Do We Really Need New Anti-Asian Hate Crime Laws?
In March, a man opened fire at Young’s Asian Massage, just north of Atlanta. Later, he shot up two more Atlanta-area Asian spas. All told, eight people were killed. Six of them were Asian women.
Was this a hate crime?
Clearly, it targeted a certain sort of business. In the immediate aftermath, people chalked the killings up to anti-Asian sentiment. Many were quick to implicate the Trump administration’s anti-Chinese rhetoric during the COVID-19 pandemic. After all, the shootings came amid a much-discussed uptick in alleged anti-Asian crimes. But neither the Atlanta massage parlor murders nor the broader narrative around anti-Asian incidents is so easily categorized.
The Atlanta shooter—Robert Aaron Long—told police he struggled with sex addiction. He was a devout Christian who felt guilty about visiting sex workers at Asian spas, friends said. Were Long’s hateful acts really about race? Or were they more about misogyny—a man lashing out at women for inspiring lust in him? How significant is the fact that the victims were largely Asian women? Was his true bias against sex workers?
In one sense, none of this makes a difference. Eight lives were senselessly lost. Long’s acts were morally heinous whether driven by anti-Asian racism, general misogyny, resentment of sex workers, or total randomness. And hate crime or not, murder is a serious criminal offense, punishable in Georgia by life in prison, with the possibility of life without parole or even execution.
Yet if Long was motivated by anti-Asian or anti-female bias, this would be considered, under Georgia and federal law, a hate crime. If he was motivated by hatred of sex workers, it would not. This ambiguity perfectly encapsulates the tangled logic behind U.S. hate crime laws.
Multiple high-profile bias crimes have gained attention in recent years: the 2020 shooting of Ahmaud Arbery, an unarmed black man killed by three white assailants; the 2019 massacre of nearly two dozen people at an El Paso Walmart by a 21-year-old white man who told police he was targeting Mexicans; the 2018 shooting at Pittsburgh’s Tree of Life synagogue that killed 11 congregants.
Looking at these tragedies, which often splay out in wall-to-wall media coverage for days or even weeks, it’s easy to understand the emotional appeal of hate crime laws. But there is no solid evidence that such laws have a deterrent effect on hate-driven attacks. And as hate crime statutes have expanded, they have increasingly ended up penalizing people for getting mouthy with cops or otherwise punishing pure speech in violation of the First Amendment. Meanwhile, media coverage of hate crimes and “awareness” campaigns around them tend to distort Americans’ perceptions of the true frequency of bigotry and violence, exacerbating divisions and stirring up fear while giving strength to political agendas that threaten civil liberties and serve to uphold status-quo power. Hate crime laws might feel good. But it’s far from clear that they do good.
Constructing a Hate Crime Epidemic
Crimes rooted in bias, prejudice, and identity-based hate have always existed, and too often they were greeted with insufficient concern. Attention to such crimes grew throughout the 20th century in tandem with the civil rights movement. But it wasn’t until the 1980s that the concept of “hate crimes” took off as a special category of criminal offense with enhanced sentencing possibilities.
The first state hate crime laws were passed in Oregon and Washington, based on model legislation drafted by the Anti-Defamation League. By 1992, most states had them. At the federal level, the Hate Crimes Statistics Act of 1990 required the Department of Justice to tally up hate crime data from state and local law enforcement. More federal hate crime statutes were passed in the 1990s under President Bill Clinton.
The early laws focused on racial and religious motives, but as the ’90s wore on, interest groups began lobbying to expand the definition of what could legally be called a hate crime. The Violence Against Women Act—authored by then–Sen. Joe Biden and eventually passed as part of the 1994 crime bill—said crimes of violence against women were a form of hate crime that robbed women of their civil rights. Soon, activists were pushing for protections based on sexual orientation.
The latter effort was deeply intertwined with the 1998 murder of Matthew Shepard, a gay college student in Wyoming. The 21-year-old’s brutal killing at the hands of two young men—Russell A. Henderson, 21, and Aaron J. McKinney, 22—would be a driving force in federal hate crime expansion efforts for more than a decade. “Matthew’s death, I hope, will bring about a better and deeper understanding of hate-crime laws,” Elizabeth Birch, executive director of the Human Rights Campaign, told The New York Times in the days following his death.
Police said from the outset that Henderson and McKinney’s primary motive was robbery. “But investigators also said Mr. Shepard’s sexual orientation was a factor,” the Times reported in October 1998. “They said the suspects lured Mr. Shepard from the bar by saying they, too, were gay.” Some accounts indicated one of the killers had been embarrassed when Shepard made a pass at him.
In addition, Wyoming had recently failed to pass proposed hate crime legislation. One of the first people to talk to the national press about the murder was a college instructor and friend of Shepard’s named Walt Boulden, who drew a link between the failed legislation and the murder.
That was enough to make Shepard a symbol for anti-LGBT violence and a poster child for expanding hate crime statutes. Celebrities including Ellen DeGeneres, Elton John, Madonna, and Barbra Streisand got involved. “While new laws are unlikely to cure the hate crime problem,” a Southern Poverty Law Center statement said, “one thing seems clear: They will draw the nation’s attention to it and make an important statement.”
Shepard’s murder was a textbook example of what Robert Blanchard, writing in Reason in 1999, called the “hate crime news formula,” in which a coalition of media, activists, academics, and politicians—”all of whom have vested interests in fomenting a sense of continuous social crisis”—descends on high-profile tragedies “to suggest that the United States is a seething cauldron of hate directed at members of unpopular groups.”
Throughout the ’90s, the idea that America was experiencing an “epidemic” of hate crimes had been building. The San Francisco Chronicle reported in 1993 that “hate-motivated violence is spreading across the United States in ‘epidemic’ proportions.” Democratic Lieutenant Gov. Leo McCarthy announced “an epidemic of hate crimes and hate violence rising in California.”
“Hate crime is so often referred to as an ‘epidemic’ that one might well believe that there is a solid foundation of facts documenting that this social problem is out of control and getting worse,” wrote James B. Jacobs and Jessica S. Henry in “The Social Construction of a Hate Crime Epidemic,” published in the winter 1996 volume of the Journal of Criminal Law & Criminology. But no one, they noted, had actually established facts to back up the narrative, and there was ample evidence to the contrary.
“It is impossible to prove the null hypothesis: there is no hate crime epidemic,” Jacobs and Henry wrote. But the data used as evidence for such an epidemic “can be used to tell a very different story than that which prevails in the media, government, and the legal academy.” In other words, it wasn’t clear there was a hate crime epidemic even then. The same metrics show a drop in such crimes since the publication of Jacobs and Henry’s paper. Yet the same dire warnings about a rising tide of hate have persisted.
Stopping Anti-Asian Hate
The first half of 2021 was awash in stories about an alleged spike in bias-based actions against Asians in the United States. From TV ads to newspaper articles to the halls of Congress, stopping “Asian hate” became a major rallying cry. A New York Times headline from April 3 conjured “swelling anti-Asian violence” in America. “Covid ‘hate crimes’ against Asian Americans on rise,” warned the BBC, while Voice of America reported that “Hate Crimes Targeting Asian Americans Spiked by 150% in Major US Cities.”
The narrative was based on a grain of truth: In the early days of the COVID-19 pandemic, Asians do seem to have faced an increase in verbal harassment—and occasionally worse—in some U.S. cities. But increases were far from consistent, and overall incident numbers remained quite small.
For instance, New York City saw an 833 percent rise in anti-Asian incidents between 2019 and 2020, according to the Center for the Study of Hate and Extremism at California State University, San Bernardino (CSUSB). That certainly sounds dire. Yet the leap represents a rise from three incidents in 2019 to 28 incidents in 2020—in a city with an Asian population of 1.2 million overall.
Many reports of a supposed surge in anti-Asian animosity relied on data from CSUSB, which culled police records to assess bias-based incidents in 16 big U.S. cities. It found only one (Washington, D.C.) with a decline in anti-Asian incidents and one (Chicago) with no change. Data from the other cities looked grim: Anti-Asian incidents were up 150 percent in San Jose, 133 percent in Boston, and 114 percent in Los Angeles.
Yet expressing the data in terms of the percentage increase can be misleading. The raw numbers went from four to 10 in San Jose, six to 14 in Boston, and seven to 15 in Los Angeles. Cleveland, Dallas, and Philadelphia each saw six incidents in 2020, up from zero to two in 2019. Cincinnati and San Diego went from zero to one; Phoenix from two to three; San Francisco from six to nine; and Seattle from nine to 12.
Another much-cited figure came from a group called Stop AAPI Hate, which reported a staggering 3,795 hate incidents against Asians and Pacific Islanders between March 19, 2020, and February 28, 2021. But unlike the CSUSB study, this figure came from self-reports to the group’s hotline, not police records. And its reporting went far beyond potentially criminal incidents.
The Stop AAPI Hate tally lumps together physical attacks and serious crimes with verbal insults, discrimination, and “shunning.” If someone crossed the street or moved aside when an Asian person walked by, and
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