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.

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27 Comments

  1. lucierohan
    Posted July 22, 2009 at 4:00 pm | Permalink

    I completely agree with everything you’ve said, but I think you should’ve titled this piece “Why I Don’t Support the Crime Sentencing Enhancement Act” or “Why Hate Crime Legislation Should be Revised.” Sentencing enhancement is only one part of hate crime legislation, which otherwise does provide vital funding so that perpetrators of hate crimes can be brought to justice when maybe they otherwise wouldn’t be.
    It’s for that reason that I’m actually really conflicted about not supporting hate crime legislation. Unfortunately the Crime Sentencing Enhancement act i a serious deal breaker for me, because of the social and constitutional issues it raises. I’m glad to see a person with our point of view bringing up these problem in a forum that (as much as i love it) generally overlooks them. I would just suggest that you don’t write off the stronger points of hate crime legislation, because I think the best solution to revise it so that the parts providing to sentencing enhancement is stricken from it.

  2. gwen
    Posted July 22, 2009 at 4:07 pm | Permalink

    Jos, thank you for this post – your thoughts on the subject are really helpful.
    As someone who recently had to deal with homophobic street harassment (only threats, no actually violence, but still very disturbing/enraging), I have been struggling with this one – on the one hand wanting the person (who was a white male by the way) who threatened my partner and I to be punished, and on the other hand realizing that incarceration of someone who had been in and out of the system for most of his adult life (as we later found out from the police officer) would do anything at all to stop him from exhibiting bigoted behavior.

  3. Sehnsucht
    Posted July 22, 2009 at 4:08 pm | Permalink

    You make some very good points here.
    A lot of cops are racist and sexist. Even more of them are gay bashers. I don’t think I even need to mention the insanely high rates of domestic violence within law enforcement families. Hell, in my town there are known Neo-Nazis on the police force. Somehow putting the enforcement of these laws in their hands seems very counter-intuitive.

  4. shsally
    Posted July 22, 2009 at 4:11 pm | Permalink

    Jos, Can you be more specific about what you mean by this?
    “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.”
    What does Community based forms of restorative justice look like to you?
    In the past, I’ve found that when marginalized communities attempt to create a dialogue about violence against them, they end up talking to themselves (ie, the rest of the community doesn’t show up).
    I guess I’m questioning the effectiveness of your proposed solution.

  5. alixana
    Posted July 22, 2009 at 4:14 pm | Permalink

    Harsher sentences for hate crimes has been something I’ve struggled with supporting ever since my days as a criminal justice major. You point out Jos, that one of the goals of incarceration is deterrence, but I think that hate crime sentence enhancement really serves the goal of showing our societal disapproval more. In a sense, it’s more of a public policy statement than it is a tool to reduce hate crimes. I’m not as anti-incarceration as some feminists here are, but I’m never very comfortable about the idea of incarcerating someone just to prove a point (incarcerating someone for murdering another person seems tangibly different than incarcerating them longer because that person was the victim of a hate crime).
    Also, I don’t like the idea of prioritizing or creating a hierarchy out of whose deaths’ matter more. If a man gets beaten and killed by someone who wanted his wallet, it’s just as stupid and senseless of a loss as a man who is beaten and killed because he’s gay. Families are still missing someone, a person is still gone.
    At the same time though, it seems kind of hard to say that I don’t support it, because it sounds like I’m saying that I don’t support the victims. But I do – I still want the perps to be punished for the core crime. It also feels like I’m saying I don’t think that hate crimes are a concrete problem. But that’s not true, either. So, I waffle.

  6. Lily A
    Posted July 22, 2009 at 4:24 pm | Permalink

    “If a man gets beaten and killed by someone who wanted his wallet, it’s just as stupid and senseless of a loss as a man who is beaten and killed because he’s gay. Families are still missing someone, a person is still gone.”
    True… but there is a substantial difference between those crimes. Someone who gets killed for their wallet is certainly an individual tragedy, but someone being killed for their sexual orientation, gender identity etc is part of a climate of fear and persecution for people of that group. Killing someone for belonging to a particular group is a way of oppressing ALL members of that group by creating fear.
    For example, [I am sorry this is somewhat graphic] if a white man is brutally beaten and hung from a tree in the United States, it is certainly a disgusting tragedy. But if this exact same crime happens to a black man, it is a “lynching,” which is a crime used to oppress the entire black population by keeping them in fear. Therefore, while the action is the same, the motivation behind it and the results are quite different.

  7. Lily A
    Posted July 22, 2009 at 4:27 pm | Permalink

    “If a man gets beaten and killed by someone who wanted his wallet, it’s just as stupid and senseless of a loss as a man who is beaten and killed because he’s gay. Families are still missing someone, a person is still gone.”
    True… but there is a substantial difference between those crimes. Someone who gets killed for their wallet is certainly an individual tragedy, but someone being killed for their sexual orientation, gender identity etc is part of a climate of fear and persecution for people of that group. Killing someone for belonging to a particular group is a way of oppressing ALL members of that group by creating fear.
    For example, [I am sorry this is somewhat graphic] if a white man is brutally beaten and hung from a tree in the United States, it is certainly a disgusting tragedy. But if this exact same crime happens to a black man, it is a “lynching,” which is a crime used to oppress the entire black population by keeping them in fear. Therefore, while the action is the same, the motivation behind it and the results are quite different.

  8. Jos
    Posted July 22, 2009 at 4:27 pm | Permalink

    Very important question shsally. There are a number of different models to draw from – I don’t pretend to know the one best form for justice, just that our current system doesn’t work.
    A few existing examples, without endorsing any: I have seen organizing communities take the responsibility into their own hands, spreading information about a rapist who targets their community internally rather than involving the police. South Africa’s Truth and Reconciliation Commission is probably the most famous example. In Afghanistan before the U.S. empowered repressive warlords many communities dealt with crime through community meetings where perpetrators had to face the entire family of whoever they attacked, with community elders arbitrating.
    I’m sure others reading this blog can give other examples. Basically, I put much more faith in those who are most impacted by violence responding than trusting in an incredibly violent state. The prison system we’ve had since the 1700′s is only one option of many.

  9. shsally
    Posted July 22, 2009 at 4:33 pm | Permalink

    The Truth and Reconcilation Committee is a great example. I will be sure to bring that up when other people raise this question. (I actually talk about hate crime legislation a lot with friends and family.) Thank you!

  10. chalicechild
    Posted July 22, 2009 at 4:58 pm | Permalink

    There’s a great compilation of critiques about hate crime legislation here: http://www.blackandpink.org/revolt/a-compilation-of-critiques-on-hate-crimes-legislation/

  11. palisades
    Posted July 22, 2009 at 5:02 pm | Permalink

    I have different views on hate crimes legislation, but I just wanted to thank you for such a great post on the issue. Your writing so far has been consistently well researched and very thoughtful – I’m glad the feministing team brought you on board!

  12. LalaReina
    Posted July 22, 2009 at 6:36 pm | Permalink

    Great article Joe and it expressed some of my unspoken thoughts. But I can’t dismiss some of the pro arguments either…so I’m open to the dialogue.

  13. msfreeh
    Posted July 22, 2009 at 7:01 pm | Permalink

    to view a partial list of crimes committed by FBI agents over 1500 pages long see
    http://www.forums.signonsandiego.com/showthread.php?t=59139
    to view a partial list of FBI agents arrested for pedophilia see
    http://www.dallasnews.com/forums/viewtopic.php?t=3574

  14. SillyCat
    Posted July 22, 2009 at 7:09 pm | Permalink

    I think it’s also important to remember however that juries are made up of often bigoted people who may assign less value to the life and well-being of a minority. I can think of two international court cases in the last year alone where a jury gave lesser sentences to individuals who had murdered Jews than those sentences which would be considered standard. I am absolutely positive that the circumstances probably often are, very similar for the sentencing of those attacking people of color, gays, and transgendered individuals. Hate crimes legislation mandates minimum sentencing for those juries who feel that the victim’s status as a minority should function as a mitigating factor for the perpetrator.

  15. kathryn
    Posted July 22, 2009 at 7:14 pm | Permalink

    Thank you so much for this post. Reverse-racism and reverse-hate crimes is a cost that is often overlooked when advocating for or against the original legislation. Since it affects the margins of our community most often and most severely, the people deciding that the cost is okay to bear are not usually the ones who have to pay the price.
    The way I approach hate crimes legislation is that I believe I have a right to say and think anything I want, under the First Amendment (barring obvious caveats). In order for me to have this right, I must recognize that others I completely disagree with also have the right to say and think what they want. No matter how vile those thoughts may be. Actions are what matters, and violent actions are already covered in the law.
    An argument for hate crimes legislation is often the ‘slap on the wrist’ offenders get for violence on a protected class. That’s not going to stop with more legislation. If the cop or the DA wanted to hit the offender with more time, they could already. Charging decisions and plea deals will happen regardless of the existence of hate crimes legislation. Mandatory sentencing is possible, but Jos’s article gives perfect examples of why that’s not an option.

  16. kathryn
    Posted July 22, 2009 at 7:32 pm | Permalink

    but there is a substantial difference between those crimes. (killing for a wallet and killing as a hate crime)
    True, but is it a distinction without a difference? The penalty in both cases is either life or death.
    For example, Matthew Sheppard’s killers were charged with first degree murder which in that state meant they were subject to the death penalty. Fortunately, they were sentenced to spend the rest of their lives in prison, so no one was further victimized by the violent taking of another life. What would hate crimes legislation do in that case? You can’t kill them twice. You can’t make them serve two life sentences.

  17. Ruby
    Posted July 22, 2009 at 9:38 pm | Permalink

    I disagree.
    I believe that hate crimes legislation is particularly important to members of the LGBT community. One reason that I’ve cited before for this is the fact that the “gay panic defense” is still used and still accepted by many. Someone can DEFEND themselves by confessing that their crime was motivated by the victim’s sexuality or gender identity, and hate crimes legislation offers a very good way to discredit this kind of defense.

  18. cattrack2
    Posted July 22, 2009 at 10:54 pm | Permalink

    Hate crime laws are not about protecting an individual, its about protecting a group. Hate crime is simply terrorism by a different name & it deserves a stiffer setence. Also regarding this “distinction without a difference”, not all states have the death penalty, nor are all hate crimes capital offenses. So the distinction matters. You can’t tell me that burning a cross in someone’s yard should be prosecuted as simple arson.
    Honestly, I think hate crime laws overall serve & reinforce the other type of community justice programs Jos proposes. Not only do hate crime laws signal society’s disapproval, but it can actually change opinions. Thirty years ago it was ok to drink & drive. It was ok to drive without a seat belt. It was ok to throw litter out your car. Tough laws on each of these not only reduced the behavior by penalizing it, but it reduced the behavior by signaling that it was unacceptable in the first place. That’s why reactionaries are fighting the inclusion of LGBT status into hate crimes laws–they don’t LGBT people to seem worthy of protection.

  19. Borea
    Posted July 23, 2009 at 12:53 am | Permalink

    A few points and questions I want to make:
    -Ruby makes a VERY good point. LGBT Hate-crimes legislation does deflate the power of the “gay panic” defense considerably.
    -Do we have solid number that show hate-crimes legislation reduces ACTUAL anti-LGBT crime? (Not reported, not predicted… REAL crime rates?) If not, it would give credence to the OP’s argument.
    -Finally, doesn’t hate-crimes legislation allow the FBI/federal courts to investigate/try a hate-crime IF the local authorities are they themselves bigots and refuse to lift a finger? I thought this was one benefit of hate-crimes legislation.
    Thanks in advance to anyone who can provide answers.

  20. SarahS
    Posted July 23, 2009 at 1:27 am | Permalink

    In all the arguments for and against hate crime laws I haven’t seen any that cover the problems with local enforcement. I’ve just clicked through the links in this post, and I still don’t see it.
    The reason that I support hate crimes legislation is because it allows federal agents to come into a local area where racist homo/bi/transphobic cops refuse to investigate and force them to investigate. Yes, there are problems with the prision-industrial complex, problems with punishment instead of rehabs, problems with cops continuing to oppress minority communities. But I keep coming back to my upbringing in a conservative area and my feeling that cops where I grew up wouldn’t investigate complaints from queers unless forced.
    I’m also a bit unnerved by the opposition to hate crimes because it really isn’t about the LGBT community and hate crimes — it is a criticism of the prision-industrial complex that is put on the backs of the LGBT community. Yes, LGBT Americans are opting into a flawed system but racial communities aren’t being asked to give up their hate crimes status. Religious groups aren’t being asked to give up hate crimes status. No one who HAS anything is asked to give it up.
    The LGBT community is being asked yet again to set our priorities aside — just like we were asked not to derail elections by asking for equal marriage and asked to pipe down when we asked to end military discharges because of what happened to Clinton. As a bisexual American it is hard to constantly be told by the progressive community to shut up and go away. We are constantly told that “now isn’t the time” or “everyone else gets this but really it isn’t a good idea so how about you just move along” – if its marriage or AIDS or DOMA or queers of color. It seems like we are constantly the ones being asked to go without and it is exhausting and sad.

  21. femme.
    Posted July 23, 2009 at 3:34 am | Permalink

    First of all, fabulous article Jos. Your posts are so well-researched and thought-provoking. I have had my concerns about hate crimes legislation for the exact same reasons you explored in your article, but I still support hate crimes legislation. Why? SarahS’s comment pretty much sums up how I feel.
    I’m also a bit unnerved by the opposition to hate crimes because it really isn’t about the LGBT community and hate crimes — it is a criticism of the prision-industrial complex that is put on the backs of the LGBT community. Yes, LGBT Americans are opting into a flawed system but racial communities aren’t being asked to give up their hate crimes status. Religious groups aren’t being asked to give up hate crimes status. No one who HAS anything is asked to give it up.
    Very, very good point. In some ways, I think that hate crimes legislation is a vital first step in the process of drastically reducing the pervasive violence/harrassment/intimidation GLBTQ individuals face every day. Hate crimes legislation isn’t only about sentence enhancement either. Like SarahS, I would prefer federal agents to local cops in that kind of situation.
    I think the community-based approaches you discussed are important and necessary, but hate crimes legislation is the first realistic step. It may be flawed, but most legislation is.
    As a bisexual American it is hard to constantly be told by the progressive community to shut up and go away.
    “Wait your turn” or “Shut up and go away” are the most hurtful dismissals. I know Jos didn’t intend to imply this, and I still really enjoyed the article. I am just emotionally responding to this statement, because it does feel like that most of the time (I am a queer-identified bisexual). The absence of federal hate crimes legislation for LGBTQ individuals implies (to me) that I am second-class, that I am disposable, that my community isn’t worth protecting. That hurts.

  22. Citizen Lane
    Posted July 23, 2009 at 8:30 am | Permalink

    The law isn’t in their hands. It’s in the hands of prosecutors.

  23. Loulouloulou
    Posted July 23, 2009 at 11:09 am | Permalink

    I don’t think that the South African TRC is a good example at all. The majority of victims who testified at the Commission’s hearings expressed dissatisfaction a few years later; blanket amnesty was a feature of the TRC, and this served to distinguish between punishable and unpunishable crimes. In effect, hate crimes were categorised as so different to regular crimes as to justify an entirely different legal regime. I don’t believe that this is a positive step.
    If hate crimes legislation is to work, it should be implemented in order to bring our responses to those crimes up to the same level as others — not further entrench an us and them paradigm.

  24. Givesgoodemail
    Posted July 23, 2009 at 12:10 pm | Permalink

    Hate crime (and hate talk) legislation has done great harm to civil liberties in Canada. My fiance and her children converted to Judaism 20 years ago, and until her recent move to the U.S. she and her family were subject to frequent verbal abuse from local Muslims who would frequently march down the street spewing anti-semitic epithets and throwing rocks through the windows of homes owned by Jews.
    When she took pictures of this and tried to get the local newspaper to run them, the paper told them that national laws prevented them from “libeling” religious and ethnic minorities.
    Go figure.

  25. Borea
    Posted July 23, 2009 at 2:03 pm | Permalink

    This strikes me as pretty damn serious, if this is even a very rare occurrence. Can you provide us with more information on your experience, and perhaps on similar experiences of others?

  26. Ariel
    Posted July 23, 2009 at 4:08 pm | Permalink

    But we should still continue wondering whether the backlash from hate crime legislation (that is, it being used against minority groups) is analogous to the backlash by the right from affirmative action– something that even progressives are losing sight of.

  27. Dykonoclast
    Posted July 23, 2009 at 5:21 pm | Permalink

    Jos, I love you. Stick around?

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