In the wake of the mass shooting in the Charleston, South Carolina church Wednesday evening, several commentators have expressed concern that Indiana has no “hate crime” among its statutes. As noted on Wikipedia (my 1996 pocket edition of Black’s Law Dictionary lacks a definition of “hate crime”): “Hate crime laws protect against hate crimes (also known as bias crimes) motivated by enmity or animus against a protected class. Although state laws vary, current statutes permit federal prosecution of hate crimes committed on the basis of a person’s protected characteristics of race, religion, ethnicity, nationality, gender, sexual orientation, gender identity, and disability.”
I am opposed to enactment of so-called “hate crimes” for several reasons:
1) The statute on the books punishes sufficiently. When Matt Shepard, a gay man, was beaten to death in Wyoming, generally people were outraged. His assailants were prosecuted for murder and received consecutive Life Sentences without the possibility of parole (also known as LWOP). James Byrd, Jr., an African-American man, was murdered in Texas, in the course of which he was chained to and dragged behind a truck. His assailants received two death penalty sentences and one LWOP. Neither of these cases was prosecuted under a hate crime. Murder is murder. Extreme violent crimes are what they are—and generally carry heavy punishment. As NYU Law School Professor, and Director of the Center for Research in Crime and Justice, James B. Jacobs, wrote in 1993: “The horrendous crimes that provide the imagery and emotion for the passage of hate-crime legislation are already so heavily punished under American law that any talk of ‘sentence enhancement’ must be primarily symbolic.”
2) To label an act a “hate crime” adds another element to prosecute. To convict a person of a crime in this country, the State (or Commonwealth) must prove guilt beyond a reasonable doubt as to all elements. If one adds an element, the prosecution becomes more difficult. In Matt Shepard’s case there was dispute over whether the murderers acted because he was gay. If the goal of enactment of such legislation is to prosecute persons who perpetrate such offenses more thoroughly, to make the prosecutor’s job more difficult makes little sense.
3) In Indiana, the matter of a hate crime can be considered as an aggravator for sentence. When a person is sentenced, the judge can considered factors in aggravation and factors in mitigation of the statutory advisory sentence on the books for an offense. Aggravators are within the discretion of the judge. The prosecutor can argue for aggravators. An “aggravator” is not a sentence “enhancement.” An aggravator is used to determine sentence within the range of penalties provided by a specific statute. An enhancement raises the sentence above the range of penalties.
4) There is no evidence enactment of hate crime statutes deters behavior. In their October 2, 2013, article in The Nation, “Hate Crime Laws Don’t Deter Violence Against LGBT People,” Michael Bronski, Ann Pellegrini and Michael Amico note that studies do not establish hate crimes have any deterrent value.
5) The roots of hate crimes run much deeper and call for more comprehensive solutions. Kay Whitlock is the National Representative for LGBT issues for the American Friends Service Committee (AFSC). The AFSC is a Quaker organization that works for peace and demilitarization, human rights, social justice, and human rights in the United States and throughout the World. In her essay “Reconsidering Hate: Policy and Politics at the Intersection,” she is paraphrased by Bronski, et al. I quote their summary because her essay, available on the internet, is quite comprehensive and worth the time to read—and their summary is fair. Whitlock “argues that the simple framework of ‘hate’ to describe and punish violence is completely inadequate to describe and punish the deeper divisions and schisms in our culture that are the root of the problem. Arresting people, often young people, and placing them, for long periods of time, in prisons that make no attempt at rehabilitation and will undoubtedly subject them to the endemic violence of prisons, are part of the problem, not the solution. Whitlock suggests that the only way we, as a country and a political system, can move beyond a culture of violence is to work from the bottom up, not the top down. We need to address violence and hatred on the most basic interpersonal levels and at the level of small communities. Working within communities, schools, neighborhoods and organizations to examine the racial, economic and psychological reasons that are often underpinning these crimes will move us beyond the simplistic rhetoric of an ambiguously defined ‘hate.’”
Politicians get votes when they sound aggressive on aspects of crime. When they have to face the more difficult job of actual work on the root causes of crime, they seem to take a pass.
Indiana has no statutes titled “hate crimes.” We should keep statistics on occurrences, but to address the underlying problems. If one person murders another, the crime is the same. Those factors should be considered after the person is tried and found guilty, and sentence is imposed.