Crimes v. "Hate Crimes"

As reported by Patch  and , there have been several recent instances in Long Beach that either were or are alleged to have been what, in California and most other states, have become known as "hate crimes."

Defining the Terms

Different States include different types of bias in their bias-oriented criminal statutes. All States with these types of laws prohibit violence or intimidation on the basis of race, religion, and ethnicity. Most include gender, sexual orientation, and disability. About one fourth of these States specifically include "transgender" or "gender identity" in the language of their statutes and about the same number specifically mentions age. Five States and three, respectively, include "political affiliation" and "homelessness" in their definitions.

California defines a hate crime in Penal Code Section 422.55(a) as:

...a criminal act committed, in whole or in part, because of one or more of the following actual or perceived characteristics of the victim: Disability, Gender, Nationality, Race or Ethnicity, Religion, Sexual Orientation, or Association with a person or group with one or more of these actual or perceived characteristics.

There are a number of crime statutes that the L.A. District Attorney refers to as Hate Crimes. Readers can read more about these as well as valuable information for victims and witnesses here. The D.A. also identifies what are called "hate incidents" which are actions which may have a motivation in hatred but which do not rise to the level of a criminal act.

Documenting the Offenses

Although federal law requires that the U.S. Attorney General collect data on hate crimes, it becomes almost immediately apparent that there is no single standard for these types of offenses that all States follow.

The U.S. Department of Justice and the FBI have been publishing reports on Hate Crimes as part of the annual Uniform Crime Reports (UCR) since the early 1990's, with the most recent available report published in 2010. Readers can view that report here.

It is important to note that the UCR Hate Crimes Statistics do not capture all of the same data that some States have chosen to document.

For its purposes, the UCR documents: "criminal offenses that are motivated, in whole or in part, by the offender's bias against a race, religion, sexual orientation, ethnicity/national origin, or disability, and are committed against persons, property, or society."

Thus, while law enforcement agencies in California may document a gender-based hate crime, those numbers, if any, are not reflected in the annual UCR Hate Crimes data.

In 2010, the UCR documented ten (10) hate crimes in Long Beach, California. Seven (7) of these were classified under "sexual orientation", two (2) were listed under "race", and one (1) was listed under "religion."

Penalties in California

Depending upon how a hate crime is prosecuted, it can either be:

1. A stand-alone misdemeanor punishable by time in county jail and/or a $5,000 fine and a minimum of 400 hours of community service
2. Proven as an aggravating factor for a separate crime which can turn a misdemeanor into a felony and, upon conviction, become punishable by up to three years in state prison and a $10,000 fine, or
3. Proven as the only motivator in committing a felony which can enhance the traditional prison sentence (for say, robbery) by up to one to four years, depending upon the circumstances

Handling Hate Crimes Differently

I understand the desire to try to prevent people from committing criminal acts as a means of acting on their various biases and hatreds, or, failing in that, to punish such people more severely than others when they commit hate crimes.

Still, I think one can make the argument that enhancing punishments for hate crimes can serve a different and, perhaps, entirely unintended -even wholly discriminatory- purpose.

Let's consider the crime of battery (the unlawful use of force against the person of another.) Two victims, both battered in the same manner (fist to eye) and injured to the very same degree (black and swollen eye but no permanent damage.) Both defendants are arrested, tried, and convicted. The only difference being that "Defendant A" demonstrated some sort of qualifying bias or hatred during the battery, while "Defendant B" did not.

If we sentence "Defendant A" to a harsher penalty for his act than we do "Defendant B", aren't we essentially telling "Victim B" that his injury (although clinically identical) was somehow less significant in the eyes of the court and, so, in the eyes of society? That it was somehow less worthy of the same punishment?

Aren't we telling "Victim B" that he has been somehow less victimized? But how can this be? Both victims suffered identical physical injuries. Both had their person's equally damaged. We should consider "Victim A's" suffering somehow greater, solely because "Defendant A" showed evidence of a qualifying bias or hatred?

How is the handling of this situation not, in fact, discriminatory toward "Victim B"? Also, what does this teach both "Victim B" and "Defendant A"?

Does it teach "Victim B" that if someone ever pops him in the eye again, he should simply claim that his batterer demonstrated some qualifying bias or hatred? In cases where there are no other witnesses, who's to prove otherwise?

Does it teach "Defendant A" that the next time he decides to pop someone in the eye, he should just be more careful to not demonstrate any evidence of his biases and hatreds? If so, and he successfully conceals them, have we really prevented or discouraged him from unlawfully acting upon his hatred, or simply encouraged him to be more careful about concealing it?

Is concealing one's hatred sufficient for society's purposes? Would "Victim A's" eye be any less injured as a result?

Perhaps all identical crimes should be punished identically, just more severely. If we must think in terms of bias or hatred as relates to crime, then perhaps all crime should be considered based in some degree of bias and/or hatred, and, so, perhaps we should punish all crimes more severely than we currently do.

What do you think? I welcome your comments and questions.