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ABSTRACT
The distinction between hate crime and terrorism is a contentious legal issue that impacts how respective crimes are labeled and prosecuted. Using a legal content analysis, this study examines what central legal elements comprise hate crimes and terrorism, respectively, for each state to discern their legal differences. The analysis along with exegesis of terrorism and hate crime definitions enumerated in state law demonstrates that these crimes are too similar to be different legal constructs, given their definitional elements and real-world applications. The study concludes that these “crimes” need to either be eliminated from criminal law or altered so as to make the adjudication of so-called extremism more parsimonious, equitable, and consistent. Recommendations are proffered on how this can be accomplished.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes
1. Alan Blinder and Kevin Sack, “Dylann Roof, Addressing Court, Offers No Apology or Explanation for Massacre,” New York Times, January 4, 2017, https://www.nytimes.com/2017/01/04/us/dylann-roof-sentencing.html.
2. Nick Corasaniti, Richard Peretz-Pena, and Lizette Alvarez, “Church Massacre Suspect Held as Charleston Grieves,” New York Times, June 18, 2015, http://www.nytimes.com/2015/06/19/us/charleston-church-shooting.html.
3. Jesse J. Norris, “Why Dylann Roof Is a Terrorist Under Federal Law, and Why It Matters,” Harvard Journal on Legislation 54 (2017): 502–41.
4. Kevin Johnson, “Attorney General Lynch: Hate Crimes are the Original Terrorism,” USA Today, June 24, 2015, http://www.usatoday.com/story/news/nation/2015/06/24/loretta-lynch-baptist-church-birmingham/29238615/.
5. Jordain Carney, “Dems want Domestic Terrorism Probe,” The Hill, June 30, 2015, https://thehill.com/blogs/floor-action/senate/246526-dems-want-domestic-terrorism-hearing.
6. “At Service, Holder Calls Sikh Temple Shooting a Hate Crime,” CNN News, August 10, 2012, https://www.cnn.com/2012/08/10/us/wisconsin-temple-shooting/.
7. Karen Herzog, “Congressional Hearing Addresses Hate Crimes after Sikh Attack,” Journal Sentinel, September 19, 2012, http://archive.jsonline.com/features/religion/congressional-hearing-addresses-hate-crimes-extremism-after-sikh-attack-vt6u47u-170379006.html.
8. Brian McBride and Michael Edison Hayden, “Orlando Gay Nightclub Massacre a Hate Crime and Act of Terror, FBI Says,” ABC News, June 15, 2016, https://abcnews.go.com/US/investigators-turn-focus-omar-mateens-wife-criminal-charges/story?id=39867320.
9. Tim Fitzsimons, “What Really Happened that Night at Pulse,” NBC News, June 12, 2018, https://www.nbcnews.com/feature/nbc-out/what-really-happened-night-pulse-n882571; and Jacob Ogles, “Why does the FBI Refuse to Call the Pulse Massacre a Hate Crime?” Advocate, June 11, 2018, https://www.advocate.com/crime/2018/6/11/why-does-fbi-refuse-call-pulse-massacre-hate-crimes.
10. David Dinelli, “Elected leaders must acknowledge Orlando gunman targeted LGBT community,” Southern Poverty Law Center, June 14, 2016, https://www.splcenter.org/news/2016/06/14/elected-leaders-must-acknowledge-orlando-gunman-targeted-lgbt-community; and “49 Murdered At Orlando Club, And Extremists Celebrate,” Southern Poverty Law Center, February 15, 2017, https://www.splcenter.org/fighting-hate/intelligence-report/2017/49-murdered-orlando-club-and-extremists-celebrate.
11. This case is still being investigated as of submission. For information on the act itself, see Brett Barrouquere and Hatewatch Staff, “El Paso Shooting Suspect May Have Authored Manifesto Containing White Nationalist Talking Points,” Southern Poverty Law Center, August 3, 2019; see also Simon Romero, Manny Fernandez, and Mariel Padilla, “Day at a Shopping Center in Texas Turns Deadly,” The New York Times, August 3, 2019.
12. See note 3 above.
13. Nicholas J. Perry, “The Numerous Federal Legal Definitions of Terrorism: The Problem of too Many Grails,” Journal of Legislation 30, no. 2 (2004): 249–74.
14. Khaled A. Beydoun, “Islamophobia: Toward A Legal Definition and Framework,” Columbia Law Review 116 (2016): 108–25.
15. Wesley S. McCann and Nicholas Pimley, “Mixed Mandates: Issues Concerning Organizational and Statutory Definitions of Terrorism in the United States,” Terrorism and Political Violence 32 no. 4 (2018): 1–24, https://doi.org/10.1080/09546553.2017.1404457
16. Harbani Ahuja, “The Vicious Cycle of Hate: Systemic Flaws in Hate Crime Documentation in the United States and the Impact on Minority Communities,” Cardozo Law Review 37 (2016): 1868–906; Lisa S. L. Ho, “Substantive Penal Hate Crime Legislation: Toward Defining Constitutional Guidelines Following the R.A.V. v. City of St. Paul and Wisconsin v. Mitchell Decisions,” Santa Clara Law Review 34 (1994): 711–64; and Stephen Russell Martin II, “Establishing the Constitutional Use of Bias-Inspired Beliefs and Expressions in Penalty Enhancement for Hate Crimes: Wisconsin v. Mitchell,” Creighton Law Review 27 (1994): 503–24.
17. Lawrence Bradfield Hughes, “Can Anyone Be the Victim of a Hate Crime?” University of Dayton Law Review 23 (1998): 591–621; James B. Jacobs and Kimberly A. Potter, “Hate Crimes: A Critical Perspective,” Crime & Justice 22 (1997): 1–42; and Kelly Jo Popkin, “FACEing Hate: Using Hate Crime Legislation to Deter Anti-Abortion Violence and Extremism,” Wisconsin Journal of Law, Gender, & Society 31 (2016): 103–16.
18. Stuart A. Scheingold, The Politics of Rights: Lawyers, Public Policy, and Political Change (Ann Arbor, MI: University of Michigan Press, 2010); and Jerome H. Skolnick, Justice Without Trial: Law Enforcement in Democratic Society (New Orleans, LA: Quid Pro Books, 2011).
19. Gilbert Ramsay, “Why Terrorism Can, But Should Not be Defined,” Critical Studies on Terrorism 8 (2015): 211–28; and Alex P. Schmid, “Frameworks for Conceptualising Terrorism,” Terrorism and Political Violence 16, no. 2 (2004): 197–221.
20. Leonard Weinberg, Ami Pedahzur, and Sivan Hirsch-Hoefler, “The Challenges of Conceptualizing Terrorism,” Terrorism and Political Violence 16, no. 4 (2005): 777–94.
21. Harold H. A. Cooper, “Terrorism: The Problem of Definition Revisited,” American Behavioral Scientist 44, no. 6 (2001): 881–93; and Rumyana Grozdanova, “‘Terrorism’: Too Elusive a Term for an International Legal Definition?” Netherlands International Law Review 61, no. 3 (2014): 305–34.
22. Sudha Setty, “Country Report on Counterterrorism: United States of America,” American Journal of Comparative Law 62, no. 1 (2014): 643–72.
23. Cyrille Begorre-Bret, “The Definition of Terrorism and the Challenge of Relativism,” Cardozo Law Review 27, no. 5 (2006): 1987–2004.
24. Alan Greene, “The Quest for a Satisfactory Definition of Terrorism: R v. Gul,” The Modern Law Review 77, no. 5 (2014): 780–93; Perry, “The Numerous Federal Legal Definitions of Terrorism,”; and Nathaniel Stewart, “Ohio’s Statutory and Common Law History with ‘Terrorism’: A Study in Domestic Terrorism Law,” Journal of Legislation 32, no. 1 (2005): 93–128.
25. Bruce Broomhall, Franklin Thomas Backus School of Law, and War Crimes Research Symposium “Terrorism on Trial.” Symposium: “Terrorism on Trial.” Cleveland, Ohio: Case Western Reserve University School of Law, 2005.
26. Alex P. Schmid, Albert J. Jongman, Michael Stohl, J. Brand, P. A. Fleming, A. van derPoel, and R. Thijsse, Political Terrorism: A New Guide to Actors, Authors, Concepts, Data Bases, Theories, and Literature (New Brunswick, NJ: Transaction Books, 1988).
27. Ibid.
28. Jessie Blackbourn, Fergal F. Davis, and Natasha C. Taylor, “Academic Consensus and Legislative Definitions of Terrorism: Applying Schmid and Jongman,” Statute Law Review 34, no. 3 (2013): 239–61.
29. Ibid.
30. Shirin Afsous, “Proving Hate: The Difficulties of Successfully Prosecuting Bias-Motivated Crimes,” Suffolk Journal of Trial and Appellate Advocacy 22 (2016): 273–91; and Ahuja, “The Vicious Cycle of Hate,” 1868–906.
31. Valerie Jenness and Ryken Grattet, Making Hate a Crime: From Social Movement to Law Enforcement (New York, NY: Russell Sage Foundation, 2001); and Brian Levin, “From Slavery to Hate Crime Laws: The Emergence of Race and Status-Based Protection in American Criminal Law,” Journal of Social Issues 58, no. 2 (2002): 227–45.
32. Kamban Naidoo, “The Historical Prosecution of Hate Crimes in the United States of America,” Fundamina 23, no. 2 (2017): 21–38.
33. Craig Peyton Gaumer, “Punishment for Prejudice: A Commentary on the Constitutionality and Utility of State Statutory Responses to the Problem of Hate Crimes,” South Dakota Law Review 39 (1994): 1–48.
34. Ahuja, “The Vicious Cycle of Hate,” 1868–906; Briana Alongi, “The Negative Ramifications of The Crime Legislation: It’s Time to Reevaluate Whether Hate Crime Laws Are Beneficial to Society,” Pace Law Review 37 (2016): 326–51; Ho, “Substantive Penal Hate Crime Legislation,” 711–64; and Martin II, “Establishing the Constitutional Use of Bias-Inspired Beliefs,” 503–24.
35. Hughes, “Can Anyone Be the Victim,” 591–621; Jacobs and Potter, “Hate Crimes,” 1–42; and Popkin, “FACEing Hate,” 103–16.
36. Hughes, “Can Anyone Be the Victim,” 591–621.
37. Popkin, “FACEing Hate,” 103–16.
38. Blackbourn, Davis, and Taylor, “Academic Consensus and Legislative Definitions of Terrorism,” 239–61; and McCann and Pimley, “Mixed Mandates.”
39. One example of this was in regards to the motivational element of hate crimes. Since hate crime statutes rarely mentioned political, social, or religious motivation in the same way, we coded “because of” “based on” as triggering the same motivational element that would occur with the terrorism definitions, since the crimes were “because of” some bias, prejudice, or belief system. We discovered this toward the end of our study, and as a result, had to recode all hate crime statutes along the motivate node again.
40. For example, if it was determined during recoding that there were numerical discrepancies in how many times various protected classes were included in hate crime definitions, then each protected class was recoded for each state statute.
41. Also, one researcher would often code a statute that was already coded, at random, to determine if the other coder had made any errors. A few errors were made but caught and fixed early on. An error that was made early on was that other, unrelated portions of a statute were often coded. Many times, “terrorism” or “hate crime” were defined in various criminal law or sentencing chapters along with other crimes. Thus, sometimes, text from other crimes were coded when they did not need to be, and the reverse. This is also why we ended up recoding most of the statutes.
42. This point was reaffirmed by a reviewer for this manuscript. While the federal government does have the ability to prosecute all terrorism cases, many cases are not “labeled” as terrorism cases, and as such, get passed back off to states to adjudicate. The extent to which this is done, however, is unknown.
43. We originally included the top 8 nodes based on prior analyses, however, after coding and discussing the node “criminal” we decided to exclude it from the analyses. This is because this node coded language in statutes that explicitly or implicitly referred to a crime being committed. This is somewhat relevant when coding terrorism definitions around the world, but when the definitions obtained for both terrorism and hate crime are criminal statutes, they are by definition, “criminal.” As such, we excluded them here from the analysis.
44. Ibid.
45. Ibid.
46. See note 28 above.
47. Barbara K. Bosserman and Angela Miller, “Prosecuting Federal Hate Crimes,” United States Attorneys’ Bulletin 66 (2018): 191.
48. See note 28 above.
49. MN. Stat. § 611A.79 (2018); MN. Stat. § 609.2231(4) (2018).
50. CT. Gen. Stat. § 46a-58 (2018).
51. LA. Rev. Stat. § 14:128.1 (2018).
52. 18 PA. Cons. Stat. § 2717 (2017).
53. UT. Code § 52-2a-102.14 (2018).
54. CO. Rev. Stat. § 18-9-121 (2018).
55. 18 U.S.C. § 2331 (2016).
56. FL. Stat. § 775.085 (2018); FL. Stat. § 775.30 (2018).
57. NC. Gen. Stat. § 14–3 (2018).
58. AR. Code § 16-123-106 (2017).
59. GA. Code § 17-10-17 (2018); WY. Stat. § 6-9-102 (2017).
60. Ibid.
61. ND. Crim. Code § 12.1-17-04 (2017).
62. AK. Stat. § 11.56.807 (2018).
63. CA. Penal Code § 422 (2018).
64. 11 DE. Code § 621 (2018).
65. HI. Rev. Stat. § 707–715 (2018).
66. 17-A ME. Rev. Stat. § 210 (2018).
67. MO. Rev. Stat. § 574.115 (2018).
68. NE. Code § 28–311.01 (2018).
69. NM. Stat. § 30-20A-2 (2017).
70. AR. Code § 5-54-201 (2017).
71. 720 IL. Comp. Stat. § 5/29D-10 (2018).
72. 21 OK. Stat. § 21–1268.1 (2018).
73. UT. Code § 53-2a-102 (2018).
74. 18 U.S.C. § 2331 (2016).
75. Ibid.
76. UT. Code § 76-3-203.14 (2019).
77. IN. Code § 35-38-1-7.1 (2019); Brianna Bell, “Indiana Hate Crimes Bill Signed into Law,” Jurist, April 3, 2019, https://www.jurist.org/news/2019/04/indiana-hate-crimes-bill-signed-into-law/.
78. See note 15 above.
79. “GTD,” Global Terrorism Database, University of Maryland, National Consortium for the Study of Terrorism and Responses to Terrorism, last modified July 2018, https://www.start.umd.edu/gtd/.
80. “Hate Crime Statistics,” UCR Hate Crimes, Federal Bureau of Investigation, Uniform Crime Reports, https://ucr.fbi.gov/hate-crime/ (accessed May 1, 2019).
81. 18 U.S.C. § 245 (2016).
82. Shepard/Byrd Hate Crimes Prevention Act, 18 U.S.C. § 249(a)(1) (2009).
83. 42 U.S.C. § 3631 (2016); 18 U.S.C. § 247 (2016).
84. See note 47 above.
85. Shepard/Byrd Hate Crimes Prevention Act, 18 U.S.C. § 249(a)(2) (2009).
86. See note 47 above.
87. Matthew Trout, “Federalizing Hate: Constitutional and Practical Limitations to the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009,” American Criminal Law Review 52 (2015): 131.
88. See note 47 above.
89. See note 87 above.
90. Shepard/Byrd Hate Crimes Prevention Act, 18 U.S.C. § 249 (2009).
91. “Convictions in Federal Hate Crime Cases Since FY 2010,” TRAC Reports, last modified 2015, https://trac.syr.edu/tracreports/crim/393/.
92. Ibid.
93. “Hate Crime Statistics,” UCR Hate Crimes, Federal Bureau of Investigation, Uniform Crime Reports, https://ucr.fbi.gov/hate-crime/ (accessed May 1, 2019).
94. “Justice Department Update on Hate Crime Prosecutions,” Department of Justice, last updated 2018, https://www.justice.gov/opa/pr/justice-department-update-hate-crimes-prosecutions.
95. See note 87 above.
96. Nickie D. Phillips, “The Prosecution of Hate Crimes: The Limitations of the Hate Crime Typology,” Journal of Interpersonal Violence 24, no. 5 (2009): 883–905.
97. Mindy S. Bradley-Engen, Kelly R. Damphousse, and Brent L. Smith, “Punishing Terrorists: A Re-Examination of U.S. Federal Sentencing in the Postguidelines Era,” International Criminal Justice Review 19, no. 4 (2009): 433–55; Kelly R. Damphousse and Chris Shields, “The Morning After: Assessing the Effect of Major Terrorism Events on Prosecution Strategies and Outcomes,” Journal of Contemporary Criminal Justice 23, no. 2 (2007): 174–94; Brent L. Smith, Kelly R. Damphousse, Freedom Jackson, and Amy Sellers, “The Prosecution and Punishment of International Terrorists in Federal Courts: 1980–1998,” Criminology and Public Policy 1, no. 3 (2002): 311–38; Brent L. Smith, Kelly R. Damphousse, Song Yang, and Cristie Ginther, “Prosecuting Politically Motivated Offenders: The Impact of the Terrorist Label on Criminal Case Outcomes: Terrorism and the Modern World,” International Journal of Contemporary Sociology 42, no. 2 (2005): 209–26; Brent L. Smith and Kelly R. Damphousse, “Punishing Political Offenders: The Effect of Political Motive on Federal Sentencing Decisions,” Criminology 34, no. 3 (1996): 289–322; and Brent L. Smith and Kelly R. Damphousse, “Terrorism, Politics, and Punishment: A Test of Structural-Contextual Theory and the ‘Liberation Hypothesis’,” Criminology 36, no. 1 (1998): 67–92.
98. Brent L. Smith, Terrorism in America: Pipe Bombs and Pipe Dreams (Albany, New York: SUNY Press, 1994).
99. Smith and Damphousse, “Punishing Political Offenders,” 289–322; and Smith and Damphousse, “Terrorism, Politics, and Punishment,” 67–92.
100. Smith, Damphousse, Jackson, and Sellers, “The Prosecution and Punishment of International Terrorists,” 311–38.
101. Damphousse and Shields, “The Morning After,” 174–94.
102. Smith, Terrorism in America; Smith, Damphousse, Jackson, and Sellers, “The Prosecution and Punishment of International Terrorists,” 311–38; Smith, Damphousse, Yang, and Ginther, “Prosecuting Politically Motivated Offenders,” 209–26.
103. Federal Sentencing Guidelines, § 3A1.1 (1990); Federal Sentencing Guidelines, § 3A1.4 (1990).
104. 18 U.S.C. § 2331 (2016).
105. 18 U.S.C. § 2332b(g)(5)(B) (2016).
106. 18 U.S.C. § 2331 (2016).
107. “GTD,” Global Terrorism Database, University of Maryland, National Consortium for the Study of Terrorism and Responses to Terrorism, last modified July 2018, https://www.start.umd.edu/gtd/; “Hate Crime Statistics,” UCR Hate Crimes, Federal Bureau of Investigation, Uniform Crime Reports, https://ucr.fbi.gov/hate-crime/ (accessed May 1, 2019).
108. See note 3 above.
109. In Re Terrorists Bombings of US Embassies in East Africa, 552 F.3d 157 (2008).
110. Federal Sentencing Guidelines, § 3A1.1 (1990); Federal Sentencing Guidelines, § 3A1.2 (1990); Federal Sentencing Guidelines, § 3A1.4 (1990).
111. In Re Terrorists Bombings of US Embassies in East Africa, 552 F.3d 157 (2008).
112. See note 15 above.
113. “Hate Crime Statistics,” UCR Hate Crimes, Federal Bureau of Investigation, Uniform Crime Reports, https://ucr.fbi.gov/hate-crime/ (accessed May 1, 2019).
114. “GTD,” Global Terrorism Database, University of Maryland, National Consortium for the Study of Terrorism and Responses to Terrorism, last modified July 2018, https://www.start.umd.edu/gtd/.
115. Ibid.
116. Ibid.
117. Ibid.
118. Similarly, only the first motivation logged by the FBI is used here, as only about 3 percent of incidents involved more than one motivation.
119. Mark Juergensmeyer, “2009 Presidential Address: Beyond Words and War: The Global Future of Religion,” Journal of the American Academy of Religion 78, no. 4 (2010): 882–95; Mark Juergensmeyer, Violence and the Sacred in the Modern World (London, UK: Routledge, 2019).
120. David C. Rapoport, “The Fourth Wave: September 11 in the History of Terrorism,” Current History 100, no. 650 (2001): 419.
121. Hughes, “Can Anyone Be the Victim,” 591–621; Jacobs and Potter, “Hate Crimes,” 1–42; and Popkin, “FACEing Hate,” 103–16.
122. Smith, Terrorism in America; Smith, Damphousse, Jackson, and Sellers, “The Prosecution and Punishment of International Terrorists,” 311–38; and Smith, Damphousse, Yang, and Ginther, “Prosecuting Politically Motivated Offenders,” 209–26.
123. Brian D. Johnson, “Cross-Classified Multilevel Models: An Application to the Criminal Case Processing of Indicted Terrorists,” Journal of Quantitative Criminology 28, no. 1 (2012): 163–89; Smith and Damphousse, “Punishing Political Offenders,” 289–322; and Smith and Damphousse, “Terrorism, Politics, and Punishment,” 67–92.
124. Bradley-Engen, Damphousse, and Smith, “Punishing Terrorists,” 433–55.
125. Bruce Hoffman, Inside Terrorism (New York, NY: Columbia University Press, 2013).
126. Only includes groups with five or more acts during this period. There are over fifty other groups/single-issue actors with fewer than five acts during this period.
Additional information
Notes on contributors
Wesley S. McCann
Wesley S. McCann is a Visiting Assistant Professor of criminology at The College of New Jersey. He holds a PhD in criminal justice and criminology from Washington State University and has published numerous articles dealing with criminal law and procedure, judicial decision-making, legal scholarship in the field of criminal justice, and terrorism. His current research focuses on issues concerning hate crime and terrorism legislation, the immigrant–crime relationship, anti-immigrant hate crime, and contemporary issues relating to immigration law and policy. His work has appeared in Terrorism and Political Violence, Criminal Justice Policy Review, Criminal Justice Review, Corrections, Criminal Law Bulletin, Journal of Criminal Justice Education, and various law reviews. He is also a coauthor on Criminal Courts: A Text/Reader by Sage with Dr. Craig Hemmens and Dr. Cassia Spohn.
Nicholas Pimley
Nicholas Pimley is a PhD candidate in the Department of Criminal Justice and Criminology at Washington State University. His areas of interest include juvenile justice, diversionary programs, offender reentry, and legal issues. He has also taught courses in American crime control policy and American criminal courts.