How “Hate Crimes Against Police” Expose the Fatal Flaw Within Hate Crime Statutes

Hate crime legislation lent legitimacy to a 40-year carceral program that has wrought immense damage on communities of color. In an ironic twist, the police – who’ve been the main enforcers of this program – now want to invoke these laws for their protection.

In early January, the National Fraternal Order of Police, the nation’s largest police union, asked Congress to expand federal hate crime laws to include violence against police officers, citing the recent killing of two New York City Police Department officers in their patrol vehicle as well as several other recent, ambush-style murders against officers in Las Vegas, Pennsylvania and New Jersey.

This isn’t a new request so much as a reinvigorated one: The Fraternal Order says they have advocated for such legislation for over a decade. But during protests against police violence in New York City in December, at least one protester of the more than 200 arrested claims he was charged with a “hate crime,” indicating that some officers may be pushing for the charge in their own clandestine way.

The activist, who asked to remain anonymous, told Truthout the police didn’t tell them they had been charged with a hate crime in the second degree – a felony – and they found out only after reviewing the report listing their initial charges. The charge was eventually dismissed, but the activist said it had a “psychological effect” on them.

“I was freaked out because I thought, ‘How was it possible?'” the activist said. After they saw the charge, one officer gravely told them that what they did was very serious. “It had the effect of making you think you did something much more serious than you really did.” Committing a felony hate crime carries the potential of serious jail time.

Do police qualify as a “persecuted” group – enough to merit further “protection” under the law? And if they do, what are the implications of punitive attempts to enforce civil rights?

While the charge was eventually dismissed, it wasn’t the first time a protester has been charged with a hate crime against the NYPD. During Occupy Wall Street, defense attorney Moira Meltzer-Cohen recalled that another prominent activist was charged with a hate crime after being arrested at a demonstration – but to her knowledge, it was a mistake.

“My experience with this is that when the DA is putting charges into the complaint, I think they have to click on something and they have accidentally clicked on the hate crime enhancement,” wrote Meltzer-Cohen in an email to Truthout.

The NYPD never responded to Truthout’s inquiry for a comment regarding hate crime charges against activists. But with many dissident officers rebelling against New York City Mayor Bill de Blasio by refusing to enforce certain laws, there’s obviously a sense of persecution among the police, and it’s not hard to imagine why some are pushing hard for the new hate crimes statute.

Benjamin Wallace of New York Magazine convincingly suggests that the NYPD’s grousing is part of an emotional episode in which the cops are dwelling on their “own alienation, and difference.” Citing NYPD Commissioner Bill Bratton’s comments that the police “feel they are under attack from the federal government at the highest level,” Wallace concludes that the NYPD is politicking to reinforce the reverence and protection to which they’ve grown accustomed over the last few decades.

But do police qualify as a “persecuted” group – enough to merit further “protection” under the law? And if they do, what are the implications of punitive attempts to enforce civil rights?

History of Disadvantage

In a recent story from US News & World Report, legal experts expressed incredulity at the prospect of hate crime “protection” for police.

“There isn’t really any need to add police officers to hate-crime legislation and I don’t think it makes sense. I think it’s contrary to the concept of what a hate crime is,” Steve Freeman, the director of legal affairs at the Anti-Defamation League, told US News.

To determine whether that’s true, though, we have to ask: What is a hate crime, anyway?

The push for hate crime laws in state legislatures was well received in the climate of the 1980s, when there was great bipartisan approval for toughening the criminal legal system overall.

The origin of hate crimes legislation is in the 1964 civil rights bill, which itself was a direct result of anti-segregation organizing in the South and gave legal cover to people of any race, religion or nationality engaged in certain federally protected activities like voting and going to school. The development of hate crime laws was led by identity-based social movements in the 1970s, which argued that bias-motivated crimes merited harsher punishment because they targeted oppressed communities. Kay Whitlock, a writer and activist, specifically cites the Anti-Defamation League’s pivotal role in crafting hate crime laws, noting that the anti-anti-Semitism group developed an influential template for drafting hate crime laws.

“The ADL emphasizes that the core of its approach is a penalty-enhancement concept [. . .] criminal activity motivated by hate is subject to a stiffer sentence,” Whitlock writes in The Politics of Fear and Queer Struggles for Safe Communities. The theoretical framework to the ADL’s approach is “rooted in a theory that casts bigotry and violence as the product of criminal extremism on the part of individuals and small groups.”

The push for hate crime laws in state legislatures was well received in the climate of the 1980s, when there was great bipartisan approval for toughening the criminal legal system overall. A decade later, hate crime statutes proliferated rapidly as a loose coalition of liberal groups lobbied Congress to adopt harsher penalties against bias-motivated crime. Many of these groups supported the passage of the Violent Crime Control and Law Enforcement Act – one of the largest expanders of the prison system and police forces in history – because the measure toughened consequences for committing hate crimes.

More recently, liberal groups successfully pushed for the passage of the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act in 2009, which expanded federal hate crime law to include crimes that seem to be motivated by a victim’s actual or perceived gender, sexual orientation, gender identity, or disability.

Jennifer Earl, a sociology professor at the University of Arizona who has researched the development of hate crime legislation, says that the groups “protected” by these laws share a history of social disenfranchisement, and doubts whether the police as a class can claim the same thing.

“It is not clear that the history of disadvantage for police would make them similar as a group to other groups that have received protection,” Earl told Truthout. From her work studying social movements in the 20th century, she hypothesized that the police-as-victims paradigm could have gained prominence in the 1960s and ’70s. Back then, she says, “There was a great deal of criticism about how police were handling race relations in the US. The police proved to be exceptionally touchy and cast themselves as often the victims of the public.”

By most measures, policing has become less dangerous since the 1970s. Journalist Radley Balko writes that 2013 was the safest year to be a cop since World War II, and though a study by National Law Enforcement Officers Memorial Fund revealed officer deaths climbed nearly a quarter last year, it is still no more dangerous than many other professions. Up until very recently, law enforcement also enjoyed an aura of prestige in most mass media and much of popular culture. The number of TV shows and films featuring sympathetic portrayals of police have proliferated in the last few decades, and after 9/11, law enforcement gained a heroic sheen, which the government leveraged in part to enhance federal funding for police.

Groups do not have to be historically oppressed to be protected by laws; for example, if a white male is assaulted because they are white, their assaulter could be charged with a racial hate crime. But adding “police” would mark the first time crimes against a particular profession could result in penalty enhancement. It would also, paradoxically, give legal protection to a group that is notorious for perpetrating violence against the very people that hate crime laws were originally intended to protect.

Hurting More Than Helping

On the whole, people of color are more likely than others to be harmed by the police. Blacks are much more likely to be arrested and killed by police than whites, and immigrants – another group named in hate statutes – are targeted for arrest and harassment by police. A 2005 report from Amnesty International found that officers verbally abused LGBTQ people routinely and disproportionately targeted them for incarceration. Such unequal treatment at the hands of the cops fits into the ways the state has historically disenfranchised these groups, and many activists doubt whether prisons and police can really be leveraged to egalitarian ends.

“‘Get tough on crime’ policies and approaches do not prevent racist, misogynist, and antiqueer mistreatment and violence; they escalate it, albeit in forms that are often hidden from public view and silenced in mainstream political conversation,” writes Kay Whitlock. She argues that hate crime legislation springs from a paradigm that presents heightened punitiveness as the solution to “massive social and economic fallout.” Such fallout was increasingly common after the 1960s, as the culture of liberation movements mixed with the economic malaise and government policies that weakened labor rights while strengthening owners of capital.

“Incarceration does nothing to address the root reasons why someone was violent; it just plunges [them] into deeper poverty, further isolates them from their community, and subjects them to further violence and trauma.”

Enlarging the criminal justice system, therefore, allowed the state to maintain an increasingly unfair economic system while safeguarding against the prospect of open revolt – especially by people of color, who are not only more likely to be incarcerated and abused by the police, but also tend to be poorer. As an example of how this paradigm hurts more than helps people of color, Whitlock points out that the Violent Crime Control and Law Enforcement Act, into which Congress tucked enhanced hate crime provisions, also introduced mandatory minimum sentences for drug crimes, authorized the hiring of 100,000 more police officers and eliminated education grants for prisoners.

The contradiction of relying on the state to correct historical oppression through carceral means is clear when you consider that blacks are charged with hate crimes at a higher rate than whites, and white victims reported hate crimes against them the most, says Sasha Alexander from the Sylvia Rivera Law Project.

Furthermore, Alexander told Truthout, “Incarceration does nothing to address the root reasons why someone was violent; it just plunges [them] into deeper poverty, further isolates them from their community, and subjects them to further violence and trauma,” all of which increase the likelihood the prisoner will be just as, if not more, violent upon release.

Like Whitlock, Alexander maintains that the interlocking forces of over-policing and mass incarceration, as well as a disempowering economic system, are the most pressing forms of violence facing people of color. The prospect of giving police more power through hate crime laws is “extremely dangerous,” Alexander said.

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It remains to be seen how receptive a GOP-dominated Congress will be to designating police as a protected class. Legal experts are skeptical, and the NYPD’s defiance has squandered some of its cultural capital in the wake of the officers’ murders. But it’s not an unlikely prospect: White House Press Secretary Josh Earnest told Yahoo! News that President Obama will consider the initiative when he convenes his special task force on policing this month.

The effectiveness of hate crime laws is disputed, and many believe it is impossible to isolate their impact on the rate of bias crimes. But if district attorneys attain the power to add charges for crimes-against-cops, we can be sure that such penalties will compound punishment immensely. After all, there are already laws against injuring police officers in most states. Hate crimes legislation would add the danger of a sensitive officer deciding that he or she was sufficiently maligned by a nonviolent arrestee to add hate charges in retaliation. It’s not hard to imagine this having a chilling effect on protesters, too. While we don’t know if a statute would make police “safer,” we do know whom it would most likely harm.

Considering how hate crime campaigns have lent legitimacy to a 40-year carceral program that has wrought immense damage on communities of color, it is an ironic twist that the police – who’ve been the main enforcers of this program – now want to invoke these statutes for their protection. If they are successful in that attempt, it should serve as a last-straw warning against using prisons and police to engineer a fairer society.