RSS
Home
Got hate? Enhance sentences instead of creating new crimes
Print
Email
RSS
Subscribe
Yesterday, President Obama signed a new hate crimes law making it a federal crime to commit violence against an individual because of the victim's sexual orientation or gender identity.
In other words, Obama signed a new law making certain acts of violence federal crimes. Or, more precisely, a new law expanding the universe of perpetrators who, if they commit a violent crime, can be charged under federal hate crimes laws.
This extension of law has been in the works for more than a decade in the wake of the 1998 kidnapping and fatal beating of Matthew Shepard, a gay Wyoming man, and James Byrd, a black man dragged to death behind a pickup truck in Texas. Both crimes were horrifying and gruesome in their deliberate cruelty and shocked the conscience of all Americans.
Neither Wyoming nor Texas had hate crimes laws in place when these crimes were committed. Yet both crimes were prosecuted very successfully and to the fullest extent of the laws then enacted. Two of the three racist evildoers who murdered Byrd were convicted and sentenced to death, and the third received a life sentence. Shepard's bigoted murderers received two consecutive life sentences each. Under our system of criminal justice, it is hard to imagine better outcomes. Wyoming and Texas handled these cases just fine, thank you very much, without state or federal hate crimes laws. Though I would have preferred all 5 received death sentences to be carried out within 30 days of sentencing but, thanks to the ACLU, swift justice like that is never going to happen.
The outcomes of these cases begs the question: What would a hate crimes law have added to the justice pursued and administered in these cases, and what will it add to future similar cases?
The answer? Nothing.
The FBI estimates that based on its Uniform Crime Reporting Program through which the bureau collects nationwide crime data, 1,408,337 violent crimes were committed in the US in 2007. Murder, forcible rape, robbery and aggravated assault--the types of crimes committed against Byrd and Shepard. The FBI also reports that, in 2007, 9,006 hate crime offenses were reported nationwide. That means roughly 3/5ths of 1% of the violent crimes committed in 2007 nationwide, according to the FBI, were "bias motivated". It's certainly possible that law enforcement in some jurisdictions is less likely to investigate and pursue criminal activity where the victim is a member of a special class, or report certain crimes as involving hate or bias. But even if we assume a 200% underreporting rate of bias motivation by law enforcement agencies, the number of hate crimes is statistically an extremely small subset of violent crime overall.
Look a little closer at the statistics and you'll see even less significance. Using the FBI's 2007 numbers, of the 9,006 reported hate crimes, 5,408 were violent crimes committed against persons. These crimes included 2 forcible rapes, 9 murders, and about 1,100 aggravated assaults, which amount respectively to .000142%, .000639%, and .079% of all violent crimes in 2007 nationwide. Indeed, the number of hate crimes as a whole are virtually non-existent when one considers the remaining 3,600 hate crimes involving property (e.g burglary, theft, arson, vandalism, etc.) in the context of the nearly 10,000,000 property crimes committed in 2007. Again, even if we account for underreporting by doubling or tripling the FBI's reported numbers, the small percentages suggest there is no widespread systemic effort to avoid reporting which would justify federal intervention and entire new classes of crime based on hate/bias.
But statistical significance is not the real issue since we should all agree that any crime, whether or not motivated by bias, is wrong and should be prosecuted. The question is whether hate crimes laws are necessary in general and whether this new law is specifically required. If we were to base our decision just on reported statistics, the answers are clearly no and no, and will remain that way as long as defendants continue to be prosecuted for crimes.
However, bias or hate motivation can and should be handled in some way by our system, just not as a separate crime. Our system relies in part on the ability of prosecutors to prove a defendant's "mental state". In other words, for a prosecutor to prove that a defendant committed a particular crime, he will prove the defendant acted with a certain mental state as defined in the statutory elements of that crime, e.g. the defendant acted intentionally, recklessly, knowingly, etc.
But that's not the same as proving that someone acted with "hate" or "bias" which is more accurately described as a rationale for the mental state. For example, to prove the defendant murdered the victim, you have to prove the killing was intentional and premeditated. If the victim was [insert special class identification here] and the defendant hates members of that special class, then that provides the rationale or motive for the intentional and premeditated killing, but it is not a sine qua non of proving intent.
Nevertheless, there is a place where bias or prejudice in the commission of a crime should matter and that is at sentencing. Many states and the federal government already have laws in place to permit sentencing judges to take into account various aggravating factors to enhance a sentence upward (i.e. increase prison time), including bias, prejudice, deliberate cruelty, the vulnerability of the victim, and many others factors. At the same time, judges in many jurisdictions (including federal judges) are bound by sentencing guidelines based on complicated formulas of crime rankings, criminal histories and other factors that box judges into a narrow range of jail time that can be imposed. Usually a judge's sentence within the recommended range is not appealable but a sentence outside the recommended range can more easily be challenged on appeal. We have partially emasculated judges in the name of consistency and predictability.
There are several sound ways to handle hate/bias factors in sentencing. One would be to loosen up sentencing guidelines to give judges more discretion to throw the book at criminals who commit crimes with aggravating factors, including hate/bias.
Another would be to add mandatory sentence enhancements for hate/bias motivation. Many states and the feds have mandatory periods of additional jail time, for example, when a convicted defendant uses a firearm during the commission of a crime, or commits certain crimes within defined school zones. A mandatory federal sentence enhancement of 5 or 10 (or more) years is an appropriate way to incorporate this issue into the federal system, and states should do the same if they haven't already. Sentencing enhancements might also serve as more of a deterrant than a hate crimes law where prosecutors would be charged with the more difficult task of proving the level of a defendant's hate/bias in order to get a conviction, and would give prosecutors an additional bargaining chip for plea negotiations.
A crime is a crime regardless of the level of hatred/bias in the heart of the perpetrator. A crime victim is a victim regardless of whether he is a member of a particular class of people. Shepard and Byrd would still be dead, and their crimes equally horrifying, if they had been straight and white respectively. And their perps could scarcely have received greater punishments had they been prosecuted under hate crimes laws as opposed to murder statutes. Let's prosecute offenders to the fullest extent for the crimes they commit and if they acted with hate/bias, hit them harder at sentencing.
Related Articles:
Add a Comment
