The state of hate
The fallacy of "hate crimes against police" reveals a deeper flaw in how the state responds to violence against marginalized groups.
In the hot summer of 2016, in the wake of the killing of five Dallas law enforcement officers by a man allegedly motivated by his hatred of police, Rep. Frank Burns (D-Cambria) introduced a bill that would classify certain offenses committed against Pennsylvania law enforcement officers as hate crimes.
In a familiar justification for expanding the crime code, Burns claimed that increasing the penalty for causing hurt to the police was necessary to stop it from happening. He invoked an epidemic of anti-police ideology, cited vague and unsubstantiated statistics of “near-daily” killings of law enforcement officers—of which, in 2016, the actual number was 62 nationally—and generally asserted, without irony or elaboration, that police occupy the most hated position in society today. Like many of his fellow travelers on the thin blue line, very little of what Burns claimed about police was true. Some of it was embarrassing and offensive. He was very fond, for instance, of the idea that police are hated simply for the uniform they wear—as if it were indelible, like skin.
Burns knew that the “Blue Lives Matter” title he chose for the bill was controversial, and proudly embraced it as such. Like the cultural campaign from which it took its name, it was intended as a partly covetous, partly mocking reaction to the Movement for Black Lives—to the continued struggle for civil rights generally. The letter of the law would reflect this reactionary sentiment. Rather than create a new statute, the bill proposed to amend Pennsylvania’s existing “ethnic intimidation” statute to become the “ethnic and employment intimidation” statute, designating employment as a police officer as a specially protected category alongside race, religion, and ethnicity. The penalty for crimes against law enforcement officers would be the same as for other bias-driven crimes: one degree higher than the underlying offense would otherwise be charged.
It is tempting to say that Burns and his “Blue Lives Matter” bill—which did not pass in either the 2015-16 or 2017-18 sessions, and never materialized after that—make a farce of the concept of hate crime. But that would assume that Pennsylvania’s hate crime laws don’t make a farce of it already. From its passage in 1982, the ethnic intimidation statute has been widely regarded among lawmakers, police, prosecutors, and communities alike as an unreliable mechanism for combating violence against marginalized groups. For one thing, ethnic intimidation does not constitute a crime of its own, but rather an enhancement of a separate, underlying crime. What this means is that the degree to which any act of violence is a “hate crime” is a matter of the state’s discretion: what the police decide to charge, what the prosecution decides to pursue, and what the judge decides to dismiss or convict on. Even if you accept the legitimacy of the criminal punishment system, it should be obvious that the high degree of contingency built into the ethnic intimidation statute makes the prosecution of hate crime vulnerable to, at the very least, discrepancies between the offense and its legal consequences.
It is also the case that hate crimes are difficult to substantiate in court even when faithfully prosecuted. In 1985, for example, two white men broke into the apartment of a Latino family, shooting the husband before beating his wife and her mother. The police alleged that the assailants had been hired by the family’s landlord to scare them out of the apartment and charged the men with assault and ethnic intimidation. The judge ultimately dismissed the latter because, in the words of the police chief who handled the case, he “didn’t understand the ethnic intimidation law,” and the men were convicted on the assault charge alone.
This is not an anomaly in the government’s pursuit of hate crime, either; the difficulty of proving malicious intent in these situations has been a well known barrier to justice from the start. A 2016 analysis by The Appeal of ethnic intimidation cases in Pennsylvania, for instance, found that only 12 of 65 resulted in a conviction. In 1984, only two years after the passage of the ethnic intimidation law, then-District Attorney for Philadelphia Ed Rendell advised in a seminar on hate crime that communities should not rely too much on the legal system, but learn to protect themselves through, e.g., public education and neighborhood watches.
The point, here, is that the inadequacy of the hate crime law is not an obstacle that the state wants to overcome. It is a convenience that the state wants to exploit in service of a fiction in which it has nothing to do with the social violence it oversees. Far from implicating the criminal punishment system, the relatively low arrest and conviction rates responsibilize the very communities that suffer harm, as if to remove the state from the equation entirely. D.A. Rendell reinforced this point when he reminded his audience that, while racist violence was a serious problem in Pennsylvania and the U.S., it nonetheless “pale[d] in comparison to that in the Soviet Union,” because under socialism it is the state that is the “moving force” (whereas under capitalism, implicitly, only individuals are truly capable of harm). This in the era of Reagan, whose administration would take three more years to even acknowledge the AIDS crisis that was already three years raging. To say the capitalist state is not the moving force of harm!
In the aftermath of events of mass racist violence—the murderous attacks on Asian spa workers in Atlanta this week, notably—we should be especially wary of any attempts by the state to double down on hate crime legislation. This legislation does not work to stop hate crime. It exists to be an acknowledgment of vulnerability, a reminder to the vulnerable that someone wants to murder them. It helps no one to be served with this reminder. What would help is to build networks of safety and care outside of the carceral system, not just neighborhood watches but “life-affirming institutions,” as Mariame Kaba, real power independent of the state function. That is something that will never come from a lawmaker, a prosecutor, a judge, and certainly not from a cop. The government won’t deliver real justice for communities. Only communities can do that.