Blind Prophecy

The Bilerico Project is opening up a new point/counterpoint feature. One of the reasons I think TBP is the best queer blog on the internet is that rather than reposting news culled from elsewhere, they put thoughtful analysis into the issues of the day. In the first point/counterpoint, members of the community debate hate crime legislation. Mercedes Allen argues in favor of the Matthew Shepard Act while Yasmin Nair argues against the idea of hate crime legislation.

Both make interesting arguments, but I’m not satisfied that either voice fully captures my opinion on hate crime legislation. So, since the last time I seriously articulated my view was a few years ago (in a debate with Nick), this seems like a good time to bite into that topic again. Brace yourself for a long-winded essay.

Introduction – Recent History and Current Status

On May 3, 2007, the Matthew Shepard Act passed the United States House of Representatives by a vote of 237 to 180. Between July and September, Senator Kennedy and the Democratic leadership tried to pass the Senate version of the bill by adding it to the Senate Defense Reauthorization bill with an apparent 60 to 39 Senators in favor, but when the bill got tangled up with antiwar Democrats, a threatened veto from Bush and hysteria from conservative groups, it got removed and the legislation died with the close of the 110th Congress on January 3, 2009.

Although the legislation has yet to be introduced in the 111th Congress, President Obama has signaled it as one of his administration’s priorities in civil rights and it is widely believed that the legislative support, popular opinion and political climate is finally conducive to passage of the legislation.

The Department of Justice and the FBI have kept statistics on hate crimes since 1992 in accordance with the Hate Crime Statistics Act. Although hate crimes account for only a fraction of all violent crimes, the statistics indicate that they remain an ongoing problem.

According the Anti-Defamation League [PDF], forty-five states and the District of Columbia have statutes criminalizing various types of hate crimes. Twenty-seven states and the District of Columbia have statutes requiring the state to collect hate crime statistics.

Of the first category (criminalization), 32 of them cover sexual orientation; 32 cover disability; 28 cover gender; and 11 cover gender identity. Federal law covers none of these.

In the second category (data collection), 16 areas with data collection laws include sexual orientation, 20 include disability, 12 include gender, and 9 include gender identity. Federal law (Hate Crime Statistics Act) includes sexual orientation and disability.

Part I – The Good Bill

The Matthew Shepard Act, officially titled the Local Law Enforcement Hate Crimes Prevention Act of 2007, would update the existing federal hate crime act first passed in 1969. The current list of protected groups under the law includes race, color, religion, or nation origin. The Matthew Shepard Act would have added actual or perceived gender, sexual orientation, gender identity, or disability to the list of protected classes.

And that is my first reason in favor of the bill: hate crime legislation already exists at the federal level, but excludes groups we know are frequent targets of violence and crime. Would the Matthew Shepard Act address all groups still unrepresented by current federal legislation? No. It could be expanded to include veteran status, age, or any number of other groups. (I would likely support such amendments to the bill, depending on the language and sincerity of the effort at inclusion.) But rarely do we get perfect legislation that solves all problems in one blow. Nevertheless, we know that people are targeted for crime based on their perceived gender, sexual orientation, gender identity, and disability, and it is time federal law was expanded to include those classes.

The bill would also remove a bit of language from the existing hate crime legislation that makes it rather toothless in actual practice. The current language includes a prerequisite that the victim of a hate crime be engaging in “a federally protected activity” like voting or going to school. Since hate crime legislation is primarily a penalty-enhancement tool for prosecutors and judges, this aspect of the code has hamstrung the effectiveness of the law into a narrow range of specific cases. It also make federal law out-of-step with most state law and causes confusion in interstate matters and reporting.

Additionally, the Matthew Shepard Act as proposed in 2007 would have also included funding for investigating hate crimes, given federal authorities (i.e. the FBI) greater ability to investigate hate crimes being ignored at the local level, and resolved some conflict over the requirement for FBI tracking of hate crime statistics (I understand that although the FBI must collect data, nothing at the federal level requires the states to report and pass along the data… although I’m a but fuzzy on how accurate this analysis of the data collection problem is.). I’m always in favor of making our legal system more effective, properly funded, and resolving ambiguities in the law.

The Matthew Shepard Act updates an old law to be more inclusive of the realities of our modern era, fixes ambiguities in the existing law that have been used to circumvent the desired effect of the law, and resolves issues related to authority, funding and data gathering. It’s not just “queer rights” legislation, it’s also common sense legislation.

Part II – The Good Idea

I find most centrist-to-progressive opponents of the Matthew Shepard Act, however, are more concerned with opposing the concept of hate crime legislation rather than the specific content of the bill.

Again, I support the concept of hate crime legislation. The name “hate crime” is actually a terrible misnomer. The legislation doesn’t create a new type of crime. It doesn’t make it illegal to hate someone for their membership in a protected class. What it does is enhance the criminal penalties on existing crimes when those crimes are motivated by hate. This is an important distinction.

Our entire judicial/criminal system is built up around the notion that we give everyone a fair trial. Each individual is entitled to a thoughtful, fair, speedy and just examination of the facts of his or her case. They are given the opportunity to dispute the facts, confront their accuser, and defend themselves against untrue claims by the state or prosecuting party. The trade-off of this is that after a person has been found guilty of a crime, the punishment for that crime is often decided in relation to those facts which have been proven to the satisfaction of the court. When a person shoves their neighbor, a judge and jury weigh many factors in determining first which crime, if any, the person is guilty of committing (assault, harassment, self-defense). Was the shove intentional? How much injury did the neighbor suffer? Was the shove a response to a threat from the neighbor? How did the neighbor provoke the situation? Second, those same facts are considered in sentencing. A person who lost their temper but shows remorse and demonstrates the rarity of such moments will probably get a light sentence. A person who shows no remorse, a person who targeted the neighbor because they seemed like easy prey, a person who intended to cause the maximum hurt is likely to be sentenced more severely. There are limits to these sentences, guidelines set out by law (mandatory minimums and maximum penalties – the right to avoid cruel and unusual punishment), but judges are generally granted some degree of discretion in assigning penalty to crimes.

Hate crime legislation give the courts the ability to enhance a criminal charge (vandalism versus bias-motivated vandalism). The accused can still defend themselves against these charges, confront their accusers, present alternate evidence, etc. But if the jury or judge, after weighing these individual cases, find the facts point to a guilty charge in a bias-motivating, the sentencing judge also has the opportunity and obligation to increase the penalty to a higher minimum/maximum. To punish more severely.

Which I believe is appropriate, because a hate crime is a more severe type of crime. If I learn that a person was shot on my corner, or course I’m upset by this news and worried for my own safety. If I learn that a person was shot on my corner because someone thought they were gay, I feel even more acutely upset and worried for my own safety. Hate crimes are more severe because they are a sort of localized domestic terrorism.

It sounds callous when I say that I’m desensitized to random violence in the city. But when the violence becomes less-than-random, I’m suddenly more nervous about voicing my opinions, living my life openly and proudly. I know that every act of violence in a microcosm should have the same effect on the community, but that’s a “should” that doesn’t exist in the world anymore.

Hate crimes are more severe crimes because of the ripple effect. We already consider a criminal’s motivation and the severity of their crime when sentencing, hate crime legislation simply gives judges access to more discretion in assigning penalty to crimes that are, in fact, more severe than our current federal law recognizes.

Part III – The Dissenting Views

The arguments against hate crimes and the Matthew Shepard Act range from the incredibly stupid to the sophisticated and reasonable. Let’s dispatch with a few of the former, first, as we work into the latter.

“All crimes are hate crimes. If you commit a crime against someone, you hate them.” When I hear people say things like this, I want ask them if they’re being glib or if they’re really that fucking stupid. No, not all crime is motivated by hate. Sometimes it’s motivated by desperation. Sometimes it’s motivated by mental illness. Sometimes it’s motivated by jealousy. You get the idea. Besides, we’re not exactly talking about “hate” as the all-purpose-antithesis-to-love here, we’re actually talking about bias, prejudice or bigotry.

“It will make it illegal for Christians to preach the Bible.” Oh-fucking-hell I hate this lie. And that’s all it is. A lie. As I articulated above, hate crime legislation does not criminalize hate, hate speech or hate opinions, it is simply a penalty-enhancement to existing crimes. So, unless your Bible-preaching also involves a live demonstration of fag-bashing, you have nothing to fear. But if your Bible-preaching does include a live demonstration of fag-bashing, you’re already breaking the law, committing a crime, and you ought to be punished for it.

“Okay, but it opens the door to thought police. Today, it’s a penalty enhancement, but tomorrow, it’s a ban on printing the Bible or jailing people who express certain political opinions.” Classic slippery slope fallacy – the belief that this step will inevitably lead to a chain of events that ends tragically. I have more faith in the American justice system, the primacy of the first amendment, and the limits to which our nation will go to promote harmony and tolerance. Frankly, I’d be the first to oppose a law that actually infringes on first amendment freedoms of speech, religion or press.

However, hate crime legislation has been on the books of many states for quite a while now and guess what, the courts have not found them to terribly limit free speech. California and Massachusetts haven’t started jailing Fundamentalists yet.

In fact, it seems as though the practical use of hate crime enhancements is relatively infrequent. Since the state must prove the bias motivation, many prosecutors hesitate to add them to criminal charges in anything but the most air-tight and egregious cases – exactly as I would hope. I don’t think every guy who gets called a faggot in a bar fight is the victim of a hate crime, but I do think that in cases where an obvious bias is shown, we should have the option of penalty enhancement. It says, “our society frowns on this behavior,” and I’m in favor of sending that message.

“Penalty enhancements feeds into the prison-industrial complex and punishment-based legislation rather than behavior rehabilitation and victim restitution.” Yeah, and next we should remove the government from legislating marriage and families altogether, replace the military with Amnesty International, and establish a Department of Sharing, Gifting and Trading and a Secretary of Bartering to rival the World Trade Organization-puppets in the corporate-owned Washington political parties. [/ridiculously idealistic goals]

Hey, I support shaking up the prison-industrial complex, but not by refusing to back quality legislation in the meantime. Besides, take the broken criminal system fight to the stupid war on drugs before you start forming a human chain in front of the fag-bashers, okay? Until we’ve overturned nonviolent marijuana offenses and eliminated racist inequities between crack and cocaine sentencing guidelines, arguing about whether or not hate crime legislation is contributing to our over-crowded, highly recidivist prison population seems premature.

“But you’re not really addressing the underlying problems that give rise to bias like economic disparity and education. You’re just punishing people rather than helping educate them to begin with.” Maybe you’re not doing anything to change hearts and minds in your free time, but I am. And, quite frankly, even the most apolitical and apathetic of my friends have, at one time or another, done something to spread tolerance, acceptance and multiculturalism. Of course, that’s one the reasons they’re my friends, so we’re not working with a true cross-section of society…

My point is, it’s not like we’re looking to hate crime legislation as the end goal. Or the only way to get there. Our ultimate goal is to put an end to bias-motivated crime, and I believe that the most effective path to get there includes both hate crime legislation and ongoing education efforts. Don’t turn this into an either/or scenario. I think that addressing economic injustice is something we all have responsibility to do, but that doesn’t mean hate crime legislation is without use in our less-than-ideal world.

Moreover, to reduce bias crime simply to flaws in our social justice culture and education is simplistic. There are many highly educated people who exhibit bias and prejudice. It’s not unreasonable to assume that a well-off, well-educated person may yet harbor deep prejudices that lead them to target a specific community for crime. It may be uncommon, but it’s not impossible.

Part IV – What I Didn’t Bother With

There are many arguments against the Matthew Shepard Act which are simply the same shrill, disproven and offensive arguments trotted out against anything with the words “sexual orientation” or “gender identity” in them.

• Why protect people based on chosen behavior?
• This is just special rights.
• This will lead to legalized polygamy and incest!
• They’re out to recruit the children!!
• Men in dresses will assault little girls in public restrooms!!!
• Etcetera…

You’ll forgive me for glossing over the reasons these hysterical and distasteful points are wrong. If you believe any of these points constitutes an actual issue, you and I probably won’t ever agree on the issue no matter how reasonable, logical or sane my arguments are.

No, I’ll take a small part of that back… the “rights” point… what right, exactly, is gained by the passage of the Matthew Shepard Act? As a strict legal principal, the law neither grants, revokes, or alters any existing “right.”

For the LGBT community, passage of the Matthew Shepard Act has remarkably minor impact on eradicating legal inequality. It doesn’t open the door to any institutions that have been denied us. It doesn’t protect our jobs or our homes or our access to financial and educational institutions.

Special Rights? Hell, this legislation isn’t even about equal rights? It’s about recognizing a certain type of crime as being more severe, more harmful to society, and giving judges and prosecutors another tool with which to address the harm and severity of these crimes.

Part V – Conclusion and Challenge

I dream of a day when hate crime laws can be removed from the books because we, as a society, have moved past identity politics, eliminated systemic cultural and legal disenfranchisement, and reformed our criminal system to effective rehabilitation and re-education programming rather than primarily punitive and incarceration-based punishment. Better yet, we’ll have reduced violent crime to almost nonexistent levels in the great enlightenment.

Until then, hate crime legislation provides a meaningful bridge to signal the direction we’d like to go.

I believe that hate crime legislation should be used sparingly and only in cases with a definite severity to warrant the enhanced sentencing guidelines. Although nearly impossible to legislate the prudent application of the statutes, we must nonetheless put effective and sensible laws in place.

I believe that the American people will remain vigilant in monitoring the hate crime laws for overuse, abuse and over-reaching; but that criminals who deliberately terrorize groups coming from a tradition of cultural and legal oppression ought to be subject to enhanced penalties if found guilty of bias crime in a fair, speedy and just trial.

All of which is why I support the reintroduction of the Matthew Shepard Act and ask for your help in lobbying Congress to pass the legislation and for Barack Obama to sign it into law. Contact your elected officials early and contact them often.

Filed under: Essay, hate crimes, queer rights by Jere Keys