Hateless Hate Crime at Rutgers?

The criminal trial of Dharun Ravi commanded national attention and focus on our controversial hate-crime laws. The issue was whether Ravi spied on his Rutgers roommate, Tyler Clementi, and whether he spied because of prejudice against homosexuals generally and against his gay roommate in particular. Ravi’s conviction last Friday on the most serious charge against him, “bias intimidation,” carries with it a possible sentence of ten years in prison. It was not for homicide. The jury certainly knew that Tyler had jumped to his death from the George Washington Bridge, a few days after 18-year-old Ravi used a web cam to observe his roommate’s tryst with a 28-year-old man in September, 2010.

Legally, however, Tyler’s suicide was irrelevant to the case. The jury should have considered only whether or not Ravi was guilty of a hate-crime: “bias intimidation.” Like 45 states and the federal government that have hate-crime laws to increase the penalties for other crimes, New Jersey has an Ethnic Intimidation Act. Nevada, for example, adds 25 percent to a prison sentence for felonies judged to be hate-crimes, but New Jersey’s hate-crime law tops the list for extra punitiveness. One problem is that hate-crimes, like beauty, are in the eyes of beholders. Did Ravi’s spying constitute “bias intimidation’?

After nearly three weeks of testimony in Ravi’s trial, the prosecutor and the defense attorney summarized their differing interpretations of the undisputed facts in the case, and Judge Berman asked the jury to weigh the fifteen charges and reach a verdict. The evidence consisted mostly of hundreds of emails, Facebook posts, text messages, instant messages, and Twitter feeds sent by Ravi to his friends and their replies. They were short, frequently contained the word “fuck” for emphasis, as well as abbreviations like “wtf” and “lol” that teenagers presumably understood but might have confused some jurors. The prosecutor called several students who lived in the same dormitory as Ravi and Clementi and knew about the web cam or actually saw Clementi with M.B., his visitor – for a few seconds; none of them heard Ravi express hostile feelings about homosexuality or homosexuals. Ravi did not testify; his attorney apparently did not feel that his testimony was necessary. Ravi and his lawyers apparently believed that the prosecutor had demonstrated no convincing evidence of “bias intimidation.” To the contrary, Ravi’s attorney pointed out that Ravi had sent a conciliatory email to Tyler when he realized that Tyler wanted to change roommates after learning of the spying. The email that Ravi wrote to Tyler, sent before he realized that Tyler had already committed suicide, shows that Ravi did not hold Tyler’s homosexuality against him and wanted to keep Tyler as his roommate:

I’ve known you were gay and I have no problem with it. In fact one of my closest friends is gay and he and I have a very open relationship. I just suspected you were shy about it which is why I never broached the topic. I don’t want your freshman year to be ruined because of a petty misunderstanding, it’s adding to my guilt. You have a right to move if you wish but I don’t want you to feel pressured to without fully understanding the situation.

The jury showed confusion about what “bias intimidation,” meant, although it brought in a unanimous verdict of guilty on all fifteen charges. Shortly after it began its deliberations, the jury asked Judge Berman to clarify the definitions of “intimidate” and “purpose” as they related to the charge of “bias intimidation.” Judge Berman replied, “A person is guilty of the crime of bias intimidation if he commits an offense with the purpose to intimidate an individual because of sexual orientation.” This answer apparently satisfied the jury, although some law professors have expressed the opinion that appellate judges and perhaps the Supreme Court will ultimately have to decide whether Ravi used social media as many immature 18-year-old pranksters would, not like a hostile homophobe, or whether New Jersey’s hate-crime law dealt appropriately with his criminal behavior. Even State Senator Joseph Vitale, who helped pass the law ten years ago, now is willing to rethink provisions of the law in the light of new social media technology.

Singling Out Bias from a Welter of Factors

Two New Jersey cases, prosecuted long before the Ravi case, show why criminologists are not enthusiastic supporters of hate-crime laws. Their problem with hate-crime laws is that such laws single possible ethnic prejudice out of many factors judges should take into account in deciding how much prison time to give a convicted offender. Consider the following two cases:

Case 1. Thirty-five-year-old Michael Melchione was sentenced on July 14, 2000, in Elizabeth, New Jersey, to four years in prison, with no chance of parole until he served two years, for throwing large rocks at several businesses in Elizabeth owned by Jews; he had also assaulted a Jewish woman. The Ethnic Intimidation Act overrode the discretion of the judge to take into account, in deciding on the appropriate punishment for Melchione’s offense, the degree of viciousness he evinced, his previous criminal record, his employment and family history, and his illness (schizophrenia). Because of the schizophrenia, Melchione was probably guilty of symptomatic misbehavior rather than targeting Jews in particular. An assistant Union County prosecutor said that, without the element of religious bias, Melchione would have faced 180 days in a county jail or possibly probation.

Case 2. On June 26, 2000, the U.S. Supreme Court struck down part of New Jersey’s Ethnic Intimidation Act because the judge, not the jury, decided that the defendant had been motivated by ethnic prejudice. In this second case, Charles C. Apprendi Jr., a former pharmacist in Vineland, New Jersey shot at the home of a next-door black family in 1994, while drunk. The Harrell family had just moved into a previously all-white neighborhood. No one was injured, but Apprendi received a 12-year prison term for his crime; the maximum possible sentence would have been 10 years had the judge not considered it a hate crime. Apprendi had served five and a half years of his sentence when the Supreme Court decided that the Ethnic Intimidation Act should have allowed a jury to decide whether Apprendi had indeed committed a hate crime. Note that even without the Ethnic Intimidation Act, however, Judge Ridgway could still have imposed a 10-year sentence on Apprendi, the top of the range of penalties for possessing a weapon for an unlawful purpose. But apparently he had second thoughts about the severity of the penalty he had originally imposed in 1995. Rather than resentencing Apprendi to ten years, which would have been legal after the Supreme Court decision, he resentenced Apprendi, then 45, to seven years and urged the state parole board to take up Apprendi’s case as soon as possible. The Cumberland County prosecutor also supported a request by Apprendi’s lawyer that the board reduce Apprendi’s sentence to time served. Judge Ridgway did not explain why he was more punitive in 1995 than he became later. He was probably responding to the outrage of the victimized family. Crime victims are permitted to express in the courtroom their views on the appropriate sentence that the judge might impose. The black family whose house was fired on understandably favored the severest sentence possible. Six years later, the Hartell family still felt that a lesser sentence for Apprendi would be “a slap on the wrist.”

In the Melchione case, too, victims and victim-defense organizations pressured the court for harsh sentences. Charles Goldstein, regional director of the Anti-Defamation League of B’nai B’rith, was pleased by the four-year sentence given to Melchione. “This decision demonstrates unequivocally that those who commit bias crimes will go to jail,” he commented outside the courtroom.

Are hate-crime laws justified because judges are likely to give lenient sentences for crimes as unpopular as hate crimes are? No one seems to be saying that. On the other hand, hate crimes compress the range of penalties provided for the bulk of offenses, whereas a range permits appropriate judicial discretion. Hate-crime add-ons make the criminal justice system more arbitrary and, possibly, less fair. Since the Middlesex County jury convicted Ravi of “bias intimidation,” Judge Berman may feels impelled to impose a harsher prison sentence on Ravi than he usually gives to armed robbers and burglars. If so, the consequences of the Ethnic Intimidation Act will hardly be what the legislators who enacted it anticipated.

What should be done about hate crimes? Less.