Do hate crime laws work?

"We have seen a man dragged to death in Texas simply because he was black. A young man murdered in Wyoming simply because he was gay. In the last year alone, we've seen the shootings of African Americans, Asian Americans, and Jewish children simply because of who they were. This is not the American way. We must draw the line."
-- President Bill Clinton, final State of the Union Address, January 27, 2000

IT WAS a year-and-a-half after the horrific torture-murder of James Byrd Jr., the African American man who was assaulted, chained to a pickup truck and dragged for three miles by three white men in Jasper, Texas, a crime that the New York Times called "one of the grisliest racial killings in recent American history."

A few months later came the similarly brutal killing of Matthew Shepard, a 21-year-old gay man who was savagely beaten and left to die in Laramie, Wyoming.

The perpetrators in both cases were slapped with severe punishments--life sentences for Shepard's killers, and two death sentences and one life sentence for Byrd's. Nonetheless, in the emotional public upheaval that followed, both cases became rallying cries for the passage of state laws to toughen the sentences for hate-motivated crimes.

On the federal level, laws were already on the books defining race-motivated violence as hate crimes, but the same was not true of crimes against the LGBT community. The Matthew Shepard case would set the stage for a 10-year fight to pass federal hate crimes legislation to protect LGBT people. Leading the charge were such influential groups as the Human Rights Campaign (HRC), the country's largest gay-rights organization.

Despite the fact that when it came to other issues--"don't ask, don't tell" or marriage equality--the Clinton administration was no friend of gay rights, the White House and congressional Democrats threw their weight behind hate crimes legislation. And no wonder; with Clinton presiding over some of the most expansive criminal justice reforms in U.S. history, anyone lobbying for tougher sentencing in the 1990s was in good company. In Congress, supporting hate-crime laws gave Democrats a chance to look tough on crime while also throwing a bone to the LGBT community.

"We hope Congress will heed this call and put aside politics to protect our nation's citizens from the brutal hate crimes that claimed the lives of Matthew Shepard and James Byrd Jr.," Elizabeth Birch, executive director of the Human Rights Campaign, said in November 1999.

Almost 10 years later, on July 16, 2009, the U.S. Senate finally passed the Local Law Enforcement Hate Crimes Prevention Act, otherwise known as the Matthew Shepard Act, as an amendment to the 2010 National Defense Authorization bill, by a strong bipartisan vote of 63-28. The amendment extends federal hate-crime laws to include crimes that target a victim based on his or her "actual or perceived" gender, sexual orientation, gender identity or disability.

The Matthew Shepard Act is likely to be signed by President Obama, marking a major victory for HRC and other groups that have fought hard for it over the past 10 years. But even as many see this as a cause for celebration, nearly a decade after Clinton's final state-of-the-union address urged Congress to "draw the line" on hate crimes, the practical value of hate-crimes legislation remains dubious.

Despite supporters' contention that they will make vulnerable communities safer, there is little proof that the tougher sentencing that comes with hate crimes legislation prevent violent crimes against minority groups. Meanwhile, the U.S. prison system continues to swallow up more and more Americans at a record pace. With one in 100 Americans behind bars, is a fight for tougher sentencing really a fight worth waging?

IN 2007, the Dallas Morning News ran an editorial titled "The Myth of Deterrence," which took on the canard that maximum penalties would protect people from violent crime:

In theory, the death penalty saves lives by staying the hand of would-be killers. The idea is simple cost-benefit analysis: If a man tempted by homicide knew that he would face death if caught, he would reconsider.

But that's not the real world. The South executes far more convicted murderers than any other region, yet has a homicide rate far above the national average. Texas' murder rate is slightly above average, despite the state's peerless deployment of the death penalty. If capital punishment were an effective deterrent to homicide, shouldn't we expect the opposite result? What's going on here?

"The devil really is in the lack of details," the paper concluded. " At best, evidence for a deterrent effect is inconclusive, and shouldn't officials be able to prove that the taking of one life will undoubtedly save others? They simply have not met that burden of proof, and it's difficult to see how they could."

The arguments for enhanced sentencing in hate-crimes legislation takes a similar tack, arguing that tougher sentencing will protect LGBT communities by putting "would-be perpetrators on notice," in the words of the HRC.

But will a white supremacist really refrain from harming another person who he or she believes to be fundamentally inferior over the distant chance it might mean more jail time? Would Byrd's or Shepard's killers have stopped to rethink their violent, hate-fueled crimes?

"Even as national lesbian-and-gay organizations pursue hate-crimes laws with single-minded fervor, concentrating precious resources and energy on these campaigns, there is no evidence that such laws actually prevent hate crimes," Richard Kim wrote in The Nation in 1999. Ten years later, there still doesn't seem to be a lot of data to support this claim.

In 1999, some 21 states and the District of Columbia had hate-crimes laws on the books. Today, 45 states have enacted hate-crime laws in some form or other. Yet the trend has not been a lowering of hate crimes. In 2006, 7,722 hate-crime incidents were reported to the Federal Bureau of Investigation in 2006--an 8 percent increase from 2005.

The data: 2,640 were anti-Black (up from 2,630 in 2005); 967 were anti-Jewish (up from 848 in 2005); 890 were anti-white (up from 828 in 2005); 747 were anti-male homosexual (up from 621 in 2005); 576 were anti-Hispanic (up from 522 in 2005); 156 were anti-Islamic (up from 128 in 2005).

Hate groups also appear to be on the rise. According to the Alabama-based Southern Poverty Law Center, the number of hate groups has increased by 54 percent since 2000.

Speaking before the Senate vote on July 16, Sen. Patrick Leahy (D-Vt.), declared, "this legislation will help to address the serious and growing problem of hate crimes." But as one San Francisco Chronicle columnist recently asked, bluntly: "If hate-crime laws prevent hate crimes, shouldn't hate crimes be shrinking, not growing?"

Whether hate crimes are on the rise because more crimes are being classified as such is another question. But the data leave the question of deterrence unanswered.

Regardless, the deterrence argument has been embraced by Democratic politicians. Speaking in favor of the Matthew Shepard Act, Rep. Jan Schakowsky (D-Ill.) cited the crimes of Benjamin Nathaniel Smith, a white supremacist who killed two people and wounded nine others in a violent "spree" in 1999, apparently targeting Jews and African Americans. California Democrat Rep. Mike Honda cited the case of Angie Zapata, an 18-year-old transgender woman who was beaten to death in Greeley, Colo., last year.

But, as with the Clinton administration, the real political value of this recent round of votes was that it gave politicians a chance to appear tough on crime while also appearing to support gay rights. A number of those Democrats who supported the Matthew Shepard Act have been slow to back measures that would actually bestow equal rights on LGBT people. Sens. Max Baucus of Montana, Kent Conrad of North Dakota and Herb Kohl of Wisconsin, to name a few, all oppose same-sex marriage, yet voted in favor of the Shepard Act.

What's more, a number of Democratic senators who voted for the Shepard Act voted in favor of the Defense of Marriage Act in 1996. Even Nebraska Democrat Ben Nelson, who in 2004 was one of two Democrats to vote in favor of amending the Constitution to limit marriage to heterosexual couples--along with then-Georgia Democrat, and certifiable lunatic, Zell Miller--voted for the Matthew Shepard Act.

Given the years of ad campaigns and political lobbying it has taken to get this legislation through Congress, it seems worth considering whether this is the best use of resources by influential LGBT groups, especially given that, as the Shepard case demonstrated, it is already possible to fully prosecute brutal crimes driven by hate or bigotry.

One expert on hate crimes and deterrence, James B. Jacobs, wrote as far back as 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."

Many LGBT activists agree. As one blogger argued on Feministing.com recently: "Putting our energy toward promoting harsher sentencing takes it away from the more difficult and more important work of changing our culture so that no one wants to kill another person because of their perceived membership in a marginalized identity group."

IN A country that leads the world in incarceration--2.3 million people are lodged in the nation's prisons or jails, a 500 percent increase over the past 30 years--the U.S. criminal justice system most brutally affects those very communities that hate-crime laws, historically, have ostensibly sought to protect.

An example: This summer, a new study found that 1 in 11 prisoners are serving life sentences in this country, 6,807 of whom were juveniles at the time of their crimes. According to the Sentencing Project, its findings "reveal overwhelming racial and ethnic disparities in the allocation of life sentences: 66 percent of all persons sentenced to life are nonwhite, and 77 percent of juveniles serving life sentences are nonwhite."

When it comes to LGBT communities, it is only recently that the "homosexual lifestyle" didn't itself amount to criminal activity in the eyes of the law. (The Supreme Court only overturned laws banning sodomy in 2003.) And the history of police brutality against gays, lesbians and transgender people is hardly history.

Just this month, a gay couple was detained by police in Salt Lake City merely for kissing. A similar incident in El Paso, Texas, led to five gay men being kicked out of a restaurant because the restaurant did not tolerate "the faggot stuff." "Particularly troubling for the El Paso case is that the security officers actually tried to cite laws against sodomy that were thrown out by the U.S. Supreme Court more than five years ago," pointed out one blogger at Change.org.

The criminal justice system has proved to be particularly brutal when it comes to those who are already behind bars, with violence and segregation regularly targeting gays, lesbians and transgender people.

This summer, news broke that prisoners in a Virginia women's prison were being segregated for not looking "feminine" enough, being thrown into a "butch wing" by prison guards. According to the Washington Blade, the Bureau of Justice Statistics "has identified sexual orientation to be the single-highest risk factor for becoming the victim of sexual assault in men's facilities."

Although well-established groups like the HRC, the National Gay and Lesbian Task Force, and Parents, Families and Friends of Lesbians and Gays have poured much energy into hate-crimes legislation, other, smaller LGBT organizations have opposed them on the grounds that toughening the criminal justice system will do little to further tolerance or equality for LGBT people, particularly given the fact that they continue to be targeted by the very same system.

Many more radical LGBT groups reject hate-crimes legislation on the grounds that the any further expansion of the criminal justice system is at odds with their fight for human rights.

In a letter this spring to supporters of New York's Gender Employment Non-Discrimination Act (GENDA)--which includes a provision that would enhance sentences for existing hate crimes--a coalition of local advocacy groups wrote:

It pains us that we cannot support the current GENDA bill, because we cannot, and will not, support hate-crimes legislation.

Rather than serving as protection for oppressed people, the hate-crimes portion of this law may expose our communities to more danger--from prejudiced institutions far more powerful and pervasive than individual bigots. Trans people, people of color and other marginalized groups are disproportionately incarcerated to an overwhelming degree.

Trans and gender-nonconforming people, particularly transwomen of color, are regularly profiled and falsely arrested for doing nothing more than walking down the street. Almost 95 percent of the people locked up on Riker's Island are black or Latino/a. Many of us have been arrested ourselves or seen our friends, members, clients, colleagues and lovers arrested, often when they themselves were the victims of a violent attack.

Once arrested, the degree of violence, abuse, humiliation, rape and denial of needed medical care that our communities confront behind bars is truly shocking, and at times fatal.

The Human Rights Campaign argued that passage of the Shepard Act would "put would-be perpetrators on notice that our society does not tolerate bias-motivated, violent crime." But what happens when the perpetrators are those whose duty it is to supposedly enforce the law?

JUST BEFORE the vote on the Shepard Act on July 16, Alabama Republican Sen. Jeff Sessions--an opponent of the legislation who could hardly be less tolerant of LGBT rights--pulled a cynical maneuver: He introduced three last-minute additions to the amendment, which was widely decried as a transparent ploy to derail the legislation.
One of them would make the federal death penalty available for prosecutions of hate crimes, an idea that alarmed the legislation's supporters. "This amendment is unnecessary and is a poison pill designed to kill the bill," reported HRC Backstory (the blog of the Human Rights Campaign).

There's no question Sessions has zero interest in bolstering the hate-crimes bill. But nor does it seem particularly likely that that his maneuver would "kill the bill." After all, as previously discussed, it has been a long time since Democrats had a problem supporting tough-on-crime legislation.

Regardless of its actual strategic value, many of the groups to have fought hard for the hate-crimes bill have sent messages asking Congress to oppose the Sessions amendment.

"The death penalty is irreversible and highly controversial--with significant doubts about its deterrent effect and clear evidence of disproportionate application against poor people," read a letter signed by a long list of advocacy groups, from the Anti-Defamation League to the HRC to the NAACP, which reminded legislators that "no version of the bill has ever included the death penalty."

The National Gay and Lesbian Task Force, for example, called the death penalty a "state-sponsored brutality that perpetuates violence rather than ending it," saying, "It is long past time to send a clear and unequivocal message that hate violence against lesbian, gay, bisexual and transgender people will no longer be tolerated--but it must be done in a way that saves lives, not ends them."

But in a country with largest prison system in the world and the toughest sentences on the books, this discomfiting run-in between supporters of tougher hate-crimes legislation and the "ultimate punishment" seemed almost inevitable.

Indeed, it is emblematic of a fundamental flaw at the heart of hate-crimes legislation: Human rights groups that lobby for tougher sentencing may believe that, despite all its ugly dimensions, the criminal justice system can be used for more noble ends, to force bigoted elements within society to change and to protect vulnerable communities. But at the end of the day, it amounts to the same classic "tough on crime" canard, just tailored to more liberal sensibilities.

First published at AlterNet.org.