Crime and punishment?

Forty one years after the first hate crime legislation was passed, and 11 years after Matthew Shepard’s brutal murder, the U.S. Congress is poised to pass hate crime legislation. It’s the Local Law Enforcement Hate Crimes Prevention Act (generally referred to as the Matthew Shepard Act) and the Senate version of the bill has been incorporated into a defense reauthorization bill. The House has already passed its version and it may well have gone for a vote before the Senate by the date of this publication.

Currently and recently we have witnessed three trials in three states being tried as hate crimes within the statutory guidelines of Colorado, New York and California, respectively. Angie Zapata, Teisha Green and Larry King were all slain by weapons wielded with malice by persons consumed with hatred.

All three states mandate stiffer penalties for crimes that are aggravated and accompanied by hateful intent. The legislation before Congress, however, does not mandate penalty enhancement; instead, it provides for federal assistance in the field, financially and with manpower, and more comprehensive compilation of statistics. There are two controversial issues that stand out. The first is the insertion, by Sen. Jeff Sessions (R-AL), of a mandatory death penalty for murders committed and designated as hate crimes. This is a defensive maneuver called a poison pill. We can only hope legislators clearly see through this scam and throw the death penalty provision out. It is doubtful the mandatory death penalty inclusion would withstand judicial scrutiny, but in the short run, this diversion tactic is a gambit and a stall.

The second issue is a matter of philosophy regarding crime and punishment, determent and recidivism. A good case can be made that minority Black and Latino individuals are more often than not the recipients of harsher sentencing guidelines. As well, there are those who say that enhanced punishment not only does not deter, but actually creates an environment wherein hate crimes are more likely to occur. Sadly, we just don’t have enough statistical evidence to correlate recidivism and harsher penalties for hate crimes yet. Conversely, there are those who maintain that the need for enhanced penalties is part of the case that a hate crime is not just a crime committed upon any single individual, but upon a larger population of other similarly situated individuals. Regardless of federal legislation, states will still be able to mandate stiffer penalties through state enacted legislation.

How the courts find, both for the crime itself and for the punishment phase, will and has differed state to state. Allan Andrade, Angie Zapata’s killer, was found guilty of first degree murder and sentenced to the maximum possible sentence in Colorado, life in prison. In cases of murder, this is the best of all possible outcomes. Unfortunately, Dwight DeLee, who killed Teisha Green with a shotgun blast, received a far more lenient verdict: namely, first degree manslaughter. The prosecution had asked for second degree murder…not even asking for first! This essentially means that the jury believed the defendant only wanted to hurt the victim, not kill her. I was astonished to read letters of congratulation from virtually every trans supportive organization. I do not see this as a win, and it wasn’t until I read Vanessa Edwards Foster’s Trans Political BLOG that I found someone who agreed. Manslaughter for DeLee’s crime is a travesty of justice and needs to be acknowledged as such.

Larry Diamond’s killer is a youth being tried as an adult. The trial is impending and we’ll find out exactly what charges the state has decided to bring. Defendant Brandon McInerney has made a public apology, but there is every reason to believe that since the shooting was virtually point blank and because a case can be made for premeditation, the prosecution will ask for first degree murder.
The significance of the timing between the pending legislation and these court cases is self-evident. We have a problem that has gone unaddressed far too long. New reports are as clear as could be. Transgender Europe compiled statistics which “tell the gruesome story: between January 2008 and June 2009, more than 200 trans people were murdered in the world. Broken down, that means that every three days, a trans person is killed somewhere around the globe.” Every three days! Is it not obvious that some form of hate crime legislation is long overdue? Is it not obvious that violent and hate-based crime needs to be recognized for the heinous behavior it is?

Bigots who oppose legislated protections insist that being gay, lesbian or trans is not only deviant, but the result of a conscious decision. It is a lifestyle selected by warped individuals who are, essentially, sinners. The opponents of the Matthew Shepard Act object to the creation of “special” classes of citizens that have been enumerated to receive “special” treatment. This argument misses the point in every way possible. Even though the “choice” argument is fallacious and baseless, and even if being trans were a choice, using that argument as rationale to block protections for vulnerable persons is ludicrous. What sane person would really advocate for violence?

It’s all legal mumbo jumbo created to sidestep any kind of moral imperative or responsibility. The concept of enumerated classes merely designates persons who might be the likely recipients of violence based simply on how they appear or what they believe. There are no “special” rights being conferred upon them, other than to be free from the threat of violence, regardless of race, religion, disability, sexual orientation or gender identity or expression. No one’s first amendment rights are being abridged, for any reason, in any manner.

It’s the same old chant we hear, however, regardless of the issue: “You people are amoral and immoral. You are attempting to legislate away my right to be a bigot. You are persecuting me for my religious beliefs.” Expect to hear more, as hate crimes legislation, ENDA and healthcare reform move forward. Verbal expressions of hate are perfectly legal. Violent behavior isn’t. And, soon, violent behavior motivated by hatred won’t be either.

— Comments and corrections can besent to editor@q-notes.com. To contact Robbi Cohn, email robbi_cohn108@yahoo.com.