There have been calls for "hate crimes" charges in the brutal assault on Chrissy Lee Polis in a Maryland McDonald's. Those charges would allow a longer sentence for those convicted of committing a crime, such as assault, found to be motivated by animus against a protected category. In other words, if you commit a crime against someone because of their race, sex, national origin, religion, sexual orientation and/or gender identity, then the sentence received can be longer than usually permitted for the underlying crime.
At the same time, some caution, as writer and academic Yasmin Nair did today in an earlier post, Why Hate Crimes Legislation Is Still Not a Solution, against the use of "hate crimes" charges under any circumstances. The concern there is that the "prison industrial complex already unfairly targets people of color, queer, and gender-non-conforming people for incarceration. Those picked up via HCL are disproportionately people of color and economically disenfranchised. Furthermore, hate crimes legislation does little to nothing to actually discourage crime."
I agree with Ms. Nair on those points - but I disagree that the conclusion is that hate crimes charges are always inappropriate.
"Hate crimes" laws are an attempt to understand that there is a further injury to one who is targeted as a crime victim because of their race, sex, national origin, sexual orientation, and gender identity. Hate crimes have a long history, well before the United States was a glimmer in anyone's eye. In the United States, there were, as is well known, many hate crimes against African Americans and people of color during slavery and in the Jim Crow period, and these are still the most frequent motivations for hate crimes today. While these crimes often have the effect of putting an entire community in fear of criminal activity if they leave their socially-designated geographic area, or are too public in their dealings, oftentimes, however, hate crimes are looked at as simple assaults, unless there is major and permanent bodily injury or death. That means the crime is punishable by a relatively small maximum jail time, much less is often imposed, and many times the crime may not even be prosecuted, as many prosecutors are overburdened by much more serious crimes. In Maryland, the lowest level charge generally given for assault is reckless endangerment, punishable by a maximum of 5 years in jail. Second degree assault, the next level up, carries a maximum penalty of 10 years, but requires proof of impairment of physical condition, excluding minor injuries. For a first offense, there is often no jail time imposed. The purpose of the "hate crimes law" is to make it clear that the law takes such crimes seriously.
Under the 1969 Federal Hate Crimes Act, a person can face a fine or imprisonment of up to one year, or both. If bodily injury results, or if acts of intimidation involve the use of firearms, explosives or fire, individuals can receive prison terms of up to 10 years, while crimes involving kidnapping, sexual assault, or murder can be punishable by life in prison or the death penalty. Of course, most such crimes would be charged under state law, so the Federal Hate Crimes Act would not apply. Its effect in such cases is mainly to give the federal government the power to bring charges when state or local officials decide that such crimes are not worth their time.
I agree with my colleague, Yasmin Nair, that our criminal justice system incarcerates a very disproportionate number of people of color. From my academic reading, this appears to be a result of combined factors such as the urbanization and enhanced surveillance of people of color, the ability of people in suburban and rural areas to hide their crimes more easily, assumptions by prosecutors, judges and juries that people of color are guilty for reasons other than the objective evidence in a case, and plea bargain opportunities given to white defendants that are less often extended to defendants of color. This disproportionate incarceration of people of color has many devastating effects on our society, such as removing a large portion of young persons of color from color, breaking up families, removing economic and social supports from mothers and children of color, barring many people of color from voting because of felon disenfranchisement laws, and a dozen other effects I have read about that I can't easily put into this space. If you're wondering what I'm talking about, look at the case of the Jena Six. That's an example of the type of thing that goes on every day in our system. White criminals get off, black criminals go to jail.
We must also consider the effects of homonationalism, the basic idea of which is that intolerance of the LGBT community is used as an opportunity to demonize other communities that have been slower to adopt the relatively recent liberalized acceptance of sexual minorities. Rather than working on education, then, some people use the lower social status of people of color and ethnic minorities to demonize them as savages, and gain agreement from a majority culture which is only slightly less intolerant and then only in public. As an example, there were so many racist comments on Bil's post about the McDonald's assault that even he, who has seen much of the dark underbelly of the LGBT blogosphere, was shocked and saddened.
Nonetheless, while I agree that our system is, at least, a racialist system, if not a racist one, I think those issue ought to be attacked head on and addressed. Hate crimes laws are relatively rarely used, and are not going to appreciably increase the prevalence of incarceration of people of color.
Who and what we should be attacking are the ideas of people like Oklahoma Representative Sally Kern, who said yesterday on the floor of the Oklahoma Senate that people of color are in prison in higher numbers because they didn't study hard in school. We ought to be attacking the idea that people of color are in prison in higher numbers because they commit more crimes. We should be critiquing the factors that make our criminal justice disproportionately prone to putting people of color in prison and not white criminals.
Crimes against people of color, against gay and transgender people - that are directed against them specifically because of their identities (which is part of the definition of a "hate crime") - should be recognized as more than simple assaults or robberies or manslaughter. These are crimes that have the effect of not only harming the victim physically and psychologically, but of harming others in the community who have to fear for their safety every time they go out of their residences. Frankly, I think about it every time I go to a public restroom, whether at work, at a restaurant or at any public place.
I've been lucky so far. But I couldn't even watch the video of the beating of Chrissy Lee Polis. I've been the target of pointed fingers and glares, and angry people who seemed ready to cut loose on me. It was too close to home. There but for the grace of God go I.
N.B. Based on one of the comments from our astute Projectors, below, I changed the title to reflect that hate crimes charges may be appropriate, since my discussion was meant to respond to the point, discussed in Yasmin Nair's post, that hate crimes legislation is always inappropriate.