Saturday, September 29, 2007

Bias crimes: At the heart of the divide

-- by Dave

The Jena 6 marches and their aftermath took a lot of people by surprise, and not just liberal bloggers (myself included). I think the folks most taken aback were the wingnutosphere and their audience, i.e., comfortably smug white conservatives, the kind who think The Bell Curve "made sense" -- embodied by John Gibson and Bill O'Reilly -- who were all, "Wha? Huh? What racism? I thought racism didn't really exist anymore!"

Somewhat serendipitously, the marches took place just before the Senate made its historic vote passing a federal hate-crimes law that appears doomed to a George W. Bush veto -- typically, on the flimsiest of rationales. No one in the media or among the pundit class seemed to notice (indeed, the hate-crimes vote barely appeared on the radar), but there actually was a profound connection between the two events.

Most of the debate over this bill has focused so far on its addition of a bias against gays and lesbians to the categories of hate-crime motives. This is what has gotten the religious right into an uproar, claiming -- quite illogically and falsely, as Rick Perlstein has explained in some detail (as have I -- that somehow laws against bias crimes somehow create "thought crimes."

What's been obscured in this uproar is the reality of what the bill would actually accomplish -- namely, federalizing a broad range of bias crimes involving violence against not merely gays and lesbians but blacks, Jews, Muslims, even whites and Christians.

Mind you, the legislation is carefully written to emphasize helping local law enforcement do its job -- provide training, help identify bias crimes, provide funds for strapped prosecutors -- and it specifically defers to local jurisdictions. At the same time it makes it possible for federal authorities to move in when local law enforcement fails to do so, particularly in any of the seven states that have no bias-crime law.

What that means is that if the act were somehow to survive Bush's veto, travesties like the all-too-archetypical handling of the murder of Sasezly Richardson in Indiana a few years back -- Indiana has no hate-crimes law, and so his killers were not charged with that -- would not be as likely to occur. (The same is true in Wyoming, where Matthew Shepard, for whom the law is named, was murdered.) Prosecutors and cops would cease being quite so likely to dismiss crime scenes as potential bias crimes, and treat obvious hate crimes as just "boys being boys."

This is what was happening in Jena, where the prosecutor gave the following excuse for treating white kids involved in the escalating racial tensions differently than blacks:
District Attorney Reed Walters, who is prosecuting the case, said Wednesday that race had nothing to do with the charges.

He said he didn’t charge the white students accused of hanging the nooses because he could find no Louisiana law under which they could be charged. In the beating case, he said, four of the defendants were of adult age under Louisiana law and the only juvenile charged as an adult, Mychal Bell, had a prior criminal record.

“It is not and never has been about race,” Walters said. “It is about finding justice for an innocent victim and holding people accountable for their actions.”

Of course, as Steven D at Booman notes, this is a prosecutor who believes Jena was narrowly spared a horrific rampage by violent black thugs only by the grace of Jesus' hand. Sounds like he and Bill O'Reilly would have a great time together at a black restaurant.

But even presuming the best of intentions on the part of this prosecutor, there's really no escaping the fact, as Jeralyn at TalkLeft has detailed, that he absurdly overcharged the young black men involved in the beating that resulted in their arrest at the center of the controversy. Perhaps even more importantly, he turned a real blind eye to the criminal misbehavior of the town's young white men that played a real role in the escalating racial tension in Jena. As I already noted:
Actually, of course, the young white men who hung the noose could be charged with a number of crimes under Lousiana statute, particularly criminal intimidation and threatening with a bias motive, i.e., a hate crime. But like a lot of white prosecutors, it's easier to see such behavior as "boys will be boys" when the perps are white than when they're black.

Even giving Reed Walters the most generous benefit of the doubt, it's clear that both he and the law officers at the scene of the nooses slung over the "white tree," as well as subsequent confrontations (including one in which a young white man brandished a gun and had it wrested away from him by some of the black men he was pointing it at -- resulting in the arrest of the black men for "theft" of the gun), failed to identify or investigate these incidents as potential hate crimes.

But then, they're hardly singular in that regard. Indeed, the under-investigation and under-reportage of bias crimes is a widespread national problem. I published a piece earlier this week at Crosscut examining the extent to which Seattle police may be mishandling bias crimes when they encounter them, and as I explained then:
Crimes go unreported and uninvestigated all the time, of course, but when it happens with bias crimes, the result is especially poisonous for the larger community. Bias crimes are understood by experts to cause greater harm than ordinary crimes on three levels: the immediate victim, who typically sustains extraordinary psychological harm in addition to the extreme levels of violence that often occur in such cases; the minority community that is the larger target of the crimes, the underlying intent being to terrorize and drive them out; and the larger community, which then must wrestle with a blackened reputation and the internal animus and ethnic distrust created by the crimes.

So when police fail to respond adequately, the victim feels isolated, the target community believes it is not getting justice and can't trust authorities to provide it, and the larger community finds whatever bridges exist between ethnic communities are crumbling under the weight.

As the piece explains, even a progressive city like Seattle whose police officials publicly endorse the serious pursuit of bias crimes can have problems handling them appropriately:
The underreportage of bias crimes is a widespread national problem. Some of the experts who've studied the issue say that while FBI statistics report about 8,000 bias crimes annually, the actual number might be closer to 50,000 a year. The problem is most severe in rural areas, where bias-crime prosecutions are a genuine rarity, but even in urban areas like Seattle bias crimes go unreported and uninvestigated fairly routinely.

A 2000 Department of Justice study looked at the underreporting of bias crimes and identified some of the causes:

-- Fear of negative publicity, especially the kind that can damage a community's reputation, often motivates officers and prosecutors to quietly treat obvious hate crimes as their lesser "ordinary" counterparts.

-- Confusion about the definition of hate crimes and which acts need reporting, particularly arising from the many differences among various state laws and the murky federal statutes.

-- Miscommunication between local and state reporting agencies, with the latter often reporting a bias crime simply as its parallel crime.

-- "False zeroes," or the reporting of zero crimes within a jurisdiction that in fact failed to report at all, which further skews the data regarding the actual rate at which hate crimes occur.

-- The natural reluctance of victims (especially gays and lesbians who may fear being "outed," or immigrants who might fear deportation) to report hate crimes or pursue charges, and the common failure of law-enforcement officials to either recognize or deal appropriately with this reluctance.

-- A significant lack of training in identifying and investigating hate crimes, as well as in handling victims of the crimes. The smaller the department, the less likely it is to offer such training, which generally translates into severe undertraining in rural areas.

-- A hostility to, or ignorance about, the concept of hate-crime laws, and a general over-eagerness to dismiss the bias aspects of crimes as a mostly "political" determination.

This last factor is especially potent among beat officers whose choices at the scene of a crime can determine what evidence is gathered and what direction an investigation takes. There is a certain level of resistance to bias-crime laws among law-enforcement officers, largely fed by a lack of understanding and training. Because bias-crime laws are often portrayed — falsely, and usually by opponents — in the media as creating "special rights" and "protected categories," many police officers tend to see them as unnecessary genuflecting to the gods of political correctness and are reluctant to pursue evidence of them.

Prosecutors are vulnerable to similar biases and misconceptions as well. And in rural and suburban places -- places like Jena -- the problem is exponentially worse.

I examined this problem in some detail in my second book, Death on the Fourth of July: The Story of a Killing, a Trial, and Hate Crimes in America:
Perhaps the most significant feature of the DOJ's study's findings, from a larger cultural perspective, was that there was a close correlation between reporting of hate crimes and the level of training provided (some 75 percent of agencies that reported hate crimes also offered training, while less than 60 percent of the non-reporting and zero-reporting agencies offered any)—and simultaneously, found a correlation between hate-crime training and the size of the agency. The smaller the department, the less likely it is to provide such training—and likewise, less likely to report hate crimes.

Obscured by the numbers are their real-world ramifications for the American cultural landscape: the smaller the town, the smaller the department. This means in turn that, geographically speaking, the problem of hate crimes going not only underreported but uninvestigated and unprosecuted is most widespread in rural America. This coincides with the prevalence of anecdotes of unpursued bias crimes emanating from rural precincts. This in turn, makes the problem even more acute, since these same small towns may be the communities most vulnerable to suffering severe damage at the hands of hate-crime perpetrators.

Most significantly, this phenomenon in fact reflects the perceptions many minorities have of small, rural towns: that they are not safe for people of color or for gays. That if trouble were to erupt, there would be no one to help them, and law enforcement officers would be unsympathetic. That if someone were to commit a hate crime against them, there is a not unreasonable likelihood the perpetrator would get away with it.

The fear and suspicion with which rural denizens regard cities and their dwellers is a well-established American archetype. What is often less observed, but is equally true, is the sheer dread that rural America raises in the minds of those minorities whose populations are largely centered in urban areas. When they leave their familiar surroundings for the so-called heartland -- where some 83 percent of the population nationally is white -- it is often with real fear about what might befall them.

It is a mistrust bred partly of myth and partly of reality. Its consequences, whatever its cause, are profound on a broad scale, because its chief effect is to widen the already formidable cultural gap between white America and the rest of us.

I go on to describe an African American woman who is a Seattle Times columnist -- a brave and thoughtful person -- and her 2000 column detailing the abject fear she felt upon approaching the Idaho border. As I explain:
Perhaps of equal significance are the real-world ramifications of this fear for both minorities and the places they fear to visit: an impoverishment of the nation's democratic underpinnings. As expert Donald Green points out, hate crimes succeed in making the nation indeed a smaller place for people like Lynne Varner.

"I think if you had to kind of step back and ask, 'Does hate crime pay?,' you'd say yes," Green says. "If the point of hate crimes is to terrorize the population into maintaining boundaries between these perpetrators and the victimized populations, at least in some areas—certain parts of town, certain parts of the country, et cetera—you know, certain kinds of romantic relationships, whatever—then it does succeed in that. Because people really do feel that they have to constrain their behavior lest they open themselves up for attack. You know, gay men don't often hold hands in public. Black and white couples don't form spontaneously to the extent that you might expect based on their daily interactions.

"There are a lot of instances like that—and you know, we all probably have interactions with people who, when they're invited to a certain part of town, say, 'Oh, I better not go there.' From my standpoint, you tend not to attract much notice from policymakers, but I think of that as a massive dead-weight loss of freedom.

"Even if you say, 'Ah, well, they would have spent their money in this restaurant, maybe they'll spend their money in some other restaurant,' and so it's a wash, just the fact that people feel less than free in a free country is a tragedy."

Green also argues that even seemingly insignificant incidents—the kind police are prone to ignore or de-emphasize—can contribute to the cumulative effect. "If you see a swastika on an overpass, you say, 'Well, you know, it's just a bunch of kids blowing off steam, it doesn't really mean anything,' but when you start to think about the kind of cumulative effects that that would have on a variety of people, both perpetrators and victims, then the result is considerable.

"And that's why I think that, while there's a segment of the law-enforcement community -- and even people like me in an unguarded moment -- that will say that in some respects the hate crimes laws have been a flop, the laws in fact have a substantial basis in theory. And that theory is that if you could somehow put a value on that dead-weight loss in freedom, it actually would be a significant sum. And therefore it does pay society to deter this kind of activity."

Bias-crime laws are a way for society to make clear its condemnation of such acts, recognizing them as more heinous than simple crimes because they cause greater harm. Indeed, pretending as opponents do that a cross burned on the lawn is the same as being egged and toilet-papered, or that a gay-bashing rampage by young thugs is the same thing as a bar fight, simply tries to pretend away the truly hateful and terroristic element of the former of these, as though it doesn't exist. But it does exist, and its effects poison our society and make a joke out of our self-belief in ourselves as an "equal opportunity" society.

This, in the end, is the single clearest reason why progressives should avidly support a federal hate-crimes law: These are crimes whose primary purpose is to disenfranchise, to expel, to deny the most basic rights of association and opportunity to millions of Americans of all stripes. Civil libertarians need to come to grips with the fact that these crimes are real, their effects are real, and they represent, as Donald Green argues, a real "massive dead-weight loss of freedom" for those millions of Americans.

Americans lose their freedoms not just through government oppression; an honest appraisal of our history forces us to recognize that there is a substantial track record of Americans losing their freedoms (up to and including their lives) through the actions of their fellow citizens: the genocide of Native Americans; the long reign of terror of the "lynching era" and associated "sundown towns" that infected the entire nation; the expulsion and incarceration of Asian Americans; the long-running campaign of vicious hatred directed against gays and lesbians.

Hate crimes are an integral part of that history, and laws intended to punish their perpetrators with stiffer sentences are an important blow for the cause of very real and substantial freedoms for millions of Americans. Trying to argue that, in some esoteric sense, they constitute "thought crimes" that somehow deprive us of our freedoms (to what? commit crimes?) turns this reality on its head.

Yet progressives haven't yet figured out that framing hate-crime laws as a defense of people's civil liberties is precisely the argument that will instantly deflate the long-running "thought crime" argument. In all the debate over the legislation, I haven't seen the point raised once.

As long as small-town -- and even big-city -- law-enforcement officers labor under misconceptions about bias-crime laws and fail to properly identify, investigate, or prosecute them, places like Jena are going to fester. And this is where the Matthew Shepard Local Law Enforcement Hate Crimes Prevention Act comes in -- because its primary mission is to help local law cops and prosecutors do their job well -- by providing logistical and investigative support, grants, training, and other kinds of assistance.

It's important to fight for this law because it's a fundamental way of dealing with the racial divide in places like Jena -- and indeed, for the greater share of the American landscape. If the training available to small-town cops and prosecutors weren't enough to have helped them identify the bias crimes mounting in their midst, then at least the victims would have then had the option of seeking help from federal authorities, who could determine whether the case was properly handled by local authorities.

Without this kind of action, ethnic and other minorities are never going to trust that they will have access to equal justice in America. The already know, all too well, that racism and its ugly wounds continue to fester here, contrary to the comforting self-delusions of the O'Reillys and Gibsons of the world. Confronting bias crimes as the profoundly antidemocratic and unAmerican act they are is really only a decent first step in healing those wounds.

Hate-crime laws, as Death on the Fourth of July explains, 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.

They are, as Ted Kennedy has forcefully argued this week, real acts of terrorism directed at American citizens. If 9/11 outrages us, then so must these smaller acts that spring from the same wellspring of unthinking hatred. It's time, finally, to take seriously the important job of standing up to them.

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