The regular mechanisms of the criminal-justice system can also be used to combat abhorrent acts.
Late this summer, a white man opened fire in a Jacksonville, Florida, Dollar General, killing Angela Michelle Carr, Anolt Joseph “A.J.” Laguerre Jr., and Jerrald De’Shaun Gallion. Police are quite certain the attack was a hate crime. All three victims were Black; the killer reportedly used a swastika-emblazoned handgun and rifle and left hate-filled writings. “He hated Blacks, and I think he hated just about everyone that wasn’t white,” Jacksonville Sheriff T. K. Waters told CNN. “He made that very clear.”
The Jacksonville rampage is just the latest bias-motivated mass murder to make headlines. Last year, another white supremacist attacked a Buffalo, New York, grocery store, killing 10 people. In 2019, a man killed 23 people in an El Paso, Texas, Walmart, deliberately targeting Latino immigrants. That same year, a gunman assaulted a synagogue in Poway, California, killing one woman and wounding three others.
These incidents are the most extreme examples of a growing hate-crime problem. Hate crimes reported to the FBI rose more than 11 percent in 2021, part of a steady increase since 2014. Preliminary numbers from the Center for the Study of Hate and Extremism at CSU San Bernardino suggest that the trend has continued since.
Juliette Kayyem: The Jacksonville killer wanted everyone to know his message of hate
Policy makers and advocates have argued that this wave represents an upsurge in bigotry, and responded accordingly. Some, such as the Anti-Defamation League and Human Rights Campaign, have emphasized the need for more aggressive policing of hate online. Others pour funds into local communities: New York State, responding in part to the Buffalo shooting, has promised $25 million in funding to local groups, as well as money for 10 regional “bias prevention” councils. Still others want to educate against hate. The federal Office of Community Oriented Policing Services recently highlighted efforts at Michigan State University, where the campus police are leading efforts to overcome bias through facilitated intergroup discussion, educational posters on offensive language, and books on cultural competence.
Such initiatives are admirable, and may be worth pursuing for their own sake. But by focusing on hate, policy makers may neglect the ways in which they can fight hate crime by treating it as a crime. This is in part because hate criminals, research by myself and others indicates, are far more similar to other criminals than we might suspect, suggesting that hate crimes might most effectively be reduced not by programs that target bigotry per se, but by the criminal-justice system’s normal processes.
The tendency to emphasize the “hate” in hate crimes makes sense, given how we understand them. When we think about hate criminals, we often imagine what the criminologists Jack McDevitt and Jack Levin have called “mission” offenders: indefatigable bigots dead set on harming the groups they hate. And indeed, the worst hate criminals, like the Jacksonville shooter, tend to fit this profile. But when we focus on the worst cases, we miss something important about the others. Less than 1 percent of offenders are on a “mission,” according to an analysis of data from Boston (an admittedly non-representative location) from July 1991 to December 1992 that McDevitt and Levin published with the criminal-justice researcher Susan Bennett. By contrast, up to two-thirds are what McDevitt, Levin, and Bennett characterize as “thrill” offenders—those doing it for the excitement of victimizing someone.
Many hate crimes, in other words, are characterized not just by hate, but also by impulsive, disinhibited behavior. That kind of behavior characterizes much non-hate-criminal offending too, from car theft for joyrides to shoot-outs incited by minor slights. The average hate-crime offender is not a “specialist” in hate crime. Rather, most have extensive criminal histories and are similar in important ways to other criminals.
A great deal of research supports this claim. In one study of arrested hate-crime offenders, 56 percent had a prior criminal conviction. In another study of people convicted of hate offenses, the average number of prior convictions was just shy of 5.4. In a British study of incarcerated hate criminals, a whopping 97.7 percent had a prior offense, with an average of 42 previous offenses and almost six violent offenses per offender.
Shirley Li: The cognitive dissonance of the Monterey Park shooting
My own analysis, using New York State data covering more than half a million arrests, confirms this pattern. The roughly 500 hate-crime offenders in these data were different from other arrestees in major ways. They were older, more likely to be male, whiter, and more likely to have been arrested in New York City. They also faced tougher treatment in the criminal-justice system, with a higher chance of having bail set and being convicted.
But they look like other offenders on one key metric: criminal history. About half of hate-crime arrestees had a prior conviction, just like those who hadn’t committed a hate crime. About a third had a pending charge, and about 30 percent had prior felony convictions—again, much like other offenders. These similarities hold even after controlling for demographic characteristics and the severity of offense.
The fact that many hate-crime offenders also commit other crimes does not mean that their hate crimes are not really “about” hate. Just because a crime involves other motives doesn’t mean that hate can’t also play a role—particularly in their choice of victim. And hate crimes merit special legal attention because of their added harm. Being assaulted because of your race, religion, or sexual orientation hurts, in certain ways, more than just being assaulted, regardless of whether your attacker also enjoys the “thrill” of committing crimes.
But it does mean we should be skeptical of the efficacy of policy approaches—such as anti-bias education or social-media-content moderation—that prioritize reducing hate rather than reducing crime. Although these might have independent merits, they fail to recognize that hate-crime offenders are a small, and disproportionately crime-prone, subset of all people who harbor bigoted views. Trying to find the criminal needle in the hateful hay stack is less efficient than just targeting crime itself.
Rather, if hate-crime offenders are like other criminals, then their behavior should be responsive to interventions that reduce crime generally. That means that swift and certain investigation and prosecution of hate crimes should be an effective way to bring them under control. Unfortunately, many hate crimes escape prosecution: The Department of Justice, the nation’s largest prosecuting office, investigated only about 120 hate crimes a year from late 2004 to 2019. More than four in five eventually went unprosecuted. The City has found that just 15 percent of hate-crime charges end in conviction in New York City.
The problem starts with hate-crime reporting. Many—perhaps most—hate crimes are not reported to the police. This disparity stems from fears about reporting, but also from a lack of public understanding about what does and does not constitute a hate crime, and thus uncertainty about when to call one in.
Congress recently took steps to remedy these problems, creating funding for state-level hate-crime hotlines and charging DOJ with expediting hate-crime review. But there’s much more it could do. State hotlines will be effective only if the public is informed about their existence and, more important, understands what characterizes a hate crime—a standard that varies from state to state.
Conor Friedersdorf: The hate-crime case in which no one was intimidated
There’s also much more to be done to prioritize hate-crime prosecution. Addressing this gap requires more funding: Relevant federal dollars under the Hate Crimes Prevention Act covered just 22 grants in fiscal-year 2022. It also requires better coordination on best practices, such as those for evidence collection and convincing a jury of bias motivation. Many prosecutors’ offices may lack the specialized knowledge required to prove a biased state of mind, which can be remedied only with funding and education.
Of course, much like other crimes, hate crimes can have causes for which the appropriate remedy is not the criminal-justice system. Many people who commit hate crimes are mentally ill—nearly half of those arrested for hate crimes in New York City in the first half of 2022 were. Some hate-crime offenders are homeless or addicted to drugs, situations that may contribute to their offending. Treatment and social services are sometimes the right remedy in such cases, especially if they reduce a person’s recidivism risk.
Whether through the criminal-justice or social-services system, though, policy makers should address hate crimes by focusing on individual offenders, rather than trying to fight bigotry writ large. Hate, to be sure, is a challenge to a free, tolerant society. But a government response to hate crime that attempts to control hate qua hate is both inefficient and a potential threat to that same freedom. Far better—for victims, for public safety, and for society—to understand that hate criminals are criminals, and combat their crimes as crimes.
Charles Fain Lehman is a fellow at the Manhattan Institute, and a contributing editor of City Journal.
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