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Loving Hate: Why Hate Crimes Legislation is a Bad Idea [8 February, 2009]

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The Matthew Shepard Act (H.R.  1592) would expand the 1969 United States federal hate-crime law to include crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity, or disability.  The bill also requires “the FBI to track statistics on hate crimes” against transgender people.

Increasingly, public opinion appears to be shifting in favor of the Act.  The fact that Barack Obama has pledged his support for the expansion of the bill and that many Republicans are against it makes it seem like this is a fairly simple battle between the forces of good and evil.

But if you read, for instance, the HRC or NGLTF descriptions of the proposed amendment, there’s no discussion of the consequences of the Act.  How, you might wonder, is this Act to be put into practice?  Who benefits from it being in place?  Does it really end bigotry and intolerance?  And does it really end hate?

In their book, Hate Crimes: Criminal Law and Identity Politics, James B.  Jacobs and Kimberly Potter point out that, strictly speaking, “hate crime” isn’t about hate, “but about bias and prejudice.” Essentially, the term “hate crime” refers to criminal conduct motivated by prejudice.  I recommend the book to anyone interested in reading a nuanced appraisal of the real consequences of hate crimes legislation.  Drawing partly on their work and on my own research over the years, I’m going to quickly detail the reasons why hate crimes legislation is a bad idea.  Later work of mine will look at specifics of the law and statistics.  For now, I offer some broader reasons why hate crimes legislation is a bad idea.

Penalty Enhancement

Hate crimes legislation is designed to provide penalty enhancement (something that most of its supporters don’t dwell upon).  In short, the murder of an individual is considered more heinous if the murderer commits the crime on account of a demonstrated prejudice against a particular group.  So, if someone yells “fag,” during a murder, he or she will see more years in jail and even possibly the death penalty.

There are several problems with this.  First is the murky question of how to discern one type of hatred, say against gays, from other forms of hatred that might be simultaneously felt during the commission of a crime - say, against someone who has more money than you, has “stolen your spouse,” etc.  Second is the issue of why and how we determine that one particular kind of prejudice/hatred is somehow worse than others.  And third, how do we decide how many more years are worth adding on to a sentence because of the nature of the hate/prejudice?

All Victims Are a Protected Group

I think Jacobs and Potter put it best: “...when it comes to crime, all victims are a protected group.  Why should some victims be considered more protected than others?” We could also extend that, as they do, and ask: Does hate crimes legislation do anything more than punish ideology?  Again, from Jacobs and Potter, “Hate Crime” is a social construct.  ...  it focuses on the psyche of the criminal rather than on the criminal’s conduct.  It attempts to extend the civil rights paradigm into the world of crime and criminal law.”

In other words, as they also point out, the language of “hate crimes” also emerges from the language and agenda of civil rights and affirmative action legislation, which has to speak in terms of “protected groups.” The problem with hate crimes legislation is that we’re attempting to right a societal problem, the very real and demonstrable forms of bigotry and prejudice against specific groups, with the enactment of legislation which calls for a system of surveillance and punishment that only deals with those issues from the perspective of crime and punishment.

No one can deny that particular groups are in fact treated with discrimination and even violence.  But rather than ask how about how to combat such discrimination and violence, we’ve taken the easy route out and decided to hand over the solution to a prison industrial complex that already benefits massively from the incarceration of mostly poor people and mostly people of color.  It’s also worth considering the class dynamics of hate crimes legislation, given that the system of law and order is already skewed against those without the resources to combat unfair and overly punitive punishment and incarceration.

Let’s be honest: we already think that bigots and “haters” are just “low-class punks and thugs” anyway.  It’s easy to put a twenty-year-old Pilsen Latino in jail for six to ten years because he yelled “fag” while stealing a gay man’s wallet.  Does that solve the problem of homophobia and bigotry in the boardroom?  Do we even have ways to discern and address the latter?

Hate Crimes Legislation Is Ineffectual

Which brings me to the issue of how utterly ineffectual hate crimes legislation is in terms of addressing the very real violence against the very bodies it claims to protect.  Sure, we can find more ways to document harassment and violence against transgender bodies and to put people away forever for the same.

But what do we when the violence is committed by the system itself?  What do we do with the case of Victoria Arellano, a transgender undocumented immigrant who died shackled to her bed in Immigration and Customs Enforcement detention after being denied her AIDS medication?  Does the system that brought about her death have a way of accounting for its own “hate crime?”

Hate crimes legislation has a murky history, which I won’t go into here for reasons of space.  But it’s worth remembering that one reason it’s so popular today is that it’s often the only way for some marginalized groups to claim recognition as a group, and to seek redress for the very real violence their members experience in everyday life.

At this point, for instance, the issue of violence against the transgender community is seen as a real threat.  But do we address that violence by helping the state to perpetrate more violence against the most marginal who already fill our jails?  Or do we think of better ways to address the consequences of bigotry and prejudice?

We already have punishments in place for crimes, even the most violent ones.  Whom does it benefit to enhance penalties for the same?  Mandatory and draconian drug laws have done nothing to impede drug use, and only serve to increase the scope of surveillance against the poorest neighbourhoods, where laws against even the casual use of marijuana are used to haul the most marginal into jail.

Is jailing people for their prejudice really going to curtail bigotry and prejudice?  Or will it just end up policing thought and filling the coffers of the prison industrial complex?

Originally published on The Bilerico Project, 8 February, 2009.  Read comments here.

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