The current discussion of hate or bias crimes and hate crime legislation in Alaska seems to require an examination of the figures on these types of incidents both here and in the country as a whole, as well as a review of the status of existing laws, both federal and state.
In reality, for Alaska it is impossible accurately to assemble anything approaching comprehensive or solid figures on criminal incidents exhibiting racial, ethnic, religious or other types of bias. While the FBI assembles data on bias incidents from law enforcement agencies throughout the country, in Alaska only the Anchorage Police Department participates in this reporting program. The figures from APD seem to be the only systematically assembled numbers in the state. These show that, for the most part, relatively few incidents showing bias are being reported in the Anchorage area.
Assembly of Data
The FBI is the primary source for national figures on hate or bias offenses. Since 1990 the agency has assembled figures from law enforcement agencies throughout the country and released a summary compilation under the title Hate Crime Statistics. Tables 1-3 show data from the 1999 edition of this publication.
Participation in this FBI reporting program is voluntary for police departments. Nationwide, over 12,000 law enforcement agencies, representing approximately 85 per cent of the total population, submitted summary reports for 1999. However, many participating agencies submitted reports which claimed the occurrence of no incidents showing a bias motivation. In fact, only 15 per cent of the participating agencies reported the occurrence of any hate crime incidents. (Among those law enforcement agencies reporting no incidents were police departments in such major cities as Detroit, New Orleans, Cincinnati and Miami.) Hence, the FBI summary on these types of incidents is probably distorted by under-reporting. Data assembled by non-governmental civic organizations, such as the Anti-Defamation League, in general show a much greater incidence of criminal behavior exhibiting a bias motivation, but this information is assembled differently, with different guidelines, and cannot be directly compared to figures assembled by law enforcement agencies.
In looking at the issue of hate or bias crimes it is important to clarify what the FBI figures show or define. The data assembled for this annual publication are not, in fact, precise figures on incidents actually established as hate crimes per se under most state criminal codes but rather reflect the occurrence of incidents reported to the police that showed evidence of some type of bias motivation. Nor do the statistics show how many incidents actually encompassed offenses of any type which were prosecutable. Moreover, the term bias motivation seems to be used broadly. (See accompanying article, Incidents Revealing Bias: Anchorage, 1999.)
As the form reproduced in Figure 1 illustrates, the FBI protocol for reporting on hate or bias crime incidents requires a law enforcement agency to identify the offense, the type of bias discerned, the location of the incident, the type and number of victims, the number of offenders, and the race of suspected offenders. The category of bias motivation is subdivided to show racial, ethnic, religious, sexual, or anti-disabled bias. These categories are themselves further broken down to permit more specific identification of the bias.
In Alaska, only the Anchorage Police Department participates in the FBI reporting program. At APD, records personnel determine whether to report an incident as a hate crime and what data to enter. Records personnel derive this information from the reports filed by individual officers responding to a call or investigating an incident. If there is doubt on whether to classify an incident as a hate crime, the decision is referred to the Captain of Investigations.
As shown in Table 1, a racial bias was by far the most common bias among incidents reported for 1999. Of the 4,295 incidents reported in which a racial bias was noted, 2,95868.9 per centwere designated as anti-black.
Other categories show lower numbers, with 1,411 incidents in which a religious bias was discerned and 1,317 showing a sexual orientation bias. Among the religious bias incidents, those which were anti-Jewish in nature comprised 78.6 per cent, and those with a sexual orientation bias, anti-male homosexual incidents were 69.4 per cent.
Table 2 shows the types of offenses which occurred during the reported incidents. Over two-thirds were crimes against persons, with one-half of these categorized as intimidation. A little less than one third of the total number comprised crimes against property, with the overwhelming majority of these listed as destruction/damage/vandalism.
Over 47 per cent of hate crime incidents represented by the FBI figures occurred in a residence or on the street and just over 10 per cent in a school or college (Table 3).
As shown in Table 4, from 1995 through 1999 APD reported 40 hate crime incidents to the FBI. Almost three-quarters of these revealed racial or ethnic biasprimarily anti-black. Fifteen of the incidents were categorized as vandalism and eleven as intimidation. Of the incidents, 10 were possible felonies (9 aggravated assaults and 1 murder). Over the five-year period, 14 people were arrested in conjunction with these incidents. (The details of the 1999 incidents are discussed in the accompanying article Incidents Revealing Bias: Anchorage, 1999.)
Development of Hate Crime Statutes
The development of hate crime laws on state and federal levels has paralleled the development of the FBI statistical reporting program over the past decade. In fact, one of the first pieces of federal legislation directly addressing the hate crime issue established the federal data collection effort.
In 1990 the U.S. Congress passed the Hate Crimes Statistics Act, requiring the Justice Department to acquire data from law enforcement agencies nationwide on crimes manifesting prejudice based on race, religion, ethnicity, or sexual orientation. This act provided the legislative basis for the FBI reporting program. The Violent Crime Control and Law Enforcement Act of 1994 extended the scope of the earlier legislation to require reporting on crimes exhibiting a bias based on disabilities and also provided sentencing enhancement in federal crimes where bias has been exhibited.
In 1996, the Church Arson Prevention Act broadened federal jurisdiction to facilitate prosecution for attacks against places of worship, and increased penalties for such crimes. This legislation also made permanent the data collection effort established in 1990.
Despite this series of federal legislative acts, there are no specifically defined federal hate crimes; rather, as indicated above, the federal government can pursue sentence increases in cases in which bias motivation was exhibited. (In addition, civil remedies for victims of bias crimes may be available under federal law, although this has not been clearly established in the courts.)
Although some states have enacted statutes which define and prohibit specific hate crimes, most have chosen to increase penalties for crimes in which a bias motivation was present. In general, these sentence-enhancer laws have been better able to withstand constitutional scrutiny in the courts.
Rather than defining hate crimes as specific offenses, the Alaska criminal code, like that of most other states now, provides for the possibility of a more severe sentence for offenses in which certain types of bias motivation were present. Under AS 12.55.155, which de-fines sentence aggra-vators, the presumptive term for a felony offense may be increased if a defendant has know-ingly directed the conduct constituting the offense at a victim because of that persons race, sex, color, creed, physical or mental disability, ancestry or national origin. (Sexual orientation bias is not covered by this aggravating factor.) The existence of such bias can be argued as an aggravator during the sentencing phase of a criminal trial, and, if found by the judge, can result in a more severe sentence. No precise data are available for how often or in what types of cases the prosecution has argued the existence of this aggravating factor.
The constitutionality of the range of state statutes on hate crimes has not yet been fully established. A number of state statutes, both ones establishing specific hate offenses and ones providing for increased sentences for bias-motivated offenses, have been struck down in court challenges but others have withstood scrutiny, including at the U.S. Supreme Court level. In general bias crime statutes can raise freedom of speech and due process considerations.
The primary sources for information presented in the previous article were the Federal Bureau of Investigation, the Bureau of Justice Assistance, and the Anchorage Police Department.