Rethinking Hate Crime Legislation

When Allen Andrade was on trial for the murder of Angie Zapata I was stuck at home sick—I was downing codeine-laced cough syrup like there was no tomorrow and, despite all the throat lozenges I sucked, I scarcely had any semblance of a voice. None of this stopped me from leaping up to scream a mixture of emotions at the guilty verdict. At that moment I was extremely happy that finally, Angie had justice—her murderer would never again see the outside world, and what’s better he had been found guilty of a hate crime in the face of a “Trans Panic” defence; I felt hope this conviction would set a precedent for future trials, give hope to the families of other victims that there might still be justice in this world. I felt angry. Angry that even now a life in prison seemed too generous, considering what this man did to Angie—my thoughts flashed back to Gwen and Brandon, to Duanna—to all the unnamed victims. I thought of how these people, my “family,” were brutalized in the most inhuman of ways. Suddenly our messed up justice system seemed too good for their murderers. Last, I felt profound depression. This conviction didn’t bring Angie back; none of this so-called justice can undo what’s been done. We have lost so many lives—so many who were really just at the beginnings of life. In the face of the loss, what we call “justice” seems to have very little meaning.

This last emotion aside, however, I’ve consistently been an advocate for hate crime laws, even playing my own little role in the passage of the trans-inclusive hate crime bill in Washington State. The theory behind hate crime laws is simple enough to follow. On one level, these laws are about getting justice for the victims, the vast majority of whom belong to marginalized and oppressed communities. In terms of federal hate crime laws, federal agencies and recourses can be used to investigate hate crimes in instances where local law enforcements agencies either don’t have the resources or the will to investigate and/or pursue prosecution. Hate crime laws also come with enhanced punishments, which are very important for two reasons. First, in the cases of anti-transgender hate crimes, the defendants often are able to get lesser sentences with plea bargains and the employment of the “Trans Panic” defence. Many of these defendants get off with mere slaps on the wrist for committing incredibly heinous murders; enhanced punishments would correct some of this imbalance. The second reason for enhanced punishments is directed at the enhanced nature of a hate crime. The most common argument I hear against hate crime legislation (aside from that it will be used to silence religious institutions) is that it created a different standard of justice. After all, “all murders are hate crimes” and establishing this system offers preferred protection over others. Of course this is nonsense; hate crimes have further reaching effects than just to the immediate victim. Hate crimes target entire populations—a population that, as I already said, is more often than not already marginalized and oppressed. Hate crimes at this rate amount to terrorism. So hate crime laws often come with enhanced punishments attached, as, in theory, punishment fits the crime and greater punishments are necessary for the atonement of greater crimes. Hate crimes are most certainly greater crimes.

These were the sorts of arguments I had grown used to using as a response for any opposition to hate crime laws, and all of this opposition was invariably coming out of privileged heterosexual cis males of the conservative religious variety. Imagine my surprise this week when I see members of the queer community (of all socio-economic/political backgrounds) arguing against hate crime laws! Well damn, this was just unexpected. I first noticed the shouts of protest on Bilerico (http://www.bilerico.com/2009/07/why_hate_crimes_legislation_is_a_terrible_idea_a_r.php) but quickly travelled to other sites (http://srlp.org/node/301 and http://www.feministing.com/archives/016825.html) that showed me how old this queer opposition is. All these sites make some very interesting points, all of which I feel are extremely important to consider in the debate over hate crime legislation. The first, possibly most, important argument stems from the historic systematic oppression of people of colour and people in the LGBTQ community at the hands of the “justice” system. We don’t have to look any further than the treatment Duanna Johnson received at the hands of the Memphis police or the recent arrest of Prof. Henry Louis Gates Jr. for evidence of the justice system’s corruption. But reading the Sylvia River Law Project’s discussion of LGBT people being arrested for simply defending themselves against hate crimes, it becomes clear that enhanced penalties of hate crimes could be used to target the very people they’re supposed to be protecting. Once imprisoned, trans people are open to whole new levels of brute cruelty the likes of which I cannot begin to fathom. Our criminal justice system is broken, and the arguments of the SRLP must be taken into account, lest we exacerbate the problem by breading more violence, hatred and oppression. The letter from the SRLP has caused me to pause and examine my own motivations and assumptions. In the past I’ve been fine with allowing my vengeful side to rear its ugly head whenever hate crimes came up. During Andrade’s trial I sat, sick in my bedroom uttering curses against the man, hoping the bastard would fucking suffer for what he did. I would have been fine if the man had been brutally tortured and, were I honest with myself, I would have openly admitted that I hated the man for what he did to Angie Zapata. This visceral reaction is understandable, maybe even warranted on some level—but at some point we have to break the cycle of violence. I know this as a pacifist, and as an advocate for peace: the ethics of the superego demand more of us. This is the crossroad we are at; this is what makes the debate so much more of a headache: we can accept that our justice system is broken and we can argue that enhanced punishment and stronger laws pose more of a threat to our community than a protection, but at the end of the discussion we are left with the very sobering question of what to do with those who do commit hate crimes. Even if we put all our efforts into prevention and education, and even if we score complete non-discrimination legal protection, hate crimes will still be a part of our reality, and they will not go away, just as racism and sexism have not gone away. There has to be consequence for action; there has to be punishment for crime.
I’m far from comfortable with this issue; there has to be justice for the victims of hate crimes, I just don’t know what this justice looks like anymore. I’m reminded of Sylvia Guerrero’s statements after the death of her daughter, Gwen:

No amount of justice can return the part of me that these men took when they killed Gwen. The closure that people keep talking about hasn't come. It would be so much easier to write that it had. After all, that is what most people want to read: The system worked; my family is whole; the story is over. It would be comforting and allow us to get on with our lives. Of the many things I'm feeling, closure isn't one of them.
...
Maybe the reason I don't have closure around Gwen's death is that there is still work to do. If I've learned anything since Gwen's murder, it is that hope alone is not enough. Each of us who hopes to live in a state where our families are protected needs to work toward making California that place. For instance, boys and girls in schools throughout the Bay Area need to hear, firsthand, how important it is to be themselves and to respect each other's differences.

After her daughter’s death, Sylvia Guerrero became an advocate for transgender rights and frequently visits schools to raise awareness and understanding of transgender issues and lives. I am aware that no amount of education and sharing will prevent all hate crimes, but I also strongly believe the best way to fight ignorance and bigotry is to come out and share our stories. Maybe this is what justice looks like.