Matthew Shepard and hate crimes

I've been a little slow responding to the recent revisionism by ABC News' 20/20 regarding the murder of Matthew Shepard -- so far, Eric Muller, Atrios, and David Ehrenstein have all weighed in admirably.

Certainly there is serious reason to call into question ABC News' ethics. As John Wierick points out, its participation in this project was a violation of the agreement between Aaron McKinney (one of the two men who killed Shepard, and whose interviews form the basis for this report) and the Shepard family, who agreed not to pursue the death penalty.

And, as Muller has pointed out, there was nothing new uncovered in this report. It was already well established that McKinney and Russell Henderson were amped by drugs and looking for someone to rob.

Indeed, the entire thrust of ABC's "revelations" -- that it was all a drug binge, not a hate crime -- reveals how little the reporters who worked on this understand not just bias crimes but criminal law generally. One factor, such as drug use, does not cancel out another, such as a bias motive. They often in fact appear together and work in conjunction.

There's an even more significant problem with the 20/20 report, however: It is signficantly factually flawed.

The flaw is not so much in what it reports, but what it intentionally omits.

Consider, for instance, the ABC account of how Shepard's murder came to be considered a hate crime:

Just hours after Shepard's battered body was discovered, and before anyone knew who had beaten him, Shepard's friends Walt Boulden and Alex Trout began spreading the word that Shepard was openly gay and that they were concerned the attack may have been a gay-bashing.

Boulden told "20/20" in an interview shortly after the attack in 1998, "I know in the core of my heart it happened because he revealed he was gay. And it's chilling. They targeted him because he was gay."

Prosecutor Rerucha recalls that Shepard's friends also contacted his office. Rerucha told "20/20," "They were calling the County Attorney's office, they were calling the media and indicating Matthew Shepard is gay and we don't want the fact that he is gay to go unnoticed."

Helping fuel the gay hate crime theory were statements made to police and the media by Kristen Price, McKinney's girlfriend. (Price was charged with felony accessory after-the-fact to first-degree murder. She later pleaded guilty to a reduced charge of misdemeanor interference with police officers.)

Price now says that at the time of the crime she thought things would go easier for McKinney if his violence were seen as a panic reaction to an unwanted gay sexual advance.

But today, Price tells Vargas the initial statements she made were not true and tells Vargas that McKinney's motive was money and drugs. "I don't think it was a hate crime at all. I never did," she said.

Former Laramie Police Detective Ben Fritzen, one of the lead investigators in the case, also believed robbery was the primary motive. "Matthew Shepard's sexual preference or sexual orientation certainly wasn't the motive in the homicide," he said.

"If it wasn't Shepard, they would have found another easy target. What it came down to really is drugs and money and two punks that were out looking for it," Fritzen said.

As I've mentioned, this account is absurd on its face. All bias crimes in fact are acts (including, say, robbery) which are already crimes and which are committed with a bias motive.

But more importantly, it omits other central pieces of evidence which established clearly that it was no mere "theory" that McKinney had committed a gay hate crime.

I discussed the Shepard case in Chapter 9 of Death on the Fourth of July. Here are the facts I laid out there:

Shepard, a twenty-two-year-old student at the University of Wyoming, was openly gay, and was somewhat flamboyant about it, at least by Laramie standards. Hanging out in a local bar the night of October 6, he managed at least to attract the attention of two local rednecks, Aaron McKinney and Russell Henderson, who were looking for someone to rob, and picked Shepard because he was gay. They told Shepard they too were gay and offered to give him a ride home in their pickup truck, and Shepard accepted.

McKinney later gave multiple, conflicting accounts of what happened that night. He told a police detective that Shepard had not made any advances toward him at the bar, but that Shepard put his hand on McKinney's leg inside the pickup, at which point McKinney told him: "Guess what? We're not gay. You're gonna get jacked." From prison, he wrote to a friend that he started beating Shepard in the car because of an even more naked advance:

"When we got out to where he was living, I got ready to draw down on his ass, and all of the sudden he said he was gay and wanted a piece of me. While he was 'comming out of the closet' he grabbed my nuts and licked my ear!! Being a verry drunk homofobic [sic] I flipped out and began to pistol whip the fag with my gun, ready at hand."

Later, at trial, McKinney attempted to claim that Shepard had in fact made an advance on him at the bar, whispering a sexual proposition into his ear and then licking his lips suggestively. The humiliation he felt at the advance, he claimed, spurred a violent rage that made him want to beat Shepard. (The judge, however, struck down this testimony.)

Whatever the sequence of events and motivations, the three men wound up southeast of town in a remote area near the Sherman Hills subdivision. McKinney and Henderson robbed Shepard and tied him up with rope. As Shepard begged for his life, McKinney proceeded to beat him severely, ultimately pulling out a gun and pistol-whipping him over the head. They left him to die, in the freezing night air, leaned up against a wooden rail fence.

It was in that pose that two mountain bikers found him, some twelve hours later, at first thinking he was a "scarecrow" someone had propped up on the fence. (Their original description created a popular image of Shepard strung up on the fence like a crucified martyr, though in fact his arms were tied behind him and he was seated on the ground.) Though he probably should have either bled to death or succumbed to hypothermia, he was barely alive. He lingered for another five days at the Laramie hospital before he finally died of his injuries.

As you can see, the 20/20 report substantially omits evidence that was produced at the time establishing McKinney's bias motivation. And indeed, McKinney not only did not deny the existence of this bias, he positively embraced it at trial by attempting a "gay panic" defense.

Incidentally, Fritzen was not the lead investigator in the case. That honor went to a fellow named Rob DeBree. And DeBree has significantly repudiated the "crystal meth" theory.

Here's what he told Beth Loffreda, author of Losing Matt Shepard: Life and Politics in the Aftermath of an Anti-Gay Murder, regarding the attempt by McKinney's defense team to paint him as being under the influence of crystal meth:

Rob DeBree too was unimpressed by the argument -- he told me quite forcefully that the murder didn't look like any meth crime he knew.

In his confession to DeBree, McKinney had denied using meth the day of the murder, and while McKinney had been arrested too late for the police to confirm this through blood testing, DeBree felt certain that for once he had told the truth. Obviously it's unsurprising that the lead investigator would disagree with the defense, but DeBree had some compelling reasons on his side. "There's no way" it was a meth crime, DeBree argued, still passionate about the issue when I met him nearly six months after the trial had ended. No evidence of recent drug use was "found in the search of their residences. There was no evidence in the truck. From everything we were able to investigate, the last time they would have done meth would have been up to two to three weeks previous to that night. What the defense attempted to do was a bluff." ...

There are other serious problems with the report. It omits the fact that McKinney has now changed his story at least three times, and probably more, raising serious doubts about his credibility anyway. It also omits the fact that other detectives in the case testified at trial that the victim was selected for violence, and was beaten especially severely, because he was gay. Their testimony was based on their actual conversations with McKinney and Henderson.

And the piece's later attempts to defend McKinney by tainting Shepard's reputation (claiming he also was a crystal-meth user) should be beneath even the lowliest cops-and-courts reporter, let alone a national news organization. Even if true, whatever Shepard's habits, he did not deserve to die for them.

This story has a distinct Foxcist stench -- which means that it is not interested in the truth, it's propaganda for an agenda. An agenda which is, of course, left unstated during the program, but is implicit in the pattern of omitted evidence and facts.

For the explicit version, JoAnn Wypijewski laid it all out for us in an L.A. Times op-ed:

So was Shepard's murder a hate crime or was it something else? "20/20" comes down on the side of something else, amplifying the meth connection, which I first reported in Harper's in 1999, and exploring Laramie's drug subculture, through which Shepard seems to have become acquainted with McKinney. Some gay advocates of hate crime laws have already blasted the network for raising the question. Michael Adams of Lambda Legal Defense says ABC is trying to "de-gay the murder."

Scrapping over the nature of Shepard's victimhood is the wrong debate. Whatever his killer's degree of homophobia, Shepard is dead. Powerless to restore him, society is obligated to ask what is owed to the living -- to gay people, who have suffered ages of abuse, and also criminal defendants. Tinkering with criminal law is a backward step in countering the deep cultural realities of homophobia, racism, sexism. Prosecuting murder as a hate crime only lets the rest of us think we're off the hook, while it tramples on justice.

You see, the problem isn't people who like to seek out gays for special violence and then visit it upon them. It's the laws that are intended to punish these people -- that's the problem.

Right.

Hate-crime laws, as I explain in my text, are indeed relatively new insofar as they are now on the books. But attempts to pass laws like them date back to the anti-lynching laws of the 1920s and '30s.

And the reality is that they represent the kind of law that should have been on the books long ago, because they play a substantial role in protecting individual freedoms for all Americans. This isn't tinkering: It's righting an omission.

Keep in mind that hate crimes historically represent an unofficial attempt at oppressing minorities -- in the case of lynching, it in fact was a cornerstone of the Jim Crow system of racial oppression. They are clearly special "message" crimes whose primary intent is to deprive whole groups of Americans of their right to partake of democracy, and they clearly create substantially more harm across all sectors of society than ordinary crimes. As such, they deserve harsher punishment.

Underlying Wypijewski's argument is one of the persistent myths about hate crimes, namely, that the laws on the books now should be adequate to punish them. I address this in Chapter 11:

This myth arises from one of the realities about hate-crime laws: they only exist on the books as laws dealing with a special category of crimes with which we already are well familiar (murder, assault, threatening, intimidation, vandalism, etc.) -- that is, a hate crime always has a well-established "parallel" crime underlying it, upon which is added the layer of motivation by bias (racial, ethnic, etc.). Thus, opponents argue, the laws for those parallel crimes should be adequate for punishing perpetrators. (If this argument sounds familiar, it is; the identical points were raised in the 1920s and '30s by opponents of the anti-lynching legislation that was the NAACP's raison d'etre during its early years.)

Are hate crimes truly different from their parallel crimes? Quantifiably and qualitatively, the answer is yes.

The first and most clear aspect of this difference lies in the breadth of the crimes' effects. Hate crimes attack not only the immediate victim, but the target community -- Jews, blacks, gays—to which the victim belongs. Their purpose today, just as it was in the lynching era, is to terrorize and politically oppress the target community. Hate-crime laws resemble anti-terrorism laws in this respect as well—adding, in effect, punishment because more than just the immediate victim is targeted and affected, and thus greater harm is inflicted.

But this is only one aspect of the greater harm inflicted by hate crimes than their parallel crimes. There are several more, and they are substantial.

-- The violence quotient. Hate crimes are much likelier to be violent than other crimes, on two levels. First, bias crimes involve physical assaults at a significantly higher rate. A study based in Boston found that out of all hate crimes reported to police, fully half of them were assaults—well above the average of 7 percent of all crimes generally. Second, serious physical harm is far more likely to be inflicted on hate-crime victims; the same study found that while physical injury occurred in only about 30 percent of all assault cases nationally, they were present in almost three-quarters of bias-crime cases.

The personal trauma levels. There is also a singularly greater level of harm from bias crimes' impact on the emotional and psychological well-being of the victim. As Frederick Lawrence observes in his Punishing Hate: Bias Crimes and American Law:

The victim of a bias crime is not attacked for a random reason—as the person injured during a shooting spree in a public place—nor is he attacked for an impersonal reason, as is the victim of a mugging for money. He is attacked for a specific, personal reason: his race [or religion, or sexual preference]. Moreover, the bias crime victim cannot reasonably minimize the risk of future attacks because he is unable to change the characteristics that made him a victim.

A bias crime thus attacks the victim not only physically but at the very core of his identity. It is an attack from which there is no escape. It is one thing to avoid the park at night because it is not safe. It is quite another to avoid certain neighborhoods because of one's race. This heightened sense of vulnerability caused by bias crimes is beyond that normally found in crime victims. Bias-crime victims have been compared to rape victims in that the physical harm associated with the crime, however great, is less significant than the powerful accompanying sense of violation. The victims of bias crimes thus tend to experience psychological symptoms such as depression or withdrawal, as well as anxiety, feelings of helplessness, and a profound sense of isolation.

-- Harm to the community: All crimes, of course, harm the broader community in which they occur. They create fear and uncertainty about citizens' personal security, and add to a climate of civil distrust. However, bias crimes create, in addition to these harms, a further level of injury to a community in a democratic society: They violate the underlying egalitarian principles of equality for all citizens, and they profoundly disturb whatever harmony may exist in a modern, heterogeneous society. Hate crimes may not be as profound an offense in a non-democratic society, but they represent a gross violation of basic American legal and cultural institutions.

This harm is especially evident in small rural towns -- such as Ocean Shores, or Jasper, or Laramie, or Hayden Lake -- which are often dependent to some extent on tourist dollars, and whose names can be permanently blackened by a hate crime committed in the back yards. Not only can the economic effect be widespread, the community itself must grapple for years with questions about its basic integrity; the cloud may lighten, but it never completely goes away. Small towns are especially vulnerable because they rarely have a law-enforcement department capable of adequately handling such crimes, which can create conditions in which a series of incidents can escalate into full-blown violence, as they did in Ocean Shores.

Wypijewski also makes a significant error in suggesting that, under proposed federal laws, Shepard's murder would have been prosecuted as a hate crime. Again, she betrays a gross misunderstanding of the phenomenon.

The reality is that bias-crime statutes (which are usually sentence-enhancement laws) are typically not very helpful when it comes to murder cases, especially those involving horrific killings like Shepard's or James Byrd's in Texas. The perpetrators are likely to face the death penalty in an any event -- and how can you enhance that sentence? At best, a prosecutor may be able to push his case to a death-penalty threshold because of hate-crime circumstances surrounding a given case.

But only about 2-3 percent of all hate crimes involve murder. The vast majority of them involve assaults and lesser violent crimes, property crimes, threats and intimidation. And within that spectrum, there is clearly not only room for, but a need for, sentence enhancement.

In this respect, Matthew Shepard was a poor representative of the typical hate-crime victim. Most victims of violent gay bashing survive -- but they are rarely left unscarred, both without and within. And Aaron McKinney and Russell Henderson were punished about as harshly as they would have been had there been a law on Wyoming's books or in the federal statutes. Of course, they can thank the Shepard family -- upon whom Aaron McKinney and ABC News have just spat -- for that.

Indeed, the prominence of Shepard's case was more a matter of timing, appearing at a time when cases like his were coming before the national consciousness. As I explain in Death on the Fourth of July:

Certainly, there had been any number of anti-gay hate crimes committed over the preceding year that warranted the public's attention. The previous January in Springfield, Illinois, three men had kidnapped, robbed and assaulted a visiting man from Washington, D.C., because they believed (incorrectly) that he was gay. In Honolulu that August, a group of teenagers beat a heterosexual man to death at a public shower because they thought he was gay. In September in Fresno, California, a transgender woman named Chanel Chandler was stabbed to death with a broken beer bottle, and her apartment set on fire in an attempt to hide the body; two young men whose fingerprints showed up were questioned by police, but the prosecutor dropped charges when the pair refused to waive their right to a speedy trial and his evidence, including DNA work, had not arrived in time. Charges were never re-filed.

For that matter, a steady drumbeat of news about vicious crimes directed against gays and lesbians had been getting increasing play in the nation's headlines for the previous decade. The sport of "gay bashing," in which groups of young men from rural or suburban areas would invade urban gay districts and commit brutal assaults, often with baseball bats, became something of a legend during the early 1990s; though the incidents were real enough, many of them went unreported because of gay men's reluctance to report the beatings to police.

By 1998, even though only twenty-one states had hate-crimes laws against gays, lesbians, or bisexuals even on the books (Wyoming was one of seven states with no hate-crimes law at all), such crimes made up 11.6 percent of all hate crimes reported to the FBI, the third-highest such category. Since twenty-nine states were out of the picture, and many of the crimes went unreported anyway, the numbers could at best only hint at the levels of gay-bashing that were happening in reality. Indeed, one study, conducted in 1991, estimated that better than 50 percent of all gays and lesbians in America had been subjected to physical attacks motivated by their homosexuality. As early as 1987, a Department of Justice report had observed that "homosexuals are probably the most frequent victims of hate crimes." The same report noted: "Many victims of bias crimes do not report incidents because they distrust the police, feel that the incident is too minor or that the police cannot do anything about it, have a language barrier, fear retaliation by the offender or—in the case of gays and lesbians—fear public exposure."

What really stood out about these crimes was their viciousness. These weren't merely assaults: they entailed torture, mutilation, castration, sexual assault, and extremely severe beatings, and they were very likely to end in death. Gay-related homicides are notable for the "overkill" that pervades the attacks; a 1995 study found that in more than 60 percent of the homicides, there was evidence of "rage/hate-fueled extraordinary violence" that included "dismemberment, bodily and genital mutilation, use of multiple weapons, repeated blows from a blunt object, or numerous stab wounds."

In this respect, Matt Shepard was an ideal symbol of the phenomenon of gay-bashing hate crimes. The viciousness of the attack against him was fueled not merely by crystal methamphetamine but by homophobic rage. ABC News' reporters seemed to believe the two factors were mutually exclusive, rather than complementary.

That omission appears to be quite intentional. The underlying agenda appears to be to undermine public support for hate-crime laws.

Why? After all, Tom DeLay and Denny Hastert killed a Senate-approved federal hate-crime law recently, and paid no political price for it whatsoever. With an even more conservative Senate running the show, there is now almost zero prospect of a federal hate-crime law passing anytime soon.

One has to wonder if a larger rollback is in the works. So much for "compassionate" conservatism.