A DISCUSSION OF LAW AND JOURNALISM

On Trial for a Hate Crime: What are Hate Crimes and Why Does it Matter?

By John Kosa

Update at the end of this story

So I killed someone.  That makes me a bad guy?” asked Keith Phoenix as he was arrested for bashing in the skull of Jose Sucuzhanay on a chilly December night in Brooklyn.  The New York Times reported that prosecutors are saying “the crime was motivated by hate” and Phoenix and his friend Hakim Scott, are now on trial for murder as a hate crime, manslaughter and assault.

Many crimes are motivated by hate but hating someone is not a crime.  The defendants have pled not guilty to the charge of murder as a hate crime, and their lawyers are spending time in court denying the hate crime charge.

But The Times did not explain what makes a crime a hate crime – and why it matters.

Hate crimes are commonly known as bias crimes.  Under New York Penal Law Section 485.05 a hate crime is a crime committed because of a victim’s race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation.  The crimes specified in the statute include murder, sexual assault, robbery, and arson.

The purpose of hate crime statutes is to punish violence stemming from hate, and to deter intimidation of minority groups by increasing jail time for crimes committed because of who the victim was.  In New York a defendant convicted of second-degree murder will serve a minimum sentence of 15 years; if a defendant is convicted of second-degree murder as a hate crime, that minimum sentence is 20 years.   Same crime, different conviction.  And stiffer sentence.

The night he was murdered, Sucuzhanay, an Ecuadorean immigrant and real estate company-owner, was walking home from a party with his brother.  Phoenix and Scott, who were driving by, stopped and yelled anti-gay and anti-Latino slurs.  (They’d supposed, mistakenly, that Sucozhanay and his brother were gay, and correctly, that Sucozhanay and his brother were Latino). Sucuzhanay kicked their SUV. Phoenix and Scott stopped their van and jumped out; Scott broke a beer bottle on Sucuzhanay’s head and Phoenix beat him with a baseball bat several times, crushing his skull.  Sucuzhanay died a few days later.

This is exactly the kind of crime covered by Section 485.05 – a crime committed because of the victim’s national origin or sexual orientation.  That Sucuzhanay was not actually gay is irrelevant.  The two murderers thought he was, and so they can be charged not just with the lesser crime of murder, but with murder as a hate crime.

Forty-five states, as well as the Federal Government have passed hate crime legislation, yet the laws remain controversial. Some people are opposed to hate crime statutes on the grounds that they infringe on free speech rights.  They point to the 1992 Supreme Court decision R.A.V. v. City of St. Paul, in which the Court struck down a law banning cross burning.  In its decision, the Court held that the statute regulated the expression of certain ideas (racial, gender or religious intolerance) and such content-based speech regulation violated the First Amendment.

New York’s hate crime statute passed in 2000, was modeled after a Wisconsin statute upheld in 1993 by the Supreme Court in Wisconsin v. Mitchell. In that case, Mitchell and his friends, who were black, selected a young passerby because he was white, and beat him until he was unconscious.  Mitchell was convicted and sentenced to four years in jail; two for aggravated battery and two for committing a hate crime. Chief Justice Rehnquist wrote for a unanimous court “The United States Supreme Court rejects the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea. Thus, 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.”

The violence that hate crime statues is designed to protect against need not be directed against people, at least not directly.  Recently, the New York Court of Appeals upheld a hate crime conviction for attempting to firebomb a synagogue.  In upholding stricter penalties for the attack the court stated that the violence, though ostensibly against a concrete building, had actually been perpetrated against people: the members of the synagogue, the court said, were victims of the crime.

Some fundamentalist Christians are worried they will be prosecuted for their hateful speech against gays and lesbians. But as the Supreme Court made clear in Mitchell, hate crime statutes do not punish people for speaking.  What they do is increase the punishment for certain existing violent crimes because of the perpetrator’s motive.

Motive and intent have always been taken into account in punishing criminals.  A premeditated murder carries greater punishment than one committed in the heat of anger or by reckless conduct.  The concept of intent goes back hundreds of years to early common law.

The fissures of America’s culture wars are present in the debate on hate crime laws.  So why have most states enacted such laws?  The cynical amongst us would say it’s because any crime- fighting effort is politically popular, and difficult for politicians to oppose.  But perhaps it is simpler than that:  At its best, America seeks to eradicate prejudices.  It may not be enough.  But it’s something.

Update:   May 7, 2010:   Defendant convicted of murder, but not hate crime.  http://www.nytimes.com/2010/05/07/nyregion/07hate.html

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