What You Need to Know About Hate Crime Laws

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On January 17, 58-year-old John Frasier, a homeless man, while asleep on a beach in Ventura, California, was doused with gasoline by three young white men and set on fire. If it weren’t for a random civilian who extinguished the flames with sand, Frasier would have likely perished.

Crimes against the homeless increased 24% from 2012 to 2013, and, of the groups currently protected under hate crime laws (HCL), the homeless have the highest rate of persecution. Most of us would feel a lot better knowing that these three men were captured and left in prison to rot. Unfortunately, the homeless are not actually protected under HCL in the state of California.

Therefore, with a good lawyer the suspects could knock down an attempted murder conviction to 10 years, instead of receiving a hate crime “penalty enhancement” (e.g. the maximum penalty for attempted murder: a life sentence). HCL recognize crimes against a specific gender, race, nationality, religion, sexual orientation, gender identity, or disability, but, in 46 states, the homeless are not included.

The National Coalition for the Homeless seeks to expand federal hate crime categorization to include the homeless. But the point of this article is not necessarily aimed at raising awareness for crimes against the homeless – it’s to help clarify the rationale behind HCL. In 1999 the University of California at Davis conducted a four-year study of the psychological effects of hate crimes on the LGBT community. These hate crime survivors showed increased signs of psychological distress, consistent with post-traumatic stress disorder, compared to non-bias motivated crime survivors. HCL are not intended to be a form of affirmative action for deterring violence against minorities. They address conduct of a terrorizing nature, like the murder of Arthur Warren in 2000 (a homosexual male who was beaten by two young men, driven outside of town, and run over with a car four times until he died), or, on the lighter side, an incident in 2013 involving 16 Amish individuals who forcibly removed the beards of several other Amish residents.

If a victim is targeted specifically because he or she is a member of a recognized group, this also creates an environment of terror for others who belong to that group. One side-effect of a terrorized environment is its inherent volatility, which increases the likelihood for exaggerated retaliation, like riots.

Some people, like Missouri Congressman Paul Curtman, oppose HCL with the argument that “there is not really such a thing as a hate crime. Crime is crime, right?” In other words, all crimes are motivated by hate, thus HCL give undeserved attention to minority groups. If we subdivided all crime victims into their subsequent group, this argument would appear to hold water. The “bad drivers” group would be singled out for road rage, the “attractive temptress” group would be singled out for rape, the “wealthy business owners” would be singled out for theft, the “sports fanatic” group would be singled out the way Bryan Stow was nearly beaten to death after a Dodger-Giants game in 2011.

But this argument assumes that the mere hint of hate-bias will result in an automatic promotion from “normal crime” to “hate crime.” Whites have the highest probability for committing hate crimes, claiming over 50% of the annual total, yet, of the inter-racial white-on-black violent crimes committed in 2005, less than 3% were deemed to be actual hate crimes.

A thorough examination of the evidence is considered in every case before the label of “hate crime” can be officially attached, especially when it comes to First Amendment privileges. Three Supreme Court cases in particular have established precedence in this arena.

  • In 1969, Brandenburg v. Ohio protected a KKK leader’s right to preach vengeance against other races during a rally as long as a time element of "clear and present danger" can be established (e.g. because no action was taken immediately after Brandenburg’s speech, he cannot be held accountable).

  • In 1992, R.A.V v. City of St Paul protected one’s right to express his or her bigotry in a symbolic manner (i.e. placing a burning cross in the yard of a black family), and, as long as no violent conduct occurs immediately afterwards, this would only qualify as vandalism.

  • In 1993, Wisconsin v. Mitchell protected our right to express bigotry, even if one acts on this bigotry in a violent manner, as long as a distinction can be made between the belief and the conduct (e.g. an established bigot can commit inter-racial battery without it necessarily being categorized as a hate crime).

What these cases have in common is that they, either directly or tangentially, deal with a type of speech that our First Amendment does not protect. Along with profanity, obscenities, libelous accusations, and lewdness, so-called “fighting words” are not protected by our Constitution when delivered in a public forum.

Ironically, according to statistics, penalty enhancement is not a significant deterrent. The Hate Crime Sentence Enhancement Act was passed in November of 1993, but these crimes continued to rise for the next two years. Hate crime awareness became a national media campaign in 2000, yet these crimes experienced a major spike in 2001 after the 9-11 attacks. A Local Law Enforcement Hate Crime Prevention Act was reintroduced in Congress in 2005, yet they experienced a swell, and would remain relatively un-phased.

Hate Crime graph

Either the type of person who commits a hate crime is a special type of criminal who is not influenced by harsher consequences, or harsher consequences are not actually a deterrent in general. If the former is true, what’s the point of penalty enhancement?

The point is that hate crime awareness shapes attitudes and values. It’s harder to dehumanize someone with whom you share certain values, and this applies to both the victim and the criminal. Because many of us find it difficult to relate to, or understand, the values of other cultures, other races, those with alternative sexual preferences, or even the homeless, these people are more easily dehumanized. Values aren’t shaped by prisons; they’re shaped by family and peers.

For better or worse, political legislation represents the values of the people we elect into office. If HCL help spread these values beyond the walls of Congress, then maybe these crimes can be avoided altogether by shifting the deterrent into the household, rather than taking our chances with the prison system.

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