My View: A Good Discussion on Hate Crime Enhancements and the Need to End Them

By David M. Greenwald

Traditionally the debate over whether to have enhanced penalties for hate crimes has been divided somewhat neatly along partisan and ideological lines.  Those on the left have tended to argue that hate crimes are not simply a crime against an individual, but against a whole community.

While at the same time, the right has tended to argue that it is sufficient to charge conduct, and hate crime enhancements too easily bleed into areas of free speech and personal beliefs rather than conduct.

But emerging recently out of a movement to reform the criminal legal system is a progressive view that sees hate crime enhancements as a continuation and extension of a failed carceral system, and that we are not going to eliminate or even combat hate through penalty and legislation.

The Manhattan DA’s race, which the Vanguard covered extensively in an article on Thursday, bears that out.  One progressive candidate, Dan Quart, took hate crime enhancements off the table while several agreed that charging enhancements was problematic.

Dan Quart: “Using bump-ups or enhancements won’t change the conduct, so I don’t support using the felony bump-up in misdemeanor cases.”

Quart believes that the base penalties are sufficient to deal with the problem.

Quart added, “The misdemeanor and felony assault on the statutes are sufficient enough to deal with this problem. But this is of course personal to me. I grew up in Washington Heights in the 1980s, was subject to hate speech and some level of physical assault because of my religion, so I understand it.”

As it turned out, Dan Quart was the only one willing to categorically take it off the table: “I thought I had more company, but that’s okay. Sometimes you have to stand alone for what you believe in. The point is that increased incarceration is not going to change conduct.”

He added that “364 days in Rikers Island is not letting somebody off the hook, or a misdemeanor or a felony assault as well. But I think this is just something… If you’re truly going to stand about principles of decarceration, if you’re consistent with the values many of us have been espousing through 10 months of this campaign, then I think you have to be for…”

But even among those who were not willing to take it off the table, they pushed back against the notion that more punishment was the solution to hate.

Eliza Orlins: “I want to be clear. I do not favor sentencing enhancements. I think that there are incredibly harsh sentences available at the disposal of the prosecutors and I’ve seen them utilized.

“The answer is not more incarceration,” she said.  “There’s no evidence that incarceration, additional penalties, additional enhanced sentencing, or carceral solutions will do anything to combat bias-related instances of violence. It just doesn’t help, it doesn’t work. It’s not the answer.”

She would add, “We need to think beyond policing and prosecution and enhanced sentences and incarceration as the solution to hate-based crimes. And then we need to condemn it in all cases as well.”

Tahanie Aboushi also noted that a hate crime and a hate crime enhancement are separate issues.

She argued that “the hate crime is an enhancement on a substantive charge, which means to say that if someone doesn’t bring a hate crime charge, it doesn’t mean the person is not held accountable.”

But in the race is the more traditional left notion that hate crimes represent more than just the base crime.

Tali Farhadian Weinstein: “I think it’s important to say that what makes a hate crime different from an ordinary crime is that when a hate crime occurs, it’s not just one person who is on the receiving end of the shove or the punch or the act of vandalism, but an entire community, an entire group of people are made to feel unwanted and inhibited and intimated. And that’s why I think we need to name it and to treat it differently from an ordinary crime.”

Diana Florence: “Look, hate crimes are, as Tali also said, right, that they’re directed to an entire community. And it’s really designed to say to an entire community that, ‘You don’t belong and you don’t matter.’”

She added, “So I think it’s imperative to call hate crimes what they are. Understanding that there are enhancements, that does not mean that every single time we need to use prison, but we do need to have it on the table when it’s an act of violence. But we also need to stop being so reactive to hate crime.”

What is the alternative?

Tahanie Aboushi added: “I wanted to say that our presumption would be to focus on restorative justice as we deal with the underlying charges and to reserve these enhancements in just extremely limited circumstances.”

Another progressive candidate, Alvin Bragg, argued, “When I was the head of the Social Justice division at the New York Attorney General’s Office, we saw a huge uptick in hate crimes when Trump was elected. And we took the lead with law enforcement around the state, educating them on the statute.”

He added, “I think it’s so important, whether or not you go on a restorative justice track or whether or not you use enhancement, to call them hate crimes, for the reasons that some of my colleagues have said, but also for data tracking so that we can follow and study this. The data from a government perspective in our state is not great on this.”

Alvin Bragg: “So my inclination is to use restorative justice and use some of the education tools which I have. But to not take off the table, in some of these heinous incidents, the enhancement as well.”

This view is in line with what I argued in my March commentary—we should no longer use hate crime enhancements which simply expand the carceral system and have not been shown to work, and focus instead on restorative justice processes that can at the individual level get those committing hate crimes to better understand the harms caused and urge them to find ways to repair them.

As Dan Quart points out, in a lot of these cases the underlying crime has a sufficient penalty.

The overall problem in the carceral system is that we punish too much, not too little.  And the way to address hate, therefore, has to come from a different approach.

—David M. Greenwald reporting


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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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8 Comments

  1. Eric Gelber

    There’s little evidence that hate crime enhancements have a deterrent effect—punishment rarely does—and they certainly are not rehabilitative. They do little other than make it appear that something is being done to address the problem, when in fact it accomplishes little other than to contribute to prison overcrowding.

    On the other hand, there is a growing amount of evidence that restorative justice is effective—and provides benefits to victims as well as perpetrators. Time to move in a different direction and give new approaches a chance to work.

  2. Bill Marshall

    Eric, I fully agree…

    But am struck also with what appears (no cites) the be the case… ‘white males’ seem to have had ‘hate crime’ charges, enhancement penalties far (disproportionately?) exceeding women, “POC’s”, LGBTQ ++ folk… would be very open to seeing the ‘stats’ if there are any…

    Crimes are crimes… we still have no clue as to the SJ shooter’s “motivations”… and of course, he will not be prosecuted, as he self-tried, judged, and executed himself, apparently… but given his (apparently) selective choice of victims, the question arises, would he have been charged with ‘hate crimes’ had he lived?  9 folk gunned down, dead… even if he lived, would it matter if “hate” was a factor?  [A question not for you, Eric, but for all to reflect on]

    MH issues seem to be VERY much in play in the SJ killings… speculation… we’ll probably never know, for sure… but looks very probable…

    A thought… perhaps ‘hate crimes’ if charged and substantiated, should not be a factor in ‘criminal’ proceedings… but, could play a role in civil ones… just a thought… might affect the recompense (‘restorative justice’?) afforded to victims/survivors… no answer here, just questions… but ‘hate’ is only one pinpoint of light in the ‘constellation’ leading to many crimes… and, I opine that additional criminal penalties/incarceration does not address the other parts of the constellation, but does help ‘sequester’ someone who is a ‘clear and present danger’, to self or others.

     

     

    1. David Greenwald

      “Crimes are crimes”

      So your view falls under the conservative critique of hate crimes.

      One thing a lot of people don’t recognize is that in the penal code, crimes are defined by elements. I do fundamentally agree – especially on the lower end – that hate crimes are substantially different from crimes without the hate element to them. The problem I have is how we handle them, I simply don’t believe that the solution is to throw people into a cage longer.

      1. Bill Marshall

        So your view falls under the conservative critique of hate crimes.

        Your “spin”, David, not factual, not truth…

        I’m rational, unlike most conservatives, progressives, or liberals (most of whom don’t think, but follow “party-lines”)… my views are what all of those love to hate, spin, disparage… am a rational moderate… I do not espouse any one “world view”… I take your quoted part as insulting… P-A, at best…

        Please don’t try to tell me what I believe, why, or to ‘categorize’ me… think that’s called “profiling”, and I believe you are on substantive record as opposing that… which would make you a hypocrite(?)…

        1. Eric Gelber

          Please don’t try to tell me what I believe, why, or to ‘categorize’ me…

          “… (most of whom don’t think, but follow “party-lines”)…”

          See any contradiction here, Bill?

           

  3. Alan Miller

    I agree that hate crime enhancements should be abolished in most cases, just probably not for the same reasons.

    A possibly inebriated individual who yells out “kîke” or  N-word while punching and/or stealing from someone should be prosecuted for their crime.   If they are part of an organized group of white supremacists, they should be prosecuted for a hate crime.  Otherwise, who gets prosecuted for a hate crime and who doesn’t does not reflect who is actually filled with racial hate.  Because a cop checks off a box that the perp yelled a racial epitaph doesn’t prove they are dangerous due their exclamation, maybe either stupid or a racist arse-hole.  If links can be made to racist organizations, then prosecute for hate crime, because organized or as contagion is where racism becomes endemic and hazardous.

    1. David Greenwald

      “A possibly inebriated individual who yells out “kîke” or N-word while punching and/or stealing from someone should be prosecuted for their crime. ”

      Generally that would not meet the elements for a hate crimes enhancement. Contrary to popular perception, hate crimes enhancements require a fairly high standard of proof which is why they often are not met and thus not charged.

  4. Edgar Wai

    What is the alternative?

    In principle of reciprocation, if someonet ries to attack your liberty to be in a community, then the community may take away their liberty to be there.

    Even if the restorative cost of an act of vandalism is $100, the violator of an unfair exclusion crime could be expelled from a community. This mean that if they own property they must sell it, can’t work, live, or be in a community. Much like being subjected to a restraining order.

    Expulsion is not an enhancement to an existing sentence, it is an independent sentence when the violator tried to unfairly expell someone.

     

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