ironically, the two people the measure was named for were officially not victims of hate crimes. Neither Wyoming, where Shepard was tortured and killed for being gay, nor Texas where Byrd was dragged behind a truck before being decapitated because of his race, had laws designating their murders with the term. Federal hate crimes laws at the time covered only violations committed during certain protected activities, such as voting.
“Hate crimes is a particular legal formulation that doesn’t emerge until about the 1970s,” said Valerie Jenness, a professor at the University of California at Irvine. “Prior to that it would be assault, it would be trespassing, it would be vandalism, it would be murder. Only when you have a law saying it’s going to be categorized this way do we talk about hate crimes.”
Understanding that hate crimes are a matter of terminology as much as of the action itself is a key to understanding their history. Jenness, who has written two books on the topic, said that hate crimes emerged as part of an unusual alliance between liberal civil rights advocates and conservative victims’ rights campaigners.
“The argument I lay out is that it comes on the tail end of the institutionalization of a lot of social movements,” she said. “It was an odd moment when you had Orrin Hatch and Ted Kennedy promoting the same piece of legislation but for very different reasons.”
Jenness said there is still some debate over where the first hate crimes laws were passed but they largely began to percolate at the state level before making the jump to federal law. According to Federal Bureau of Investigation (FBI) training materials, the first true recognition by U.S. government authorities came in 1990 with the passage of the Hate Crimes Statistics Act. The act wasn’t so much an enforcement mechanism as a record-keeping mandate which directed the FBI to classify certain crimes ranging from vandalism and arson to assault, rape and murder, as being motivated by race, religion, sexual orientation or ethnicity in their Uniform Crime Reports. By 1994, the categories had been expanded to include physical and mental disabilities.
According to the FBI’s website, in 2008 more 13,000 participating American law enforcement agencies reported nearly 7,800 hate crime incidents against 9,700 victims. More than half were racially biased. Less than one-fifth were based on religion, however of that group almost two-thirds – just over 1,000 incidents – were anti-Semitic, close to five times the number of the next largest group.
It was state laws that had provided the training ground for eventual federal recognition of such behavior.
“Where the Jewish community becomes incredibly central is that the ADL drew up legislation that had certain language and provisions and they promoted it across the country,” Jenness said. “Their regional offices were very persuasive. If you had an ADL regional office in your state the probably of enacting a hate crimes law went up. They were good lobbyists, good activists.”
Foxman placed work on hate crimes among ADL’s greatest achievements second only to the anti-mask laws that forced Ku Klux Klansmen to leave their faces uncovered during events. Though he says hate crimes laws had been passed in all but four states it still had value to pass it at the federal level.
“Public attitude is reflected in the law and the law then reinforces the attitude,” he said. “That’s its impact. It says that the American people both locally and federally say that hate crimes are something contrary to American spirit, traditions and values.”
Still, its attachment to the military spending bill also showed that cracks were increasingly evident in the progressive-conservative partnership that had helped spawn such laws in the first place.
“It has to do with which groups of people were to be included in the protected classes of individuals and I think the greatest difficulty was regarding the gay community,” said Aaron Breitbart, senior researcher at the Simon Wiesenthal Center in Los Angeles. “There was significant opposition to giving them special legal protection because society still holds a certain prejudice against gays.”
There are also lingering doubts about the laws’ real effect. On this point Breitbart is dubious.
“It provides enhanced punishments and penalties for those who are guilty of hate crimes,” he said. “The question is does that in any way stop or deter them? It’s an interesting question. My guess is that it really doesn’t but that it provides more of a social catharsis for people. It shows the way that society wants to go.”
Locally, support for hate crimes legislation is blended with sentiments about whether such laws are more a statement of purpose or a true deterrent. Rabbi Howard Kaplansky of United Hebrew Congregation said he thinks that singling out bias-based criminality for special sanction is very much in line with Judaic teachings.
“From a Jewish perspective, the fabric of Jewish law is to help us to live in a society in which people can cooperate and live in unity not only recognizing differences but accepting uniqueness,” he said. “I think such legislation does and should serve a preventative role because hate crimes are directed against specific groups of individuals. If such acts can be discouraged by more intense prosecution and punishment to create deterrence that would be a positive thing.”
Rabbi Randy Fleisher of Central Reform Congregation said he feels that either way the effect is a good one.
“For me, I think that if a crime is designated a hate crime, there is a public service that is done,” he said. “I’m glad that the legal orientation of our country has more and more embraced such a concept.”
For Foxman, who watched the unusual gathering at the White House signing ceremony, the result was a bittersweet lesson in mixed feelings.
“The good news is that it happened,” he said. “The bad news is that we weren’t able to pass it as standalone legislation. Congress was not yet ready for this country to stand up and say we will enact hate crimes legislation.”