Yasmin Nair

Counterpoint: Loving Hate: Why Hate Crimes Legislation is a Bad Idea

Filed By Yasmin Nair | February 08, 2009 2:30 PM | comments

Filed in: The Movement
Tags: hate crimes against LGBT people, hate crimes legislation, love, loving hate, prison industrial complex, transgender

The Matthew Shepard Act (H.R. 1592) would expand the 1969 United States federal hate-crime law to include crimes motivated by a victim's actual or perceived gender, sexual orientation, gender identity, or disability. The bill also requires "the FBI to track statistics on hate crimes" against transgender people.

Increasingly, public opinion appears to be shifting in favor of the Act. The fact that Barack Obama has pledged his support for the expansion of the bill and that many Republicans are against it makes it seem like this is a fairly simple battle between the forces of good and evil.

But if you read, for instance, the HRC or NGLTF descriptions of the proposed amendment, there's no discussion of the consequences of the Act. How, you might wonder, is this Act to be put into practice? Who benefits from it being in place? Does it really end bigotry and intolerance? And does it really end hate?

In their book, Hate Crimes: Criminal Law and Identity Politics, James B. Jacobs and Kimberly Potter point out that, strictly speaking, "hate crime" isn't about hate, "but about bias and prejudice." Essentially, the term "hate crime" refers to criminal conduct motivated by prejudice. I recommend the book to anyone interested in reading a nuanced appraisal of the real consequences of hate crimes legislation. Drawing partly on their work and on my own research over the years, I'm going to quickly detail the reasons why hate crimes legislation is a bad idea. Later work of mine will look at specifics of the law and statistics. For now, I offer some broader reasons why hate crimes legislation is a bad idea.

Penalty Enhancement

Hate crimes legislation is designed to provide penalty enhancement (something that most of its supporters don't dwell upon). In short, the murder of an individual is considered more heinous if the murderer commits the crime on account of a demonstrated prejudice against a particular group. So, if someone yells "fag," during a murder, he or she will see more years in jail and even possibly the death penalty.

There are several problems with this. First is the murky question of how to discern one type of hatred, say against gays, from other forms of hatred that might be simultaneously felt during the commission of a crime - say, against someone who has more money than you, has "stolen your spouse," etc. Second is the issue of why and how we determine that one particular kind of prejudice/hatred is somehow worse than others. And third, how do we decide how many more years are worth adding on to a sentence because of the nature of the hate/prejudice?

All Victims Are a Protected Group

I think Jacobs and Potter put it best: "...when it comes to crime, all victims are a protected group. Why should some victims be considered more protected than others?" We could also extend that, as they do, and ask: Does hate crimes legislation do anything more than punish ideology? Again, from Jacobs and Potter, "Hate Crime" is a social construct. ... it focuses on the psyche of the criminal rather than on the criminal's conduct. It attempts to extend the civil rights paradigm into the world of crime and criminal law."

In other words, as they also point out, the language of "hate crimes" also emerges from the language and agenda of civil rights and affirmative action legislation, which has to speak in terms of "protected groups." The problem with hate crimes legislation is that we're attempting to right a societal problem, the very real and demonstrable forms of bigotry and prejudice against specific groups, with the enactment of legislation which calls for a system of surveillance and punishment that only deals with those issues from the perspective of crime and punishment.

No one can deny that particular groups are in fact treated with discrimination and even violence. But rather than ask how about how to combat such discrimination and violence, we've taken the easy route out and decided to hand over the solution to a prison industrial complex that already benefits massively from the incarceration of mostly poor people and mostly people of color. It's also worth considering the class dynamics of hate crimes legislation, given that the system of law and order is already skewed against those without the resources to combat unfair and overly punitive punishment and incarceration.

Let's be honest: We already think that bigots and "haters" are just "low-class punks and thugs" anyway. It's easy to put a twenty-year-old Pilsen Latino in jail for six to ten years because he yelled "fag" while stealing a gay man's wallet. Does that solve the problem of homophobia and bigotry in the boardroom? Do we even have ways to discern and address the latter?

Hate Crimes Legislation Is Ineffectual

Which brings me to the issue of how utterly ineffectual hate crimes legislation is in terms of addressing the very real violence against the very bodies it claims to protect. Sure, we can find more ways to document harassment and violence against transgender bodies and to put people away forever for the same.

But what do we when the violence is committed by the system itself? What do we do with the case of Victoria Arellano, a transgender undocumented immigrant who died shackled to her bed in Immigration and Customs Enforcement detention after being denied her AIDS medication? Does the system that brought about her death have a way of accounting for its own "hate crime?"

Hate crimes legislation has a murky history, which I won't go into here for reasons of space. But it's worth remembering that one reason it's so popular today is that it's often the only way for some marginalized groups to claim recognition as a group, and to seek redress for the very real violence their members experience in everyday life.

At this point, for instance, the issue of violence against the transgender community is seen as a real threat. But do we address that violence by helping the state to perpetrate more violence against the most marginal who already fill our jails? Or do we think of better ways to address the consequences of bigotry and prejudice?

We already have punishments in place for crimes, even the most violent ones. Whom does it benefit to enhance penalties for the same? Mandatory and draconian drug laws have done nothing to impede drug use, and only serve to increase the scope of surveillance against the poorest neighbourhoods, where laws against even the casual use of marijuana are used to haul the most marginal into jail.

Is jailing people for their prejudice really going to curtail bigotry and prejudice? Or will it just end up policing thought and filling the coffers of the prison industrial complex?


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I used to be a big proponent of hate crimes laws. One of the things I learned by arriving early for a legal writing course and overhearing the lecture for some criminal justice course was that police agencies were designed and trained to regulate behavior. Their designed role and function had little or nothing to do with morality. Morality was the arena of the family, church, or some other social agent.

I hear a lot about symbolic value. The federal code isn't the place for symbolic gestures. And I think it sets a dangerous precedent. Thought crimes lead to thought police.

So since this is a debate, I guess I rise in support of Yasmin's proposition.

Hate crimes enhancements are because a hate crime is an act of terrorism and its victims, by intent, are entire community. A hate crime is not directed against the person attacked, it is directed against the community.

In any case, if you want to argue against hate crime laws, argue for repealing all of them, not for including GLBT people in them.

Kathy,
Getting rid of *all* HCL is certainly implicit in my argument.
And I do wish you wouldn't use the word "terrorism" so lightly. This is exactly the point: post 9/11 in particular, HCL is just another way to increase systems of surveillance upon more communities in the guise of security.

What do you do when the police refuse to act, refuse to admit a crime took place?

I was assaulted amidst someone trying to rape me once (Well, once they found out what I was, it switched from rape to assault, maybe even murder, he wasn't happy to have been trying to rape a transsexual).

Legally on all my identification I was male. So the police just laughed at me, it was just a 'bar scuffle' as far as they were concerned, especially when I said he tried to rape me. That was HYSTERICAL, "Wait, he tried to rape a dude?" was the police's response.

Not worth their time or effort, so they refused to press any charges and when I got upset, as I will admit I became a bit hysterical at that point, they told me to shut up or they would arrest me for being a prostitute.

"There are several problems with this. First is the murky question of how to discern one type of hatred, say against gays, from other forms of hatred that might be simultaneously felt during the commission of a crime - say, against someone who has more money than you, has "stolen your spouse," etc."

Yet - these distinctions are well within the abilities of the courts & juries to discern when they have a defendent accussed of killing a police officer, when differentially limiting their free speech in front of a woman's health clinic then it is in front of City Hall, when the victim is singled out due to their religion - or when the action is someone not being hired due to their financial status (credit check say) and not being hired due to their race.

I have no knowledge of a crime of "stealing someone's spouse" - so - one wouldn't be able to apply an enhanced penalty, count statistics, add additional resources or take jurisdiction from a local municipality for a crime that doesn't already exist regarless of the motivation of the defendent.

Each of these requires a court to enter murky areas & to consider the intent of a defendent to some degree. Nearly every crime does - you shot someone - is it murder? Not if it was an accident or ifyou didn't intend to murder or lacked mental capacity - then it could be manslaugter. Due to the intent of the defendent. Which the court must discern. The victim is just as dead - yet the defendent is charged differently due to the values placed by the legislature on their motivation.


"But do we address that violence by helping the state to perpetrate more violence against the most marginal who already fill our jails?"

I don't know what you mean here. Do you have evidence that the majority of hate crimes are perpetrated by the people covered by the legislation?

Case in point - Nizah Morris - an African American transwoman died of a homicide under very curious circumstances here in Philadelphia. The community has had very strong concerns over the involvement of the police in this case. There is no hate crimes law - so - there is no place to take this concern. You have no other jurisdiction to raise your concern to.

When the local police advisory commission looked into whether there was any police misconduct - the file was lost somewhere bewteen the Police & the DA's office. No one knows where or how.

The DA has reconstituted the file to some extent - but because of local law - the police advisory commission can't get a copy from the DA - only from the police. And the DA won't release it back to the police.

So - yes - a hate crimes law would help just a bit here. We could ask the FBI or State to take over the case. And it wouldn't just help in this case - but to set a standard for all cases going forward & perhaps prevent more such incidents.


Kathy,
In the case you cite, HCL would do nothing to remedy blatant police corruption. There is a crime here: murder. We have laws on the books about that.

lacy panties | February 8, 2009 6:37 PM

Rheoryn, if the police are unwilling to charge your attackers with assault or attempted rape, what convinces you that they would be willing to charge them with assault or attempted rape as a hate crime? Hate crime legislation rewards the very people you are complaining about (police and prosectuors) by providing them with enhanced power.

I think the better focus for the community's political capital is to insist that LGBT victims of crime and violence receive the same protection as other victims rather than to construct an alternative system of "hate crimes."

I would actually like to hear more of your historical analysis behind why you consider hate crime legislation ineffectual. I gather that you mean that it hasn't helped redress systemic violence and bigotry.

However, I don't believe that marginalized people experience their oppression only at the systemic level. And I think that we should be able to pursue redress for individual oppression as well as effect the systemic violence.

Is it not possible to launch a multifaceted attack against oppression? Why can't we have stronger hate crime legislation, an effective ENDA, and social programming to support marginalized communities?

Also I'm disturbed by the way you kind of casually mention violence and harassment of trans bodies and then say but why aren't we focusing on such and such instead. I don't come to this blog much so I don't know you or your personal politics/beliefs and won't make allegations towards them or about you. But I really found that particular phrasing disturbing.

Altogether, I disagree with your conclusion but I am interested in your argument.

gogojojo,

Why would you assume that the state - especially one that came up with Guantanamo, would have any interest in alleviating oppression? What do you mean by "social programming to support marginalized communities?" And if hate crimes legislation was so effective, why have we seen an increase in the number of the incarcerated, and why are the vast majority of them people of colour?

I would not have been able to change the police that did not act, but I would have had much better legal grounds on which to act afterward. As it stands, I was told I pretty much had nothing to sue, or file over, because there was nothing that actually happened, no records etc. I was, and am, completely powerless over that event. My only recourse was to move away from there.

My best bet would have been to let them arrest me falsely, then sue, apparently. Otherwise I would not have been able to do anything. The town where they are? They don't want to be educated, they don't care, nothing will make them change their minds. They're set in their ways, there is nothing to do about it, only wait for their generation to die out.

I go back and forth on this specific hate crimes bill myself, but I worry that it puts power in the wrong hands. I read through the bill and see nothing that would give you individual recourse to sue the police. It might create a different political environment where you could pressure law enforcement for change, but that could be accomplished with a non-binding house resolution.

What the bill does is allow for more funding to police, allow for additional personnel to be made available, and allow for judges to give out higher sentences. The funding might give an incentive for the police to actively investigate hate crimes, but it's only a carrot and not a stick. Unless it's a really big carrot, those stuck in their bigotry probably wont change their ways.

What I'd love to see is a bill that creates a recourse for police misconduct. Or a bill that makes situations like yours a priority for internal affairs to investigate and punish. Or a bill that makes it a crime for police who are motivated by their bigotry to mismanage or not investigate a crime.

But of course the police are our national heroes. Giving them extra funding is probably what gets them and others on board with HR 1592. There simply isn't the political will to restrict, limit, or punish our national heroes -- even when they ignore, harass, or even beat up the "undesireables."

Having the ability to sue the police is not a federal issue. It's a state issue. The existing hate crimes bill that already exists doesn't include that either. If you want that, help the state pass one.

Bill Perdue Bill Perdue | February 9, 2009 1:10 AM

Yasmin, correct me if I’m wrong, but you seem to be saying that hate crimes legislation is just a reform and a piddling one at that. You say that these laws won’t, in an of themselves, end violence and that they don’t address the problem of systemic bigotry, which like racism, misogyny, anti-union sentiment and immigrant bashing are all built into the governing structure and instructions of US society.

If that’s true, and I agree with much of it, then for me the question is the utility of fights for reforms in the context of a society and government of the rich, by the rich and for the rich. Because make no mistake about it, people want to fight for an end to violence and discrimination. They want to fight to end job, housing and public service discrimination and they just wanna friggin get married. Even if they know that won’t solve everything and even if the fight is uphill.

GLBT folks, like unionists, blacks, immigrants and feminists are tired of it all and ready to fight. They voted for change but they’re going to get Clinton’s policies again. What’s different, radically different is that new fights for reforms will unfold in the context of an unwinnable and very unpopular war as the economy moves from recession to depression.

In that context the reformist fights of the over exploited and unequal groups (the absolute majority) in US society will trend towards definitive and (new word warning) ultimatist showdowns. The fight for reforms will become the fight for fundamental changes. Reformist fight can mobilize our communities.

If a war, a depression and a whole lot of really pissed off people whose hope for change is turning into rage isn’t a winning combination I’ll eat my hat. So I say if people want to fight for mere reforms lets join them and teach them that real change is fundamental change.

Bill Perdue Bill Perdue | February 9, 2009 3:07 AM

"governing structure and instructions of US society." should be "governing structure and institutions of US society."

Why do people panic whenever they hear "Hate Crimes Bill," then shift to "Murder is murder?" That is the weakest argument the opposition can throw at us, because people haven't learned how to counter that. Since the federal bill isn't designed to increase penalties, then that is a moot argument on that level. That's not the purpose of this bill and to even bring up "enhanced penalties" is nothing more than a smoke screen attempt to derail good legislation.

State level hate crimes bills are designed to increase penalties. So, how do you counter the "Murder is murder" mantra? Easy.

"Murder is indeed murder. I agree. However, (here in GA we have NO hate crimes law) if a person burns a cross on an African American's lawn, Georgia considers it nothing more than starting a fire without a permit. Defacing a synagogue with Nazi messages is simple vandalism. Scratching 'faggot' on someone's car is also vandalism. Those are hate crimes where murder has nothing to do with it."

You don't argue state hate crimes legislation at the top end of the scale. Hate crimes come in all forms, so shift it down to a level they can't come back on. On the Matthew Shepard Act, don't fall into the "enhanced penalties" argument because it's nothing more than trying to take control the conversation. Even bringing it up in the "Counterpoint" was wrong.

The cases you cite (cross burning, door scratching) are property crimes (vandalism). Has there ever been an instance where a court has held that these actions can be construed as crimes of violence? If not, they won't be covered under the federal hate crimes law as passed by the House (2007 Act).

The act does include a sentencing component - 10 years to life depending on the crime.

In any case, if the state is unwilling to call the offense a hate crime nothing is going to be done by the feds:


(b) Certification Requirement- No prosecution of any offense described in this subsection may be undertaken by the United States, except under the certification in writing of the Attorney General, the Deputy Attorney General, the Associate Attorney General, or any Assistant Attorney General specially designated by the Attorney General that--
`(1) such certifying individual has reasonable cause to believe that the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of any person was a motivating factor underlying the alleged conduct of the defendant; and

`(2) such certifying individual has consulted with State or local law enforcement officials regarding the prosecution and determined that--

`(A) the State does not have jurisdiction or does not intend to exercise jurisdiction;

`(B) the State has requested that the Federal Government assume jurisdiction;

`(C) the State does not object to the Federal Government assuming jurisdiction; or

`(D) the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence.

The difference is that judges and juries will favor one group over another and give lighter sentences. In the south, the male who beats up an elderly Southern Baptist white grandmother with 24 grandbabies will get a stiffer sentence compared to the one that beats up an elderly single black drag queen turning tricks at a nightclub. Hate Crime bill is to curb judicial bigotry. Justice is blindfolded in courthouse paitings and sculptures, but it isn't in reality. We sexual minorities need a law to compensate for bigotry.

lacy panties | February 9, 2009 10:03 AM

In the south, the male who beats up an elderly Southern Baptist white grandmother with 24 grandbabies will get a stiffer sentence compared to the one that beats up an elderly single black drag queen turning tricks at a nightclub.

So your solution is to make sure the guy who attacked the elderly grandmother gets a more lenient sentence than the one who beats up a drag queen?

No. You didn't read or understand my post. Equal sentences for both crimes with no partiality given to either. Justice should be equal regardless of religion or race. It isn't now due to prejudices. I am for the hate crimes bill.

steve tabarez | February 9, 2009 10:59 AM

Yeah, what a fence to on right now. For as a young person of color, I felt the sinister sting of words,threats,and intimidation. Yet, it was encumbered on me, to myself, speak out against that hatefulness. Yes, people, a self-responsibility component to even attacking the hatred, bias, and ugliness that others inflict and impose. People tend to laugh at me when i say to them that in many ways, my being a person of color prepared me for hatefulness, bias, discrimination, and tes, threats of violence,of being gay. and, yes, there is a part of me, as a person of color, that makes me question the issue of protection under special hate crime legislation because if I want to be seen as equal, and be treated accordingly, with all the rights, the responsibilities of everyone else, than to me, having such legislation seems to set us apart, makes us less than. In many ways, maikng me feel as some type of endagered species status, like I need a keeper, a protector, a gaurd, an overseer. That image evokes within me, the image of my people beholden to the PATRONES, and the hacienda owners, and our constant catering to the providers, and protectors. Maybe, the wrong image, or even a mixing of situations, but I see the parallel. I have seen waht hate has done in terms of violence, having been attacked for my being gay. And have seen others suffer the same plight. some I know have died. Yet, my brother being a police officer, the biggest problem in pusrsuing anyone who inflicts violence on another is getting the victim to follow a complaint, to see the process through, and though he knows many that he prompted to do so were in the LGBTQ community, where most decline. it begins with us, I think. Too many times, we wait until someone dies in a most heinous way, before we collectively decide to do something. Hate crime legislation won't change the fact that many times, we can help prevent hate crimes by filing charges every time it happens. And, yes, speaking out. On the other hand, in many ways, I am still open to changing my perpective for I know that some thing must be done. I just worry that many of us our looking to this legislation to do more than intended. This legislation cna't get us are full civil rights in and of, itself.

I think the idea of a debate feature here at Bilerico is great. I wish this one had focused more on the details of the actual proposed legislation. As it is, it is more of a debate about the merits of existing state laws, rather than the fairly different proposed federal law.

Generally criminal law is enacted and enforced by states. The proposed federal Act would not change this. It would not make all hate crimes federal crimes. Nor would it require state prosecutors to employ hate crimes charges. The primary features of the bill are:

- to give federal authorities greater ability to engage in hate crimes investigations that local authorities choose not to pursue;

- to provide $10 million in funding for 2008 and 2009 to help State and local agencies pay for investigating and prosecuting hate crimes;

- to require the FBI to track statistics on hate crimes against transgender people (statistics for the other groups are already tracked).
[Summaries from Wikipedia.]

These provisions are about making sure that crimes are investigated, prosecuted, and statistically tracked, not enhancing sentences.

A fourth major feature of the bill does have to do with sentencing enhancements: it would expand the grounds for charging hate crimes under federal law. But keep this in mind: federal hate crimes can only be charged in the small minority of cases where, for example, the attackers crossed state lines for the express purpose of committing the crime, or used a weapon that was proven to have crossed state lines, or the like.

In light of this limitation on federal criminal authority, this last is really the least important part of the bill. It and the larger federal criminal statute for hate crimes can be debated on their merits, but discussion of the Matthew Shepard Act should reflect that the bill contains provisions that are not about enhancing sentences. Critics of sentence enhancements - some of whose reservations I share - should be calling for stripping the federal criminal provision out, not opposing the bill as a whole.

I don't understand your argument that the hate crimes enhancement will do nothing
to address systemic discrimination. If that argument prevails, why not just abolish
the entire criminal code?

Jillian,

This is just silly. How do you make that leap?

As I made clear: we already have a criminal code that deals with crime, and enhancing penalties does nothing to lessen crime. Where in all that do you see me pushing for the abolition of the entire criminal code?

kudos

hate crimes are offensive for attacking the noble legal principle that all are equal under the law

now, i hope you'll turn your guns on the dreadful practice of allowing 'victim impact statements'-- as tho those victims w/out weeping families deserve less attention from the courts!

the entire 'victims rights' movement is antithetical to justice-- courts should enforce laws, not provide therapy!

Is Yasmin actually saying that Hat crimes protections are fine based on religion and race, but are not fine based on sexual orientation??

For argument's sake, assume that people who commit violent crimes place no value on human life; their victims or their own. What kind of deterrent is it to take away a bigger piece of their life with incarceration?

If the state made tort reforms and levied civil suits against violent offenders to compensate victims, their families and the municipal government for collateral property damage (if any).

Money could be collected for the lifetime of the convicted party through
* Bank account garnishment
* Liens
* Wage garnishment
until their debt to society is paid in full.

Five years or so in prison may be a certain threat to someone, but to that same someone, a loss of all assets might just be the clincher to make them hold their temper, and leave the baseball bat in the trunk.

The IRS is reputed to wield more power than any agency in America. Just put them in charge of collections.

My apologies for painting the sky with pie. I've actually been hunter / gathering information on hate crimes in the US for a good portion of the day, and it just feels good to shoot from the hip.

Andrew Yu-Jen Wang | February 25, 2009 7:53 PM

Speaking of hate crime(s):

George W. Bush is a hate-crime criminal.

George W. Bush did in fact commit innumerable hate crimes.

Bush will go down in history in infamy.

Submitted by Andrew Yu-Jen Wang
B.S., Summa Cum Laude, 1996
Messiah College, Grantham, PA
Lower Merion High School, Ardmore, PA, 1993

“GEORGE W. BUSH IS THE WORST PRESIDENT IN U.S. HISTORY” BLOG OF ANDREW YU-JEN WANG

Brad Bailey | March 29, 2009 10:25 AM

It is ludicrous to assert that because a hate-crime law does not eliminate hatred, bigotry, or intolerance, that is is not a good or necessary law. It's childish at best to even assume that these flaws can somehow be eliminated from human nature through force of law. Criminal laws are not meant to inspire good behavior. They are in place to punish bad behavior.

If you had actually read the bill, you would have known before writing this commentary that it addresses only violent crime; not stealing, lying, cheating, or saying hateful things. You would have also known that the bill does not discriminate between one kind of prejudice and another.

Hate crime is a very real thing. It is especially repugnant because its aim is not just to harm an individual, but to terrorize an entire community. It is a special kind of crime that deserves special legislation. The bill was based on very real crime statistics which showed that such violence was at very high rates against certain groups: gays, the transgendered, women, religious groups, and the handicapped among them.

"'Hate Crime' is a social construct. ... it focuses on the psyche of the criminal rather than on the criminal's conduct." And your point is...what? If this is faulty logic, then why is it used to determine degrees of guilt in rape and murder cases? You know..First, Second, and Third Degree rape? First, Second and Third degree murder?

And comparing hate crimes legislation to anti-drug laws is absurd. The former addresses violent crimes like assault, battery and murder. The latter do not.

Again, it is beyond childish to assume that criminal laws are in place to rid the world of hatred or intolerance. They are in place to stem violent crime and bring justice to the victims. It is further immature to expect any law or piece of legislation to be perfectly constructed or perfectly executed. Human beings are flawed and imperfect; so likewise are our laws and institutions.

Yasmin's right. It's the LGBTQ community's obligation to resign themselves (happily, no less) to full inequality on any and every level until America is instantly transformed into a Utopian heaven. No ENDA until unemployment is abolished. No marriage equality until everyone is provided the full benefits of marriage even if they have no one to use them "with". No repeal of DADT until every single person is able to and chooses to serve in the military. No Hate Crimes legislation until all injustices of the legal system are rectified. No gay adoption until every single child born is planned, wanted, and kept by their birth parents. No HIV/AIDS funding until all diseases are equally researched and cured at exactly the same time. The full force of LGBTQ resources should be solely targeted toward the good of, not just the majority, but the entirety of civilization. WHATEVER. I'm DONE with TBP. I've already deleted my bookmark.