history

In the U.S., racial and religious biases largely have inspired most hate crimes. As Europeans began to colonize the New World in the 16th and 17th centuries, Native Americans increasingly became the targets of bias-motivated intimidation and violence. Other examples of hate crimes include the lynching of African Americans, cross burning to drive black families from predominately white neighborhoods, assaults on homosexuals, and the paintings of swastikas on Jewish synagogues.

The U.S. Supreme court has addressed certain issues raised by the first amendment scholars in two recent rulings on the constitutionality of hate crime legislation. In R.A.V. vs. City of Saint Paul, Minnesota, the court in 1992 examined legislation that made particular bias an element of crime. R.A.V. was accused of burning a cross on a black family's lawn. He was charged subsequently under Saint Paul's bias-motivated crime ordinance. The court dismissed the charges on the grounds that the ordinance violated the first amendment because it was impermissibly broad and regulated the content of the offender's speech. The court further found that the regulation was tailored appropriately to serve the state's interest in protecting the community against bias-motivated threats to public safety and order.

In 1993, the Court provided clarification when it considered the constitutionality of a statute that enhanced the penalty for otherwise criminal behavior motivated by prejudice. In Wisconsin vs. Mitchell, a group of young African American males, including Todd Mitchell, discussed a scene from a movie "Mississippi Burning" in which white men beat a black boy who id praying. After watching the movie, Mitchell asked the others he was with if they were "hyped up to move on some white people". A few minutes later, a white boy approached the group. Mitchell counted to three and pointed to the white boy, telling them to "go get him". The group ran toward the boy and beat him severely, leaving him cocomtose for four days. Mitchell was convicted of aggravated battery, an offense that normally carried a penalty of two years imprisonment. Since the jury found that Mitchell intentionally had selected his victim based upon the boy's race, the maximum sentence increased to seven years.

In the U.S. vs. Stewart, the U.S. Court of Appeals for the Eleventh Circuit held that a defendant who burned a cross on a black family's front lawn was properly prosecutes under federal civil rights laws including 42 U.S.C. 3631, which prohibits intimidation motivated by the defendants hatred for the characteristic of the victim such as race or gender.

Some legal experts believe all hate crimes jeopardize first amendment rights. In January 1993, the American Civil Liberties Union adopted a hate crime legislation policy. According to the ACLU, penalty enhancement laws are permissible for hate crimes, because these crimes "convey a constitutionally unprotected threat against the peaceable enjoyment of public places to members of the targeted group".

Current policies include only race, religion, and national origin. These polices do not protect bias-motivated crimes against gender, sexual orientation and disability.