Vol. 13 No. 1 (January2003)

Punishing hate: bias crimes under American law by Frederick M. Lawrence.  Cambridge, MA: Harvard University Press, 2002.  269 pp.  Paper $18.95.  ISBN: 0-674-00972-X.

Reviewed by Jeannine Bell, Indiana University School of Law (Bloomington).

Fredrick Lawrence evinces a clear intellectual and political purpose in PUNISHING HATE: BIAS CRIMES UNDER AMERICAN LAW.  Lawrence, a law professor who teaches at Boston University, is disturbed by racial violence in the United States—“hate crimes” or, the term that Lawrence prefers, “bias crimes”—and wants this violence to be appropriately punished.   Bias crime legislation often mandates enhanced penalties for crimes that are motivated by racism, anti-ethnic or anti-religious bias.  In endorsing bias crime legislation as the appropriate way to punish acts of racial violence, this book provides not only an explanation of the roots of bias crime law but also offers strong theoretical justifications for such laws that are solidly grounded in areas ranging from criminal law to democratic theory.

One goal of the book appears to be to offer theoretical responses to critics of bias crime legislation.  Though Lawrence refutes numerous criticisms, in the book he focuses his attention primarily on three obstacles that critics have identified: 1) whether it is appropriate to treat bias crime as a category separate and distinct from other crime; 2) the constitutionality of bias crime statutes given guarantees for freedom of expression; and 3) federalism concerns posed by the creation of federal legislation.

PUNISHING HATE consists of seven succinct chapters, an historical appendix describing the Civil Rights Act of 1866 and other early attempts to regulate racial violence, and several more appendices describing various hate crime statutes.  The first three chapters provide an excellent introduction to the topic for readers unfamiliar with the area.  In these early chapters, Lawrence lays the groundwork for his defense of bias crime legislation by creating a precise definition for bias crime and offering data on the distinctiveness of the injury caused to victims.  The discussion in these chapters and throughout the book in general is careful and nuanced.   For example, Lawrence flags for the reader major areas of political tension and legislative difficulty, such as the inclusion of gender and sexual orientation in bias crime legislation.

In chapters four to seven, Lawrence warms to his argument, turning to the major theoretical obstacles to crafting legislation that critics have identified.  Lawrence offers an excellent response to one of the principal arguments against bias crime legislation—because crimes like murder, assault and vandalism may be punished under the state criminal laws, hate crime legislation is redundant.  As Lawrence demonstrates, victims of bias crime suffer greater harm, and, as a consequence, bias-motivated offenders should receive harsher punishment.

To bolster his argument that bias crimes should receive additional punishment, Lawrence creates two typologies—one involving specific types of bias crimes, and one that focuses on the mental state of perpetrators.  These typologies allow Lawrence to neatly sidestep many of the pragmatic and constitutional difficulties that have confounded other supporters of bias crime legislation, especially the worry voiced by critics that bias crime legislation catches within its ambit pranksters who did not intend to cause the harm associated with bias crime.  Lawrence does this by proposing to limit prosecution to the most culpable of perpetrators—those whose intention to inflict bias-motivated injury is clear and those who should have comprehended the damage their behavior would cause.  The book advocates limiting punishment under bias crime legislation to specific types of offenders.  In addition to those who openly select victims because of racial animus, Lawrence would make subject to bias crime laws offenders whose racial bias is masked by a pretext, like protecting their neighborhood from outsiders, and also those who commit crimes but should have been aware of their bias.

Lawrence offers interesting new arguments on the constitutionality of hate crime legislation. He accepts that hate speech may have constitutional protection but insists that hate crime is not constitutionally protected, although not for the reasons articulated in the two Supreme Court cases to address the topic.  Lawrence rejects and describes as untenable the speech/conduct distinction adopted by the Court and many commentators.  Instead, he suggests that bias crime legislation is constitutional because it furthers an important issue unrelated to the suppression of racist speech.  He writes, “The state interests served by laws specifically targeting bias crimes include...the need to deter generally a rapidly increasing form of crime and to deter specifically a perpetrator with high degree of potential dangerousness, and the desire to address a crime that has a particularly injurious effect on the victim, the targeted group, and society at large” (106).

Another critical assertion that Lawrence spends some time countering is that the federal government should not play a role in prosecuting hate crimes because this violates the proper division of authority between the state and local government in the political system.  In the book’s longest chapter, on the federal role in prosecuting bias crimes, Lawrence traces federal involvement in the prosecution of racially motivated violence back to Reconstruction.  He argues that a federal role in the prosecution of bias crime is needed at least in part to compensate for state inaction.  Though it may not be satisfying to critics, ultimately the book’s most compelling argument is that special legislation targeted specifically at bias crime has significant symbolic value, enshrining society’s cherished value of racial equality (169).

Though the book does a fine job of responding to arguments posed by detractors, some supporters of bias crime legislation may feel at points that its thesis does not sufficiently comply with important cases that should serve to legitimize such legislative efforts.  For instance, Lawrence is unwilling to convict of bias crime violations, an oblivious racist who "commits an interracial assault that, although unconsciously motivated by bias, is without conscious racial motivation" (171).  Some supporters of bias crime legislation would support enhanced penalties for the additional harm that is caused, even where that harm was unintended.

This book seems primarily designed to address a variety of theoretical arguments attendant to the creation of bias crime legislation.  Lawrence’s book is quite strong where he supports his theoretical analysis with social scientific research.  Although Lawrence relies on this type of evidence in many parts of the book, in a few areas, particularly when he creates offender typologies, the analysis would have been strengthened by empirical evidence supporting his conclusions. 

In sum, PUNISHING HATE is a well-written, comprehensive resource on bias crime law.  Very accessible, with familiar examples throughout, the book should serve as a resource for a variety of audiences—from undergraduate students to scholars.  Students and researchers alike will benefit as well from the book’s appendices, which contain detailed descriptions of a variety of bias crime statutes.

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Copyright 2003 by Lawrence, Jeannine Bell