The state decided to tackle the problem using a combination of community policing, sensitization, and even outright legislation: the Illinois Hate Crime Act (IHCA), which is summarized under the legislative instrument number 720 ILCS 5/12-7.1. There are many procedures and processes in place that are designed to ensure that a fair and accurate outcome is delivered. This is a response to the historical and long-standing abuses in the criminal justice system, which ensured that many culprits of hate crimes got away with them. At the height of the Civil Rights movements, the Ku Klux Klan was literally enforcing its own version of vigilante justice against those who were deemed to be racially inferior.
Understanding the Imperatives and Implications of the New Regime
Under the current regime, the state is obliged to undertake prosecutions of hate crimes. At the same time, the old leeway for private civil prosecution is left intact by implication. It is, however important to note that bringing a successful private prosecution is a tall order in the best of circumstances. An individual just does not have the resources and expertise that are required to handle such complex cases. The easiest route, perhaps, if the state is not prosecuting to your satisfaction, is suing for damages because the standards of proof are much lower than those of a criminal prosecution.
The court has been given a number of choices for dealing with the guilty parties once a conviction is secured. It can, for example, secure damages, which can be upgraded to punitive ones depending on the circumstances of the case. The court can also order the defendant to pay costs and additional fees. Where appropriate, injunctive relief is offered to prevent a further injustice from being committed. It is important to note that the private civil case is possible even when the defendant is a public authority. In practical terms, the public authorities tend to take care to ensure that their prosecution is extremely difficult.
Definitions of Hate Crime
At the heart of the prosecution or defense strategy are the constituent elements of the definition of the crime. A hate crime is triggered by feelings or motivations of bigotry directed at people because of their presumed characteristics such as race, color, nationality, disability, and sexual orientation. The ambiguity of the definitions has sometimes been abused during the preparation of a defense to the extent that an otherwise guilty party might get away with redefining their behavior completely. A case in point consists of references to the freedom of expression and opinion. This then raises constitutional matters and political sensitivities about which the defending attorney and prosecutor must be completely conversant.
It is often the case that the prosecutor takes on the defendant in the terms of their definition. For example, they may want to first show that a criminal assault was committed, ensuring that at the minimum, the defendant will be punished in some way. Then, the next stage is to prove that the motivation is consistent with hate crime. The courts will typically consider the characteristics, attitudes, and utterances of the defendant to ascertain whether he or she was motivated by hate as defined in the law. For professional counsel on your hate crime case, contact David Freidberg Attorney at Law at 312-560-7100.
(image courtesy of Antonio Grosz)