Could Hate Crime Laws Backfire?
Published November 18, 2009 @ 11:46AM PT
President Obama recently signed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act into law -- expanding existing federal hate crimes laws to protect against assault based on sexual orientation, gender, gender identity, and disability.
So why would the Sylvia Rivera Law Project, a pioneering group that works on behalf of transgender, transsexual, intersex and other gender non-conforming people, oppose it?
Sometimes friends and allies disagree. This is as it should be. In progressive circles, we can and should dispute strategy and tactics while still affirming our commitment to the same core set of shared values. Dissent gives our body politic a healthy workout. In that spirit, it seems healthy to consider the SRLP's opposition to a new law that was generally praised by progressive LGBT voices.
The group advances two primary arguments as to why the legislation is a "counterproductive response to the violence faced by LGBT people." First, it sees hate crime laws as expanding the tentacles of the current criminal justice system that already results in "staggering incarceration rates of people of color, poor people, queer people and transgender people." Second, the SRLP argues that evidence fails to show that hate crimes legislation actually works to deter or prevent violence against oppressed groups. Taken together, the basic proposition is that the new legislation is essentially another version of a "get tough on crime" measure that threatens to increase violence in oppressed communities rather than decrease it.
In addition to these arguments against the Act on its own terms, the SLRP also expressed dismay that the legislation was joined to a military spending bill that included $130 billion for ongoing military operations in Iraq and Afghanistan, stating: "Killing people in Iraq and Afghanistan protects no one, inside or outside of U.S. borders."
In considering these claims, critics of SRLP's position could fairly counter that the unfortunate joining of the Act to a military spending bill says nothing about the content of the legislation itself. Furthermore, the SRLP's arguments seem to underestimate the symbolic value of mainstream legislation widely proclaimed to secure LGBT rights.
In the end though, the question of whether or not the act will deter hate-based violence or instead increase incarceration rates in oppressed communities is an important empirical one. It is a question that can only be answered by paying close attention both to the implementation of the law and its relationship to evolving trends in our truly horrendous system of mass incarceration. For this reminder to pay attention to the bigger picture of the struggle for justice, even those who disagree should be grateful for the SRLP critique of progressive strategy.
Image via London Metropolitan Police
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Comments (7)
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Colin is an acting assistant professor of lawyering at New York University School of Law and was a Staff Attorney at the Innocence Project from 2003 to 2007.
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I think it's helpful to have a discussion about hate crimes. But I'd also like to see the specific evidence offered by SRLP, especially since their charge -- that hate crimes legislation does nothing to lower rates of violent crime against oppressed groups -- is pretty serious.
What is a reality is that without a federal hate crimes law protecting sexual orientation and gender identity, rates of violent crime in this country toward LGBT folks rose dramatically -- rising 6% alone last year.
Posted by Michael Jones on 11/18/2009 @ 03:09PM PT
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That's a good question, Michael. SRLP links from their site to a good article from Liliana Segura at Alternet this summer on the Sheppard Act. The article points out that although 24 states added hate crimes in the last decade, hate crimes rose significantly.
It leads me to wonder if the federal law can accomplish something something that the state laws failed to do.
Here's some data from the Alternet piece:
In 1999, some 21 states and the District of Columbia had hate-crimes laws on the books. Today, 45 states have enacted hate-crime laws in some form or other. Yet the trend has not been a lowering of hate crimes. In 2006, 7,722 hate-crime incidents were reported to the Federal Bureau of Investigation in 2006--an 8 percent increase from 2005.
The data: 2,640 were anti-Black (up from 2,630 in 2005); 967 were anti-Jewish (up from 848 in 2005); 890 were anti-white (up from 828 in 2005); 747 were anti-male homosexual (up from 621 in 2005); 576 were anti-Hispanic (up from 522 in 2005); 156 were anti-Islamic (up from 128 in 2005).
Hate groups also appear to be on the rise. According to the Alabama-based Southern Poverty Law Center, the number of hate groups has increased by 54 percent since 2000.
Here's the full piece: http://www.alternet.org/story/141724/do_hate_crime_laws_do_any_good/
Posted by Matt Kelley on 11/18/2009 @ 05:44PM PT
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The idea of deterance through the potential of punishment is the whole problem with the system. So many violent crimes aren't thought out, they occur when something happens to crack a person who may or may not already be very damaged themselves. These sorts of crimes can't be prevented by the threat of years in prison or even death, because in the heat of that moment, an offender isn't exactly thinking about the potential consequences of his actions.
Where hate crimes are concerned, sometimes the crimes are more planned or at least fantasized about before commission. Nevertheless, how has attempting to scare at-risk people away from committing crimes helping?
SRLP makes a very good point: tough-on-crime does very little good for crime in general. If you want to stop hate crime, punishment isn't the answer. We have to build a better, more tolerant society in which hate can't flourish. Unfortunately, morality can't be legislated.
Posted by sarah karp on 11/20/2009 @ 08:01AM PT
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"The idea of deterrence through the potential of punishment is the whole problem with the system."
I agree, but I imagine for a different reason than you. You mention 'the system', which one? I can think of two when mentioning crime, the 'Justice' system and the 'Penal' system.
My first thought is directed to this idea of deterrence. This idea is more recent and comes after the idea of Justice and systems to protect citizens. After justice has been determined and guilt established, the guilty party was to have some punishment assigned. Originally deterrence was built into justice by the knowledge that criminals will be brought to justice and that this justice would be swift and sure.
This is the problem with our ‘Justice’ system, that justice is no longer served. Victims are too often victimized for a second time in our courts; they receive neither justice nor satisfaction. Plea bargaining, ‘innocent by reason of’ judgements, the guilty set free because of some ‘legal’ mis-step, the replacement of the desire for justice and pity for the victim with a desire for mercy and pity for the criminal has taken the blindfold off of lady Justice and now requires her to scrutinize the criminal in order to find some reason not to administer justice.
This is also a problem with our ‘Penal’ system. This undesirable and unlovely, but necessary, part of our governments duty to its citizens was never meant to do anything other than punish law breakers. It has neglected its duty to such an extent that criminals allow themselves to be returned into the penal system multiple times with only minimal misgivings. If wrong doers were punished appropriately, they themselves would know that justice was served and would not want to return to face justice again.
Should we as a society be concerned about the innocent being wrongly convicted? Yes we should, and this is where our efforts in reforming this section of government should be directed. Did the accused commit this crime? Yes? Then do not allow them to escape justice by pleading guilty to some lesser crime. Did the accused commit this crime? Yes? Then there can be no such thing as ‘innocent by reason of’, a guilty person is guilty not innocent. Did the arresting officer break some law in apprehending the criminal? Then place charges upon the arresting officer, but if what is presented is true then convict the individual if his/her guilt has been proven. However, in then end, society has placed in the hands of the jury the duty to act on its behalf. Has an innocent person been wrongly convicted? That is too often a horrible fact, but the blame should be placed rightly, and that is upon the jury and the judge and lawyers for that particular case.
Is there a place for mercy in a ‘Justice’ system? No, not directly. A system of justice should be just and therefore hand down a just punishment for the guilty or there is no justice for the victim. But I believe that there should be a time, just before the judge hands down the sentence, where the convicted can ask for mercy from the victim. If the victim agrees to extend mercy to the guilty party, then the court should be able to change the sentence to reflect this request. Then justice will have satisfied both the just demands of the victim and society’s just demands for protection. But if the victim requires full justice without mercy, then that is what the guilty should receive.
Hate crimes? Crimes of passion? Person ‘A’ hits person ‘B’ because they hate them or because they love person ‘C’ it doesn’t matter. If I am wrongly hit because someone thought it was funny or if you are wrongly hit because someone doesn’t like the clothes you are wearing or the beliefs which you are stating or the minority group you belong to it should not matter to the courts. All that should matter, and be considered, is that we were hit without a just cause! You and I should be able to expect justice and in order for it to be justice it should be the same for both of us. The crime should be determined, the guilt assigned and the guilty punished.
Crimes of any kind, hate and its inevitable actions is just one of many, will never be stopped in any society. Governments will always have to make laws, have law enforcement authorities and justice and penal institutions. Since it is not possible to create a perfect society, punishment is a necessary evil for those who do not want to be a productive member of society and choose to harm the only society we have.
You are right when you say that morality cannot be legislated. But whose morality are we referring to anyway? Morality belongs in the realm of religion. Our government should be separate from religion. So the only laws which should be made are those to protect the individuals in our society. Laws should not be passed because someone simply doesn’t like what someone else is doing. But if someone harms someone else unjustly, then it does not matter why they did it, the victim should be able to expect that justice will be done.
Posted by Tom Kohler on 11/22/2009 @ 01:27PM PT
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This hate crimes law is a big step backeard for equality and non discrimination. We have a family member who is Gay and now he is forbidden to associate with my immediate family for fear of an argument whereas if one is to defend himself, that would be illegal. This law is ill thought out as it causes resentment and discrimination. Strictly another act of stupidity by Congress.
Posted by Otto VonAuchvetter on 11/22/2009 @ 11:55AM PT
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These are interesting arguments.
My feeling is that the new Hate Crimes Prevention Act serves an important symbolic role. It symbolizes that at this point in history we as a society, via our representative government, disapprove of not just certain crimes but crimes based on certain specific reasons (sexual orientation, gender, gender identity, and disability) as well.
I think that the SRLP does provide a service/opportunity by critiquing the Act.
Here is the link:
http://srlp.org/fedhatecrimelaw
As far as getting the answer to the "important empirical question" I think your right to look at data but I think that data is often read in absence of other factors or compared to dissimilar figures.
There are many questions to ask before we make a judgement that "hate crimes laws cause hate crimes".
For example:
We should ask if the increase in these crimes (example given ... an increase of 10 more anti-black in the USA from 2005-06) would have actually been higher (e.g. an increase of 20 more anti-black crimes) if the laws weren't in place.
Also, if it hasn't been done already, we should look at how the RATE OF REPORTING may have been what went up not the number of crimes per se.
I don't really want to spend much time critiquing the SRLP article but some points are worth making.
When they say that the USA incarcerates more people, per capita, than any other nation and that one out of every thirty-two people in the U.S. live under criminal punishment system supervision, that is correct, but, it should be mentioned why the majority are there; "war on drugs" and "substance prohibition" related sentences (that's a verifiable fact.)
Also the SRLP says that:
"As we see trans people profiled by police, disproportionately arrested and detained, caught in systems of poverty and detention, and facing extreme violence in prisons, jails and detention centers, we believe that this system itself is a main perpetrator of violence against our communities."
Wouldn't the new law increase the likelihood that the local police and other systems committing hate crimes be found out and prosecuted by federal agencies?
More:
"Evidence demonstrates that hate crimes legislation, like other criminal punishment legislation, is used unequally and improperly against communities that are already marginalized in our society. These laws increase the already staggering incarceration rates of people of color, poor people, queer people and transgender people based on a system that is inherently and deeply corrupt."
This just doesn't make sense to me. Why would the incarceration rates of queer and transgender people increase because of laws to protect them? Queer and transgender incarceration rates are apparently going up but it simply doesn't make sense to attribute that to laws against hate crimes.
The Act does have "prevention" in the title and that, unfortunately, may be unrealistic at least in the short term. Also, in the long run a decrease in hate crimes might not be because of hate crime laws. But, again, I do think it sends an important message.
This story reminded me that I think we could all be a lot more precise with our assertions and reasoning. This is true for any/all causes.
Posted by Matthew Bristow on 11/22/2009 @ 06:36PM PT
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And they have finally determined that Bill Gartman found hanging from a tree in the Daniel Boone Forest of Kentucky, well, they have determined after long deliberation, that it was a suicide. Cover ups cover ups cover ups.
How did he duct tape his census worker's badge to himself, then? So what if the word FED was upside down, that doesn't make it a suicide.
Posted by CherokeeGirl for Change on 11/24/2009 @ 04:56PM PT
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