Hate Crime Laws: A Costly Victory

Prosecutors, Not Judges, Are in Charge

At last, the state legislature has passed a hate crimes bill, which mandates extra prison time for people convicted of bias crimes. It was signed into law by that eminent civil libertarian George Pataki, who said this law could have prevented the Holocaust.

There are some dissenting voices, reminding the celebrators not only of the record number of prisoners in this state and in the country but also of sentencing guidelines that force judges to yield much more power to prosecutors who charge and overcharge alleged crimes.

On July 12, the unintended dangers of the New York hate crimes law were illuminated in a commentary on WNYC, which broadcasts far more new, useful information and analysis—local and national—than any other radio station in the city.

This warning was given by David Feige, a supervising attorney for the Bronx Defenders, lawyers who interact with social workers and defendants' families as well as appear in court. Previously, Feige was a senior trial lawyer with the Neighborhood Defender Service in Harlem, which deserves much more funding from Rudolph Giuliani.

David Feige pointed out the difficulties in determining whether something actually is a bias crime. There are obvious cases—a skinhead shouting "nigger" as he beats a black man. The New York statute is far-ranging—covering hate crimes on the basis of race, religion, gender, sexual preference, and age.

One of many possible borderline cases, as cited by Feige: "Two young men get into a bar fight. Both are white. They were arguing about religion before they came to blows. One man has a broken nose; the other is arrested. . . . [Before the hate crimes law], a judge could sentence the young defendant to anything from a fine to five years' probation, or a prison term of up to seven years" for someone without a previous felony conviction.

"But now, charging the same old second-degree assault as a bias crime, the prosecution"—which determines what the charge is—"can essentially remove the judge from the plea-bargaining process. Now, instead of ordering the [defendant] to perform community service and comply with the probation department for the next five years, a judge can only offer a prison sentence of three and a half years or more. Anything less is now in the hands of the district attorney." (Emphasis added). No probation, no community service.

Feige added: "Judges are more likely to craft a penalty that fits the crime and the person—regardless of whether it bolsters the 'tough-on-crime' reputation" of prosecutors who have to be reelected to stay in office.

Under the new bias law, the sentence for each category of crime has been increased. For example, a second-degree assault, like the one in the barroom fight described above, is ordinarily classified as a D violent felony, which can bring up to seven years in prison for someone without a previous felony conviction.

Now, if someone is charged and convicted of a hate crime, that D violent felony becomes a C violent felony, which brings a sentence of between three and a half and 15 years. And under existing state law, there are also mandatory minimum penalties, which increase as the categories are bumped up under the hate crimes law.

Accordingly, Feige continued, "Armed with draconian penalties, prosecutors threaten to charge a defendant in a questionable or inappropriate case with bias on top of an already existing crime. Assistant district attorneys overcharge cases to get leverage over defendants to scare them into pleading guilty." The assistant district attorneys know—in a city or borough where there is much public approval of socking it to perpetrators of hate crimes—that there will be mandatory minimum sentences that will lock in the judge.

Over the last eight years, debating and lecturing around the country in opposition to hate crime laws, I've come across a number of questionable convictions under these bias statutes. Some are cited in an essential book on this subject—Hate Crimes: Criminal Law & Identity Politics (Oxford University Press), by New York University law professor James Jacobs and researcher Kimberly Potter.

They quote Detective John Leslie of the NYPD about arrests that are not clear-cut bias crimes. Road rage, for instance, exploding between the races.

"I hate these cases," says Leslie, "because they become real mysteries. . . . Everybody jumps on the bandwagon, but nobody has the facts."

Furthermore, when a prosecutor has to deal with an ambiguous case—was the violence actually caused by bias?—he or she can send investigators to find out whether the defendant has shown any such prejudices in the past, at the local bar, in his or her choice of reading. As Jacobs and Potter note, in an Illinois case, Peoplev. Lampkin, a prosecutor successfully "presented as evidence racist statements that the defendant had uttered six years before the crime for which he was on trial." What was the context then? Were the witnesses' six-year-old memories reliable?

"In effect," say the authors of Hate Crimes, "a hate crime trial may become a wide-ranging inquiry into the defendant's character, values, and beliefs."

To paraphrase what Joe McCarthy used to demand of alleged subversives: "Are you now—or were you ever—a bigot?"

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