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I had this article on my site a few years ago while the State legislature was debating the hate crimes legislation. It was written by Chris Douglas. I’m re-posting it because he needed to find it again, and because it’s an informative and well-written piece.
It’s quite long, though, so I’m putting the body of the piece below the jump.

“All identical criminal acts are the same, regardless of motivation.”

Under Indiana law, crimes are treated differently according to their victim who got arrested for drug crimes, their impact, and their intent. Indiana law already provides for enhanced penalties when the victim of battery is deemed to be among society’s vulnerable (under the age of 12, over the age of 65, or mentally or physically infirm) or when the battery is deemed especially injurious to public peace (battery on a police or corrections officer.) (HB1011 does not provide for enhanced penalties.) That which may be legal (a job action or a false statement) becomes illegal if improper motivation is involved (bias against an employee’s race or intent to defame or defraud).

Though battery arguably is battery, the House passed without a single opposing vote in this session a measure (HB1192) that would provide for a special fine in the case of domestic battery, with that fine going to fund education and training to prevent domestic abuse. This legislation represents a model: providing an enhanced penalty that reinforces a State measure seeking to prevent through education such crimes from occurring. (HB1011 does not provide for enhanced penalties.)

Further, testimony provided in the House established that crimes of bias are qualitatively different. For instance, vandalism promoting a school rivalry does not produce the terror, loss of confidence in personal safety, or threat to all other similar citizens that sharp racial, religious, or sexual derision produces when etched on the property of an isolated minority member of a community. Nor is it meant to.

Conservative George Will acknowledged this point in a column written in 1998. “Some motives for seemingly similar deeds are so much worse than others that they make some deeds different not only in degree of odiousness but in kind: Painting ‘Beat Michigan’ on a bridge is not quite the same offense as painting ‘Burn Jews’ on a synagogue. Surely the criminal law can take cognizance of such distinctions.”

“To target specifically one type of crime diminishes the victims of other crimes.”

This argument is raised in objections only to legislation targeting crimes resulting from prejudice. In the debate on domestic battery (HB1192) in the Indiana House, no representative rose to object that targeting and assessing an additional fine for domestic battery “diminishes the victims of other batteries.” The bill passed unanimously. Rather, to identify, isolate, and combat specific types of crime must be considered among the most effective and accepted approaches to reducing crime in general.

“Hate crime legislation is a threat to First Amendment rights to freedoms of expression.”

Hate crime legislation poses no threat to the First Amendment, according to a unanimous decision (Wisconsin V. Mitchell) by the US Supreme Court in 1993 authored by Chief Justice Rehnquist and supported by conservative Justices Antonin Scalia and Clarence Thomas. In a decision concerning battery and murder, the court ruled:

“A physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment.”

“The First Amendment does not protect violence.”

Further, the Court upheld enhanced sentencing for bias crimes, crediting Wisconsin’s argument that bias-motivated crimes warranted enhanced penalties because they are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest. “The State’s desire to redress these perceived harms provides an adequate explanation for its penalty-enhancement provision over and above mere disagreement with offenders beliefs or biases.” The court based its acceptance of this principle on Blackstone’s Commentaries: “It is but reasonable that among crimes of different natures those should be most severely punished, which are the most destructive of the public safety and happiness.” (HB1011 does not provide for enhanced penalties.)

“Hate Crime legislation is redundant to existing legislation.”

On a fundamental level, there are miscreants in society who believe that some groups do not fall within the protection of the laws. This belief, more subtle today than previously, is exemplified by lynch law prevalent in Indiana within the memory of living Hoosiers. Minor or alleged offenses by African Americans prompted the public lynching of them, often with the consent and participation of local authorities. Some criminals still consider that there are minorities who fall outside of the pale of the protection of the law in Indiana. Testimony before the House Judiciary established the public nature of some assaults.

Testimony before the House Judiciary committee also established that in some instances, some law enforcement officers have indeed actively discouraged victims of bias-motivated assault from pressing charges. Mandatory reporting enables the State to compare independent reports with those provided by law enforcement authorities and raise questions should an incident appear to have gone unreported, thereby encouraging authorities to take such incidents seriously.

“Hate crime legislation amounts to an unusual and unwarranted intrusion into the thinking process of the accused.”

Both civil and criminal law regularly require an often difficult assessment of motivation, intent, and understanding. In the case of fraud, for instance, a false statement is not a false statement. An accused must be shown to have known that a statement was untrue and to have made it with the intent to defraud.

Rape, a crime already recognized and targeted as an especially egregious form of assault, threatening to the long term mental and physical welfare of its victims and to our society’s underpinnings, receives specific and harsh sentencing based on a finding of the absence of consent understood between victim and assailant.

It is noteworthy that an anonymous rapist is often especially pursued by law enforcement, because he is recognized not only as a repeat threat to the victim, but a possible threat to all women in the community. Thus, while those not of the same class, notably men in this case, may feel no threat, the entire class of victims (women) feels the threat acutely. The same is true of all crimes of bias, and explains why one racist attack can afflict the sense of public safety of all members of a given race in that community. (Laws that specifically target the form of assault called rape provide a sound template for the understanding of hate crime legislation, as well as for the educational measures likely to reduce the occurrence of such crimes in our communities.)

Finally, regarding acts motivated by bias against classes of people, 1964 civil rights laws prohibiting discrimination on the basis of “race, color, religion, sex, or national origin” already establish that enforcement must assess the thought processes of the accused. Indeed, these laws make an action which might have been legal, such as denying a promotion, illegal if the denial was on the basis of a person’s religion, race, etc. According to Chief Justice Rehnquist’s opinion in Wisconsin V Mitchell, “motive plays the same role under the Wisconsin Statute as it does under federal and state antidiscrimination laws, which we have previously upheld as constitutional.”

“It is difficult to determine what a hate crime is.”

This assertion is generally not true. First, the criminals perpetrating bias-motivated crimes typically enunciate in some form the reason for their attack. In the instance of aggravated assault in Muncie in 1999, before commencing their murderous attack, the assailants announced their intent publicly in a local establishment to kill a gay man. The mob that attacked a gay man in Gas City similarly stated their motivation repeatedly. Commonly, vandalism or destruction of property is often accompanied by derisive epithets scrawled in some form and is often notable for its extraordinary selectivity in targets.

More troubling, hate crimes typically involve a heightened degree of violence. A string of robberies in northwest Indianapolis proceeded to aggravated assault only when the robbers recognized their victims as being gay. Their motivation was evident not only in their words, but in an extreme departure from their criminal modus operendi when they encountered a target of their hate. Finally, as with all crimes, if no evidence sustains the allegation of bias motivation, then bias motivation should not be reported.

Currently, the State of Indiana provides for voluntary reporting by law enforcement agencies of hate crimes. Procedures are already in place and consistent with those established by the Federal Bureau of Investigation through its Uniform Crime Reporting (UCR) Program.

“The determination of a hate crime makes a law enforcement officer a judge.”

Provided guidelines are in place, the judgement required is no more onerous, and has less impact, than others levied by this legislature in past and current sessions. The police officer is making a judgement of a hate crime only for reporting purposes for the UCR; The UCR Program specifically collects data on known offenses and persons arrested or charged by police departments; findings of a court, coroner, jury, or the decision of a prosecutor are never recorded since the intent of the data collection is specifically to assist in identifying the law enforcement problem. Under HB1011, the officer’s judgement as no further impact.

Further, law enforcement officers are frequently asked to stand in judgment in some manner that has far more impact than mere reporting. HB1192 concerning domestic battery passed the House unanimously, and empowers a police officer to arrest a person in the absence of a judge’s warrant if the officer has probable cause to believe that person has committed domestic battery. Under previously passed law, the officer may rely upon an affidavit executed on the spot by an individual alleged to have direct knowledge of the incident in order to establish probable cause. Law enforcement officers are also, in lieu of a warrant, empowered to arrest a person they believe may be involved in stalking or in an invasion of privacy, both of which require the officer to collect facts and render a judgment.

“The inclusion of sexual orientation places the State on slippery slope to the legitimization of same sex relationships.”

There is a clear distinction between monitoring violence motivated by bias against a minority sexual orientation and approving of same sex relationships. This clear distinction is recognized by the most ardent opponents of equal rights for same-sex couples.

In January 2000, the Indianapolis Star editorialized: “It’s nonsensical to exclude a given minority group from the list, especially if that group represent the second most common victims of hate crimes, as gays are. To exclude sexual orientation could be wrongly perceived as an invitation to violence against gays.”

The Rev. Jerry Falwell himself has decried hate and violence against gays and lesbians, writing in November of 1999: “It is wrong to hate homosexuals; and those who lift a violent hand against them invite the wrath of God upon themselves.” Rev. Falwell also condemned any form of violent attack on those who, based on their own religious views, take issue with homosexuality. It’s important to note that hate crime legislation would track both forms of violence equally.

Echoing Rev. Falwell, in committee hearing in the House Judiciary, Representative Ulmer (R, Goshen, a former deputy prosecutor) expressed his disapproval of same-sex relationships, but asserted strongly that homosexual citizens have a right to safety. Rep. Ulmer favored not only reporting provisions, but provisions for enhanced penalties. (HB1011 does not include enhanced penalties.)

Hate Crime Legislation, inclusive of sexual orientation, is endorsed by the American Friends Service Committee, the American Jewish Congress, the Arab American Institute, Church Women United, the Congress of National Black Churches, the Episcopal Church, the Evangelical Lutheran Church of America (Governmental Affairs Office), the Interfaith Alliance, the National Council of Churches of Christ, the Presbyterian Church (Washington Office), the Union of American Hebrew Congregations, the United Methodist Church, and the YWCA of the USA.

“Hate Crime legislation would not prevent a single crime.”

Although some isolated studies are now becoming available that show some impact of such legislation, experts believe it is too soon to demonstrate the positive impact of such legislation. First, hate crime legislation provides for gathering and reporting of statistics not previously systematically available; some time must pass before law enforcement reaches necessary scope and efficiency in its reporting. In early years, reported incidents will grow in numbers, reflecting increased reporting efficiency, not increased number of incidents. Second, many years are required for the impact of legislation establishing the rights to safety of citizens regardless of status to influence the consciousness of the segment of the population disposed to think otherwise. (Tending to range in ages from 12 to 22 years of age, perpetrators of hate crimes are more influenced by their perceptions of social acceptability of such acts.)

Nevertheless, hate crime legislation is considered by many law enforcement authorities to be an important tool in enforcement and crime reduction. Treating a 15-year-old vandal more seriously for spray painting an epithet establishes in his mind society’s protections for those he may seek to isolate and threaten. Such a message to a 15-year-old graffiti vandal is important to discouraging him from becoming a 16-year-old destroyer of property.

We are able to present testimony from Indiana law enforcement authorities who consider that even the reporting provisions will prove helpful. A law enforcement officer, addressing youths suspected of targeting a minority citizen with low-level vandalism, would be able to advise them that Indiana views such acts differently from mere youthful indiscretion and that reports of such acts must be provided to the State and attract the attention of the FBI. Such treatment would assist in preventing the escalation of the crime into more serious property damage or physical attack. (Indeed, it is in the treatment of lesser crimes that hate crime legislation has its greatest force. By the time of a murder, a hate-inspired criminal career has already culminated.)

For these reasons, hate crime legislation is supported by the Indiana Prosecutor’s Association, the National Sheriff’s Association, the Federal Law Enforcement Officers Association, the International Association for Chiefs of Police, the Police Executive Research Forum, the Police Foundation, the US Conference of Mayors, Hispanic National Law Enforcement Association, and the National Organization of Black Law Enforcement Executives.