Are Hate Crime Enhancers Effective?

[jesse_the_k]

The Atlantic’s late June podcast "The Experiment" explores "Do Federal or state hate crime laws make a difference?" The reporter, Tracie Hunte, discusses hate crime enhancers with experts who are also all possible targets of hate crimes. Some — the widow of someone murdered for being South Asian — strongly support these legal tools. Others — legal scholars, a judge, and a philosopher — oppose them. The show is a coproduction with WNYC, so it’s free to access on that web site:

https://www.wnycstudios.org/podcasts/experiment

It was a fascinating episode. My conclusion was that increasing penalties for hate crimes is more a gesture to make legislators feel like they’re doing something than a policy which changes behavior. I did learn that the US Department of Justice was created after the Civil War for the express purpose of ensuring formerly-enslaved people's rights — and I was dismayed to realize that was news to me. I was never taught U.S. history in school.

Audio

https://www.theatlantic.com/podcasts/archive/2021/07/hate-crime-legislation-history-activist-resistance/619504/

Transcript

https://web.archive.org/web/20210730062555if_/https://www.theatlantic.com/podcasts/archive/2021/07/hate-crime-legislation-history-activist-resistance/619504/

Open "The Experiment" in your favorite podfic program
https://pod.link/1549704404

Excerpt

Hunte:

Hate-crime laws focus on the individual, and you can’t fix systemic racism by punishing individual acts of hate.

Jami Floyd:

No. One, I think hate crimes are very problematic because of the First Amendment issue. I mean, I’m really, now, just speaking as sort of an academician, intellectually: Are we prosecuting words? Are we prosecuting thoughts?

Hunte:

This question of whether hate-crime laws violate the free-speech rights of defendants has been tested in court.

Floyd:

And the big case on this is Wisconsin vs. Mitchell. By the way, here’s the interesting fact: The case involved a group of Black men—Black men and boys—who had just seen the movie Mississippi Burning, getting us back, right, to the 1960s.

Violence motivated by racial hatred is a problem we’ve been trying to solve in this country for more than 150 years.

And that’s because the U.S. didn’t begin as a multiracial democracy. It’s had to reverse-engineer one, writing laws and changing the Constitution to give more groups of people their rights. But when some disagree with this progress, they turn to violence and intimidation to stop it. And when things go wrong—a pandemic, a war, crime, terrorism, the economy—there’s always someone to blame.

Which is why it seems like hate-crime laws are more of an attempt to name a problem, but not solve it.

Comments

[isis]

Jane Costen's NYT podcast The Argument did an episode on this, too, March 31 of this year. It's free on podcast apps (I use Antenna). The format is that Jane moderates a discussion between two people with opposing views, in this case Kevin Nadal, professor of psychology at John Jay College of Criminal Justice, and Steven Freeman, vice president for civil rights at the ADL. They also talked about the Atlanta spa killings. Mostly they came to agreement on the idea that when there is no applicable other law (like, placing an object on someone's lawn and setting it on fire, where it doesn't damage the property, is not actually illegal, so how do you prosecute cross burning where there is a symbolic message) hate crime laws are useful and important, but if there is already an applicable law (murder is illegal) hate crime legislation is basically feel-good and a way to signal to the involved communities that they're being taken seriously.

[jesse_the_k]

Ahhh, thanks for the pointer!

I'm torn when thinking about the burning cross. Our legal system has evolved to recognize harassment, but that's a civil tort, not a crime. Hmmm.

Looking forward to learning more tomorrow when I listen.

[jesse_the_k]

That episode was great -- it explored the muddy middle where my initial podcast staked out the extremes. All present did a good job reminding listeners that the reason for hate crime enhancers is hate crimes terrorize people with marginalized identities.

Which makes me wonder if domestic violence would ever be prosecuted as a hate crime? I'm old enough to remember how hard advocates worked to educate The System that domestic violence is worth acknowledging.

[adrian_turtle]

This reminds me of something I read a lot about back in the 20th century, about the criminal justice system in general. (Not hate crimes. Just white-on-white murder and things like that.) They did a lot of research about the effects of different kind of sentencing, and it turned out making prison sentences longer didn't make them more effective at deterring crime. People don't stop and think "I want to kill my neighbor, and it's worth going to prison for 10 years to have him dead, but it wouldn't be worth 20 years." They think "I want to kill him and I won't get caught." Or they just don't think. There was a pilot program to reduce all sentences by 30%, across the board, keeping them all proportional to each other. (Might have been 50%.) They were still just as effective at deterring crime, and it saved lots of money. It didn't go anywhere, probably because the prison industrial complex is such a powerful lobbying group. I don't even remember what state tried it.

So I think we need to consider what it means for a law to be "effective." We have laws against rape, and those laws have value despite the ongoing prevalence of rape. Taking rape laws off the books would be a statement of what we consider important and worth protecting, and what we don't.

Indeed

[jesse_the_k]

Right you are: hate crime "enhancers" are all about "sending a message" -- but I don't know if the relevant folks have even turned on their radios.

[davidgillon]

The way the UK system works is that establishing any crime as having a hate crime element ups the sentencing tariff*. My personal opinion is that the increased tariff is justified as there's an element of attack on a person's self that isn't necessarily obvious to the judge. TLDR it's a more serious crime than is obvious to a white male deciding on the sentence, so they need their elbow jogging to get it right.

We do have a specific problem to getting that to work with disability hate crimes. There's a much longer established tariff uplift for crimes against 'vulnerable people', and judges almost inevitably go for that instead, because they feel disabled people are _obviously_ vulnerable, and that it's difficult for the prosecution to prove a disability hate motivation. My position is we need to get rid of the whole 'vulnerable person' thing, because it's perpetuating a view of disabled people as less than adult.

Personally I'd say anyone deliberately selecting a disabled person as their victim is clearly demonstrating a disability hate motivation, just as someone deliberately selecting someone for one of the other protected characteristics would be considered to be demonstrating a hate motivation, and I know there's wider sympathy with that view among the disabled campaigners, but the legal types are effectively arguing that we make logical victims because we're less likely to be able to fight back, and so just targeting us doesn't make it a hate crime. *Headdesk*

* There are couple of specific 'incitement to hate crime' crimes, but they only apply to race and religion, not the other protected characteristics. This is increasingly acknowledged as a problem by the legal establishment and we're campaigning to fix it.

[jesse_the_k]

Ooo, arghh, deploying "vulnerable adult" is many kinds of wrong -- although it can be true. Most especially for people in care homes, where predators can nestle in and exploit people with almost zero chance of discovery.

US program is also all about increasing sentence length. I hope somebody's researching whether it makes a difference.

[davidgillon]

My counter to the 'vulnerable' argument is that it's context dependent. Anyone can be vulnerable, even special forces guys, if the context of the immediate situation puts them at risk. Most disabled people are no more 'vulnerable' than anyone else. But unfortunately the law doesn't see it that way.

WRT sentence length, I don't see tariff uplifts as an effective deterrent measure (and our sentences are in general much shorter than yours, so proportionally the uplifts are probably more significant), because the average hate crime perpetrator is too stupid to know about them, but I do see them as essential to making the courts and judiciary treat the cases seriously enough.