Why I don’t support hate crime legislation

The topic of hate crimes has been in the news a lot lately with the movement of the Matthew Shepard Act through Congress and the trial and conviction of Lateisha Green’s killer. Many may take it as a given that all members of the queer and trans communities support hate crime legislation and convictions. This is not the case, though. Myself and many other queer and trans organizers and activists oppose this approach to violence against our communities.
It is important to recognize violence motivated by bigotry, and difficult to see alternatives to hate crime convictions as a means to this end. A sense of justice for the family and friends of people who have been killed because of their sexuality or gender identity is also valuable. But the ultimate goal should be to end such violence. Harsher sentencing does not decrease the amount of hate crimes being committed. A focus on sentence enhancement for these crimes does nothing for prevention. 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.
Hate crimes legislation puts the power to bring and pursue such charges in the hands of a law enforcement and criminal justice system that disproportionately targets marginalized communities. As a result, hate crime charges are brought against black folks for allegedly targeting white folks and against queer folks for allegedly targeting straight folks. In fact, as the Sylvia Rivera Law Project (SRLP) points out in their non-endorsement of GENDA, so called anti-white hate crimes constitute the second highest amount reported by the FBI. Self defense in the face of a racist, homophobic or transphobic attack can equal a harsher sentence for the person being attacked in the first place.
Incarceration is supposed to deter crime, and harsher sentencing for hate crimes is supposed to deter crime even more. However, this is not the reality. In fact, longer time spent in prison actually increases recidivism. Our current system of imprisonment is producing more violence, not less. Hate crime verdicts will only add to this sad reality.

While good statistics are hard to come by, at least 30% of the transgender community has been incarcerated at some point. Trans folk are usually assigned to a prison based on the gender assigned to them at birth. While in prison they are disproportionately targeted by violence, including rape and sexual assault. Because trans folk are so unsafe in general population they are often put in solitary confinement, itself a harsh form of torture. As SRLP argues, hate crimes sentencing actually opens more trans folk to violence within prison, a place we seldom think about when considering where violent crime takes place. And, as with the miss-application of current hate crime laws, I fear recognition of gender identity and expression would subject trans folk to increased incarceration.
Supporting harsher sentencing for hate crimes means supporting a prison system that locks up a staggering number of people of color. Many people are not in prison because of violent crimes, but because of things like ridiculously harsh drug sentences. The reality of the prison system suggests they are not about keeping people safe, but rather about keeping black men locked up and outside of civil society. This is a system I do not want to support, and the fact that hate crime legislation does not have any quantifiable positive impact makes it a very poor reason to go against my larger belief about prisons.
There are other ways of dealing with hate motivated crimes. Community based forms of restorative justice that empower those who are targeted by violence and work to eradicate the bigotry that leads to such crimes in the first place are a much more valuable change to work toward than empowering our current criminal justice system even more. Violence targeted at members of oppressed communities must be recognized and addressed, but harsher prison sentences are not the way.
Most of the points I discuss here and other excellent arguments are presented in the Sylvia River Law Project‘s statement of non-support of the Gender Employment Non-Discrimination Act. While their statement is about a New York law the arguments are broadly applicable to hate crime legislation. I fully agree with and highly recommend reading SRLP’s argument against this approach to hate crimes.