Criminology: Modern Controversies

Crimes are social constructions. Controversy concerning the behaviors so labeled—which to include or exclude, and how to define the former—and the circumstances under which invocation of the criminal law is warranted, change in response to legal and social changes. Historically, such controversies have taken many turns, from the status of witches to substance use and abuse (and efforts to enforce statutes related to them); from criteria of citizenship to the legal standing of corporations and other organizations; from "victimless" crimes and common "street crimes" to international commerce and terrorism. Here, only a brief sampling from the vast literature of research and debate addressing such issues is possible.

Hate crimes. Although the behaviors so labeled are as old as human history, crimes motivated by "hate" or "bias" became a part of the legal and social lexicon of the United States only in the 1980s. By bringing hate or bias motivation under the criminal law, the United States, in effect, embarked on a social and legal experiment to sanction and control behavior that has long been a part of the history of the country ( Jacobs and Potter; American Sociological Association). Although every state passed some form of hate crime legislation in a very short time, there is great variation in the categories singled out for recognition as victims and in penalties for offending. Researchers note that social movements have been important in identifying some but not other categories for protection under hate crime legislation: for example, race, ethnicity, and religion most frequently; sexual orientation, physical and mental disability in several states; age, gender, interference with civil rights, marital status, physical appearance, political affiliation, and service in the armed forces in only a few states ( Jenness and Grattet). Critics point to inconsistency and vagueness in such criteria as major faults of the laws.

Hate crime laws are not the first to reference motivation. Distinctions are made between "simple" and "aggravated" assault, and between "degrees" of homicide, rape, and burglary, for example. Most such distinctions, however, are based on some observable quality of behavior, rather than or in addition to motivation. Hate crimes frequently must rely on inferences drawn from speech or an offender's associates and reading material, still another basis of ambiguity requiring often questionable inference, and subject to abuse. The constitutionality of such laws has been challenged, as well, based on the First Amendment to the U.S. Constitution.

Sentencing enhancement—frequently employed as a device for distinguishing the relative seriousness of crimes—is the most common form of hate crime sanction. Here again, there is great variation among states, most providing for (varying) terms of incarceration in addition to those previously specified for an offense. Other statutes specify as hate crimes behaviors long considered too vague and subject to unreliable reporting and recording for inclusion in statistical systems, for example, harassment, intimidation, simple assault, and vandalism. For all these reasons, critics argue that statistics on hate crimes (required by federal law) are incomplete and lacking either reliability or validity. Such vagaries notwithstanding, some social scientists, journalists, politicians, and civil rights and social movement organization spokespersons argue that the United States has experienced a "rising tide of bigotry and bloodshed" based on hate (Levin and McDevitt). Yet, bias and hate toward selected groups, and behavior related to bias and hate, have a long history in the United States and throughout the world (Graham and Gurr). Against this background, the rate of victimization of others by virtue of their categorical identity (race, ethnicity, sexual orientation, etc.) in the United States at the close of the twentieth century almost certainly was lower than in the past. Much has changed, however, including the cast of characters.

Labor disputes, for example—once the focus of violent confrontations between union organizers and members and plant owners and officials (often with government connivance and support of owners)—are now subject to regulation, and most are settled by agreed upon legal processes. Although religious prejudice continues to exist, and to be monitored by a variety of organizations, it is no longer as blatant or as volatile as it once was. Survey data suggest that racial and ethnic prejudice has decreased, and legal protections against many forms of discrimination are in place, prompted by civil rights movements—changes that have made it possible for many to escape poverty and enter mainstream society.

Pressure for hate crime laws is related also to the increasing concentration of poverty, especially among minorities living in inner-city areas. The gap between the most and the least affluent has increased in many nations. Scholars also note that declines in the perceived legitimacy of traditional institutions were associated with rising rates of violent crimes during the 1980s and early 1990s (see Harris and Curtis 1998; LaFree). Although violent crimes are overwhelmingly intraracial and intra-ethnic (that is, both victims and perpetrators occur within racial and ethnic categories), biases and fears are fueled by the overrepresentation of these minorities in crime statistics.

Although high crime rates are not associated with most other categories (religion, sexual orientation, age, gender) singled out for protection against hate crimes, all such laws may be counterproductive. Hate crime laws, Jacobs and Potter write, "are both a cause and a consequence of identity politics" that base political and other relationships among individuals and groups on membership in particular categories, thus accentuating existing divisions and resentments (p. 132).

Controversy over hate crimes is not likely to abate in the near future. Especially heinous killings that are clearly associated with racial or sexual orientation fan public outrage and encourage strengthening of such laws. Extreme behavior motivated by bias and hate has a long history—not only in the U.S. but in other countries, often in the form of "ethnic cleansing," which has become of increasing interest to the international community. It will be important in the future to monitor the effects of "natural experiments" such as hate crime legislation and enforcement, and international attempts to control such behavior. Similarly, we have much to learn from controversies regarding a host of other emerging problems and responses to them: "assisted suicide," computer crimes and message content, efforts to prevent, halt, or compensate for "ethnic cleansing," impacts of the globalization of commerce (some of which almost certainly will involve violations of criminal laws and other regulatory statutes within and between nations), and other behaviors that heretofore have been restricted to national boundaries. Increasingly, controversy concerning the legal status of behaviors that were the province solely of nation states is likely to transcend national boundaries, as global processes accelerate throughout the world.