Two Cheers for the Hate Crimes Bill
The debate over the hate-crimes bill before the Legislature has occasioned a curious role reversal. Persons heretofore known as liberals, who are generally likely to reject the idea that stricter laws deter crime, are suddenly cheering for harsher punishments. “What we know is that stiffer penalties serve as a deterrent,” said Dianne Hardy-Garcia, executive director of Lesbian/Gay Rights Lobby of Texas, speaking in favor of a hate crimes law in an interview with the Dallas Voice. Meanwhile certain lock-em-up conservatives, normally gluttons for punishment, have likewise departed from their usual stance. “I would be willing to increase the penalties for practically any violent crime on the books in Texas,” said Republican Senator Jane Nelson, a hate-crimes bill opponent, “as long as we do so equitably.”
The specter of tough-on-crime liberals is just one of the oddities surrounding the hate crimes issue. The bill before the Legislature, like the similar bill that failed last session, is named after James Byrd, Jr., which has everything to do with symbolism and very little to do with the actual contents of the proposed legislation. Symbolically, Byrd’s brutal 1998 murder at the hands of three racists reminded Texas and the nation that even today, the worst of crimes are committed solely because of prejudice. Therefore, the thinking goes, we need a hate crimes law. That logic is emotionally driven: Byrd’s murder was a lynching, and as such it recalled the days when horrible crimes against Southern blacks were not only more common, they were tolerated or even community-sponsored. By imposing stiffer penalties on such crimes today, the proposed law implicitly condemns not just the offenses themselves but the past acceptance of them.
As a practical matter, though, the Byrd label is misleading. It allowed George W. Bush to suggest during last year’s Presidential debates that a hate crimes law was unnecessary because, after all, Byrd’s killers had been harshly punished without one. While it’s true that the bill proposes most hate crimes be punished more severely–bumping up the penalty range for an offense to that for the next level of offense, if the jury finds a hate motive–the proposed upgrades would simply not apply to crimes as grave as the one that led to Byrd’s death, i.e. capital cases and first-degree felonies. (Under the law, non-capital cases will not become death-penalty-eligible because of a hate motive, and in death penalty cases, the range of punishment already extends as far as it can go.)
The very name of the bill, then, speaks to both its emotional weight and the confusion over what it might accomplish. The hate crimes debate has been waged primarily on the level of symbols and counter-symbols, which have flowed so freely in committee hearings and press conferences that a trained semiotician ought to be flown in from one of the coasts to explicate the whole process. The star witnesses testifying for the bill have been Byrd’s relatives and members of the Jasper community, whose stirring testimony has reinforced the attention to the bill’s context rather than its content. Meanwhile, the forces arrayed in opposition to a hate crimes law have twisted themselves into Constitutional knots to advocate “laws that treat everybody the same,” rather than acknowledge that they oppose the bill because it recognizes that gay people are discriminated against. This is widely held to be the real reason Bush wouldn’t support a hate crimes bill last session–because he didn’t want to alienate Christian conservatives–and it is the only substantial obstacle before the bill now. “We’re getting close to where we have the votes, and the caliber of the debate is much better than it was in previous years,” says Rodney Ellis, sponsor of the Senate bill. “Now no one is against it for openly homophobic reasons. Now we’re seeing legislators becoming Constitutional scholars all of a sudden.”
There’s no question that hate crimes are a significant problem in Texas: Federal law requires the Department of Public Safety to keep track of crimes that are suspected hate crimes, and in 1997, 1998, and 1999, police reported 360, 330, and 286 incidents respectively. Surely many more go unreported. But will a hate crimes law prove effective in addressing the underlying disorder?
As far as the enhanced penalties go, probably not. In most cases prosecutors already have fairly wide ranges of punishments at their disposal, and even if you do think the swastika-painting idiots of the world need to spend longer terms in prison so that they might fraternize with others of their ilk, it’s worth asking whether that benefit outweighs the risk that in borderline cases–say, a bar brawl during which racial epithets are used–some prosecutors might use the threat of the stiffer sentence to strongarm defendants into guilty pleas.
Given that Texas is already one of the world’s leading jailers, those in favor of raising sentences for any type of crime ought to present some evidence that longer sentences are needed. But even?the DAs themselves don’t seem to feel there’s a strong need for them. A hate crimes law “hasn’t really been one of our big issues,” says Rob Kepple of the Texas County and District Attorneys Association. “Numberwise, in terms of crimes that can actually be prosecuted, there aren’t that many of them. And we’ve got a pretty good penal code to begin with–we already have good tools for getting good punishments.” Travis County DA Ronnie Earle, a vocal supporter of the hate crimes bill, views the law as a symbolic measure. “You can raise awareness with the law, and raised awareness leads to social change,” he says.
At the House Committee hearing on the hate crimes bill last month, several victims of hate crimes told their stories, and even their testimony seemed to suggest why the possibility of harsher sentences may not mean much. One woman told of how a cross had been burned on her lawn, in a well-to-do neighborhood outside Houston. What happened to her was awful, but her case had been tried in federal court, not state court, and the ringleader received a 10-year prison sentence.
Another woman told of how her son, the only Jewish student in the Santa Fe Independent School District, had been taunted and threatened by other students. Texas needs a hate crimes law, she said, because without one “the prosecutor’s hands were tied.” Not so, said that prosecutor, Ella Anderson of the Galveston County Attorney’s office, when I called to ask her about the case. The boys in question were charged with making terroristic threats, a class B misdemeanor; had there been a hate crimes law in place to upgrade the punishment to that of a class A misdemeanor, it wouldn’t have made any difference: “For juveniles, the punishment range is the same,” she noted.
Besides, isn’t the more important question not whether the young offenders get sent to boot camp, but how they came by their views to begin with–and how to prevent other kids from following suit? “What I would like to see with respect to juveniles, and what would be much more effective is education type legislation where schools are required to address these issues,” said Anderson. “I’d like to see more intervention at an early age so I don’t have to get these type of cases.” Ideally, legislation focused on early education and awareness, rather than punishment, would be a better tool to combat hate crimes. (In Texas, though, a bill that mandated any sort of school curriculum component mentioning sexual orientation would be about as likely to pass as a bill that made National Coming Out Day a state holiday.)
The best part of the hate crimes bill has actually already become law: last session, the subsection requiring more diversity training for police was excised from the sinking-ship bill and passed separately. This is needed in towns like Brownwood, where according to deli-owner Steve Harris, who also testified at the House hearing, hate crimes go unregistered. In recent years, an unsolved murder, a sexual assault, and a rape were almost surely hate-related, said Harris. But when Harris examined state hate crimes statistics for the relevant years, he found none had been reported by Brownwood police. “We need police training in reporting, and having somebody in the Attorney General’s office that you can contact and say look, this is going on in Brownwood,” says Harris. The current bill requires the AG’s office to designate such a person.
Still, the law will serve mostly to make a statement, whether it passes or not. “By not passing it you send a message to the entire state that it’s okay to pick on gay people,” Harris says. And if it does pass, says Ellis, “the greatest practical benefit is that of sending a signal to our youth, to the skinheads and hotheads that we won’t tolerate that kind of behavior.” And what about out-and-out educating our youth? “Texas won’t ever be on the cutting edge in this area,” says Ellis, “but if we pass this bill at least we won’t be so far behind.” It’s unfortunate, but probably accurate, that this hate crimes bill is the best we can do. –KO