Actor Jussie Smollett has reported an attack by two unknown assailants in the early hours of January 29th in Chicago, Illinois. The men allegedly yelled racial and homophobic slurs at him, punched him, poured an unknown chemical substance on him, and wrapped a rope around his neck while shouting “This is MAGA country”, referencing President Trump’s slogan, Make America Great Again.
Smollett is a very talented actor, singer, director, and photographer. He currently plays the role of a gay musician in the Fox drama series Empire.
The rope was no doubt intended to conjure up recollections of lynchings, which were racially motivated acts of hate used more than 100 years ago through the mid 20th century in this country to keep African-Americans from claiming their civil rights.
The perpetrators have not been caught, and police are continuing the investigation. Meanwhile Smollett’s family issued a statement that included, “We want people to understand these targeted hate crimes are happening . . . all across our country. These are inhumane acts of domestic terrorism . . . Words matter. Hateful words lead to hateful actions. . . . Passivity will be our downfall.”
A hate crime is a criminal act motivated by bias against the victim’s race, color, religion, or national origin. In some states additional classes are protected including sexual orientation, gender, gender identity, and disability . A few states’ hate crimes also cover age, political affiliation and homelessness. Forty-five states and the District of Columbia have hate crime statutes. Typically they elevate the level of a crime when the perpetrator is motivated by prejudice. This increases the penalties. For example, in New York a hate crime is deemed to be one level higher than the offense committed. Thus, an assault that results in an injury that isn’t permanent or prolonged (for example, a broken arm) is a misdemeanor with a maximum jail sentence of one year and a fine of $1,000. If however the defendant was motivated by hate of one of the protected classes, the crime elevates to a felony with potential jail time expanding to two to four years, potential fines increasing to $5,000.
The reason these criminal acts are treated more harshly is that, not only is the victim injured, but also many in the community are offended, and left feeling fearful, violated and vulnerable. Such crimes also spark dangerous and damaging reprisals, sometimes violent, from the victimized community and others.
The federal government enacted in 2009 a hate crime statute called the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act. Mathew Shepard was a student at the University of Wyoming targeted, at least in part because he was gay, for a brutal beating that resulted in his death. James Byrd, Jr. was an African American killed by white supremacists who tied him alive to the back of a truck and dragged him three miles over rough terrain.
The 2009 federal law added gender, sexual orientation, gender identity and disability to the classes protected by federal hate crime laws. Note: This was the first federal statute to provide protection to transgender people. Additionally, the federal statute authorizes the federal government to provide aid to states in the investigation and prosecution of hate crimes. Further, if a locality is unable or unwilling to prosecute a crime as a hate crime, federal law enforcement is now authorized to do so. The Hate Crimes Prevention Act also provides federal money to states to help underwrite the expenses of investigating and prosecuting hate crimes.
The constitutionality of elevating penalties for criminal acts motivated by dislike of a protected class was challenged in the landmark case of Wisconsin v. Mitchell (508 US 47 (1993). It involved a murder motivated by racial hate, which elevated defendant’s sentence based on a state hate crime statute. The court rejected the defendant’s claim that the legislation violates a person’s free speech rights and upheld the stricter sentence. Wrote Chief Justice Rehnquist, “[T]his conduct is thought to inflict greater individual and societal harm . . . bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest.”
Note: Hate crimes do not outlaw hateful speech. Such commentary, short of violence or an incitement to immediate violence, is protected by the right of Free Speech in the Constitution.
Another Note: The legislature of each state determines a range of possible sentences for each crime. Typically the legislature provides a range of jail time including a minimum and a maximum. For the five states that do not have a hate crime statute, judges can impose sentences closer to the maximum when hate plays a role.
 The states without such a law are Arkansas, Georgia, Indiana, South Carolina, and Wyoming.
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