Combating hate crimes against Sikhs: a multi-tentacled approach.

I. INTRODUCTION

Four days after Al Qaeda terrorists launched their audacious, horrible hijack attack on the World Trade Center, Frank Silva Roque murdered Balbir Singh Sodhi. (1) Roque drove away from the gas station that Sodhi owned and tried to gun down a man of Lebanese descent and an Afghani family. (2) Sodhi was a Sikh. (3) A father of three was murdered by a man who tried to justify his actions by stating, "I stand for America." (4) Sodhi's murder attracted international attention, (5) yet hate crimes in America have not abated against people who are mistakenly thought to be Muslim terrorists. (6) Sikhs are not Muslim, Arab, terrorists, or from the Middle East, yet they are being targeted for hate crimes in response to the September 11, 2001 terrorist attacks conducted by Al Qaeda. Due to many of the attacks on Sikhs being a case of mistaken identity, their experiences with hate crimes are often categorized along with Muslims and Arabs. Yet, their identity, heritage, and experience are distinct.

When the United States Congress relaxed immigration quotas after 1965, (7) American culture gained a more Asian flavor. Included in the group of immigrants who took advantage of the quota reform were the Sikhs, who primarily came from the Punjab state of India. (8) Sikh men are noted for their turbans (9) and full beards; both of which indicate spiritual devotion and temporal discipline worthy of keeping with the Khalsa, or Pure Ones. (10) Since the terrorist attacks of September 11, 2001 videos and images of Osama bin Laden have created an air of hostility towards Sikhs, with an uninformed American public equating the appearance of Sikh men with bin Laden's beard and Afghani-style turban. (11) This mistaken identity has proven deadly for Sikh men.

This Note explores how life in America has changed for Sikhs since September 11, 2001, specifically addressing the rise of hate crimes. It analyzes the shortcomings in current hate crime legislation and policing, discussing strategies for statute drafting, police education, and public officials' role in preventing and punishing hate crimes. Part II provides background information on Sikhism and explains the cultural and religious significance of the distinctive appearance of Sikh men. Part II is not meant to be a substitute for a thorough analysis of Sikhism's unique place in the intellectual and spiritual history of the world, but is mainly intended to provide an overview of an ethnic group that only recently came to America in any large numbers and still remains a small minority. Part III describes the history of hate crime legislation and analyzes its role within criminal jurisprudence. This is not intended to refute the critics of hate crime legislation but rather to illustrate the historical position of hate crime legislation and to be a general justification for their place in modern jurisprudence. Part IV confronts the practical problem of hate crime legislation: policing them. For hate crimes to be properly addressed through law, the men and women who respond to the crimes must be trained and a relationship between police and the vulnerable communities must be established. Part V addresses the difficulties and boundaries that exist in trying to create a well-worded statute against crimes of bias. Parts VI, VII, and VIII explore solutions in the arenas of criminal statutes, law enforcement, and public leadership, respectively. Civil remedies, an area of great potential for action against hate, are not examined in this Note, which confines its analysis to the interplay among the state, the victims of hate crimes, and the perpetrators of hate crimes.

II. PERTINENT BACKGROUND ON SIKHS AND SIKHISM

There is no exact date of the founding of Sikhism, but it begins with the life of Guru Nanak, born in 1469 in a part of Punjab that is now in Pakistan. (12) Guru Nanak was a Hindu by birth, but taught that all religions were equal and that there is only one god, who can be known and understood directly. (13) In a time of oppressive caste-ism, sexism, sectarianism, and a particularly bloody version of Islamic fanaticism, (14) Guru Nanak provided a rhetoric of reason, moderation, and humanism that gave him a popular following. (15) He was followed by nine more Gurus, who continued the tradition of monotheism, direct knowledge of the divine, and rationalism. (16) All of the Gurus rejected ritualism, fasting, asceticism, and human and animal sacrifice and furthered the progressiveness, egalitarianism, and multicultural tolerance that were the hallmarks of Guru Nanak's teachings. (17)

The Mughal emperor Aurangzeb was a brutal tyrant (18) known for imposing a harsh interpretation of Islamic Law upon the parts of India under his control. (19) The seventh Guru, Guru Hari Rai, in the pragmatic spirit of Sikhism, declared that it was better to rise up against tyrants than to live under oppression, thus breaking with the Hindu tradition of ahimsa, or nonviolence. (20) The tenth Guru, Guru Gobind, unified the Sikhs under one identity, and resolved a duality between soldiering and the spiritual lifestyle by justifying defensive warfare. (21) The identity he created was called the Khalsa, and membership of this identity is marked by the uniform, or the "five Ks": a steel bangle (kara), uncut hair (kesh), a comb (kangha), long underwear (kaccha), and a sword (kirpan). (22) The "five Ks" each have spiritual significance, must be kept by both men and women, and in sum, constitute a military uniform for defensive war. (23) Guru Gobind also stated that the Guru-hood would forever reside in the collected poems and sayings of the Gurus and other spiritual luminaries (including Hindus and Sufis), which is known as the Guru Granth Sahib. (24)

For men (and some women, too), the turban wraps uncut hair, gives a tidy appearance, and has important cultural significance. (25) For some, the turban is regarded in the same manner as a garment that covers the body. (26) While the turban is not in itself a declared sacred symbol, it is so closely associated with the hair that it is conflated with the symbolic importance of the uncut hair. (27) Indeed, it is a great indignity for the turban to be treated disrespectfully in any manner. (28)

There were perhaps as many as three thousand Sikhs in the United States before 1920, (29) but immigration from Asia was barred between 1918 and 1946, and strictly limited until 1965. (30) Today there are over 500,000 Sikhs in the United States. (31) They have prospered in all walks of American life, but due to their distinctive appearance they are often perceived as foreigners. (32)

III. HISTORY AND BACKGROUND OF HATE CRIME LEGISLATION

Laws that punish hate crimes are relatively new to American jurisprudence. (33) The aftermath of the Al Qaeda attacks on September 11, 2001 has emphasized the important role that hate crime laws play in the criminal justice system, both to deter and to punish those people who are motivated by prejudice to commit criminal acts. (34) Perhaps due to their recency, hate crime laws have weaknesses and have not managed to achieve noteworthy efficacy in deterring hate crimes. (35)

A. The Evolution of Discrimination Law

Discrimination law in America is derived from a specific context and a set of historical facts beginning with the abolition of slavery. Hate crime laws evolve out of a chain of legislation designed to answer an increasing disapproval of bigotry and recognition of the harms caused by identity-based discrimination. Slavery ended with the Civil War, but there was a general failure to grant Blacks equal rights in any sphere, (36) despite the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments and the civil rights laws. (37) Then, a century later, Brown v. Board of Education, desegregation, and the Civil Rights movement gave force to the desire for equality. (38) Since the 1980s, almost every state has enacted some form of hate crime legislation. (39)

As a sample of hate crimes in America, the 2003 FBI Hate Crimes Statistics documents 7489 hate crime incidents with 9100 victims and 6934 offenders. (40) Seventeen thousand law enforcement agencies participate with the FBI statistics gathering program, with a total jurisdiction covering eighty-two percent of the U.S. population. (41) There are crimes against individuals and crimes against property, ranging from murder to auto theft. (42) The 2003 figures are just slightly higher than 2002 (even while the 2002 figures covered a larger total jurisdiction), indicating that hate crime laws and their implementation are not abating the occurrence of hate crimes, despite the passage of time since the September 11, 2001 attacks. (43) Furthermore, these numbers reported are highly suspect, with only a minority of jurisdictions reporting any hate crimes at all. (44) Also, police themselves believe that hate crimes are underreported. (45)

B. Osama bin Laden's Legacy of Violence in American Society

September 11, 2001, marked the beginning point of a new era of American hate crime. Thereafter, Sikhs (especially the men) have been the targets of hate crimes due to mistaken assumptions of their identity. Americans saw Osama bin Laden on television, wearing an Afghani turban and sporting a long beard, praising the terrorists who slammed planes into the World Trade Center, the Pentagon, and a field in Pennsylvania. Angered by the terrorist attacks, (46) the nation went to war against the Taliban in Afghanistan who were shown on television sporting the same turbans as Osama bin Laden. (47) Since the terrorist attacks, over six hundred identity-related crimes were committed in the backlash against Muslims and other people mistaken for Muslims, such as Sikhs. (48) Osama bin Laden's violence against America exposed an underlying internal social tension.

The Sikh religion requires its adherents to wear markers of the faith. (49) For men, that means keeping a full beard and wearing a Punjabi turban. (50) Sikhism is not a sect of Islam, and bears very little resemblance to it. (51) In fact, the uniform of the Sikh was established in response to tyranny and terrorism by Muslim overlords. (52)

Sikhs, due to their small numbers, are relatively obscure in America. (53) Consequently, when popular anger boiled over after the terrorist attacks of September 11, 2001, the Sikhs were the most visible target. (54) Today, they are still being attacked by strangers for no other reason than for having been mistaken for Muslim terrorists (or due to general anti-immigrant prejudice inflamed by the terrorist attacks). (55) Consequently, these attacks should be classified as hate crimes.

It is difficult to determine the exact impact that hate crimes are having on the Sikh community. The Sikh religion is not specifically listed in the FBI Hate Crimes Statistics, and Indians are grouped in the broad category of Asian/Pacific Islander. (56) Furthermore, it is not clear from these Statistics how crimes against Sikhs who are mistaken for Muslims are categorized because Sikhs (as well as Muslims) may be targeted for their religion, race, or the broad category of "other." (57) What is known, however, is that these hate crimes are happening at such an alarming rate so as to draw Congressional …