ANTI-HOMELESS VIOLENCE AS A HATE CRIME
By Professor Brian Levin
Center for the Study of Hate & Extremism, California State University, San Bernardino
Even before a new expanded federal hate crime law wound its way through Washington, DC this year, history of another sort was quietly being made in another capital about 30 miles away. Maryland, one of the first states in the country to implement laws and statewide data collection mandates relating to hate crime in the 1980s, became the first state to non-discretionally add homeless status to its hate crime law on May 7, 2009 with the strong and persistent leadership of State Senator Alex Mooney (R- Frederick, MD). Other jurisdictions such as Los Angeles County, Seattle, Cleveland, California, Maine, Puerto Rico, and Alaska have also taken various steps to recognize homeless status in their laws or procedures, in recent years, but Maryland’s action is the most sweeping of any jurisdiction to date. In almost one dozen other states, including California, Texas, and Florida, legislation has been introduced over the past four years to amend their hate crime statutes to include homeless status as a category as well. On July 31, the District of Columbia passed a bill to protect the homeless in its hate crime law. On August 6, it was signed into law by the Mayor.
Hate Crime Definition
Hate crimes are discriminatory crimes where a substantial part of the motive is the actual or perceived status characteristic of another. Discrimination refers to the unequal treatment of people based on their membership in a group. The term “hate crime” itself is somewhat of a misnomer, because in the United States, abstract non-threatening expressions of bigotry are not criminally punishable. In the over 45 states that have hate crime laws, intentionally selecting a crime victim due to a socially recognizable status characteristic is either a distinct criminal offense itself or a factor that increases one’s sentence upon conviction for an underlying offense like assault. Virtually every state statute initially protected on the basis of race, religion and ethnicity. As time passed state legislatures began to recognize that the protections in their hate crime laws excluded various other groups singled out for prejudice related violence. The next phase of hate crime legislation was to increase the number of protected groups in both existing statutes and proposed legislation. Currently, about 32 states protect on the basis of sexual orientation, 28 on the basis of gender and less than 10 include disability. A key provision of the Mathew Shepard Hate Crimes Prevention Act of 2009 was the addition of various protected categories such as sexual orientation, gender, gender identity and disability to federal hate crime law. In 2007, the FBI reported 7,624 hate crimes on the basis of race, religion, ethnicity, sexual orientation, and disability. Of the 9,535 victims targeted, 10 were killed. A 2005 Bureau of Justice Statistics study put the number of annual hate crime incidents at a much higher level, 191,000-largely owing to obstacles relating to reporting and recordation. In 2008, the National Coalition for the Homeless reported that 106 homeless people were victims of hate crimes, 27 of which resulted in death.
The Origins of Hate Crime Laws
The precursors of contemporary hate crime statutes extend back to the post Civil War period when civil rights laws were enacted to protect the exercise of various rights from racially based violence and intimidation. Over time some laws revolved around punishing interference with the exercise of various basic rights, such as using public thoroughfares, voting and housing without reference to the group characteristic of a potential victim. In other instances, laws focused less on the right a victim was exercising, but instead on his or her group status characteristic. It is noteworthy to the contemporary discussion of homeless status to recognize that housing and the use of thoroughfares has been a longstanding protected civil right.
While a small number of older state statutes resembled the federal models, modern state statutes tended to be broader in their application. These laws include protection on the basis of a victim’s real or perceived group status. Structurally, hate crime laws are of two main types, those that enhance the penalty for underlying offenses, and those that can be charged independently without the necessity of levying another charge. In Wisconsin v. Mitchell, 508 U.S. 476 (1993), the United States Supreme Court unanimously affirmed the constitutionality of properly drafted hate crime penalty enhancement laws. In the case, Apprendi v. New Jersey, 530 U.S. 466 (2000), the Court ruled that in most instances discriminatory victim selection must be established beyond a reasonable doubt.
Invisible Hate Crimes: The Homeless People
Perhaps the greatest tragedy of homelessness is the astronomical level and frequency of violent attack that these individuals face. Studies from the United States and Canada indicate that homeless individuals face an annual risk of criminal victimization as high as 66% to 82%, about the highest for any subgroup in the industrialized world. Some of the victimizations against homeless people relate to their actual physical lack of shelter, their location in higher crime areas, disability, as well as risks associated with relationships and activities that occur on the street.
However, over the last ten years a clear and alarming pattern has emerged that show the homeless population face an additional risk of extreme violence. Unprovoked targeted attacks by predominantly domiciled young males assailants that do not involve robbery, personal disputes, or drug dealing have claimed the lives of over 200 men and women nationally over the past decade. Methods include blunt force trauma, shootings, maiming, drowning, stabbings, and the burning of victims alive. Some of these individual cases and sporadic media coverage have brought the problem of bias-related violence against homeless people to the attention of legislators. However, an important partnership between advocacy groups such as National Coalition for the Homeless (NCH) and researchers has shed additional light on the severe extent of the problem. Our Center in conjunction with NCH has found that there were twice as many homeless people killed in apparent bias related attacks than the combined total of every other hate crime category reported by the FBI in the last decade. This anti-homeless data actually excludes some of the other deadly violence that homeless people experience because attacks involving drugs, personal disputes, robbery, insurance fraud and homeless on homeless violence are not tabulated. While there have been many more non-homicide attacks, including rapes and aggravated assaults, the homicide data, which also represents a probable undercount, is considered the most reliable of all offense data.
Class-based violent prejudice against homeless people has become so entrenched in youth culture that it spawned a series of popular mass marketed videos, internet web pages, amateur youtube videos and its own sport label: “bum hunting.” Moreover, class-based anti-homeless prejudice is frequently overlaid on top of other prejudices such as race, gender, homophobia, and mental illness in the target selection process. Many homeless people are women, disabled, veterans, 59% are people of color, and many are gay youths forced from their homes .
Making the Case: Anti-Homeless Violence As A Hate Crime
The intentional bias based selection of homeless people by domiciled assailants
is a hate crime that should be covered by applicable statutes. There are myriad facts to support this contention. A primary justification for doing so relates to the fact that the key rationales for enacting hate crime laws in general also specifically apply to the inclusion of homeless status. First, is the rationale that certain socially identifiable group characteristics relating to one’s actual or perceived identity produce a heightened risk of criminal victimization beyond that of the general population. This is likely more true for the homeless than for many other protected groups. Another reason for including homeless status is the importance of deterring violent bigotry when it significantly burdens an identifiable victim group. Class based prejudice is not only a key motivational component of these attacks; it is actually a more accepted form of prejudice today than most others, thus making its acknowledgement by the law particularly compelling from both a symbolic and deterrence standpoint. A related rationale is that both victim subgroups and democratic society as a whole suffer when socially identifiable status groups are singled out for prejudiced based violence.
As research about the nature and extent of the attacks improved nearly all of North America’s most influential and widely cited hate crime scholars have endorsed the idea of homelessness being a covered category in hate crime laws.
The Mutability Argument
A frequent, though inaccurate, justification for excluding homeless status from hate crime laws is the fact that unlike race, homeless status is mutable, or changeable. While race is indeed an immutable characteristic, and racial discrimination was an initial harm that civil rights law continues to address, mutability itself has never been a preclusive factor for the inclusion of a group in civil rights laws. Constitutional scholar John Hart Ely pointed out that the drafters of the Fourteenth Amendment, a significant and more rigid precursor of modern civil rights statutes, was itself left open ended, and not merely limited to race. As civil rights and later, hate crime protections evolved it has become clear that people are targeted for discrimination and violence based on various mutable characteristics as well. Even in the related and more stringent area of constitutional protection, the direction of analysis has broadened to include whether discreet and insular minorities that face stereotyping and discrimination are covered. Whatever the eventual outcome of the more narrow textual constitutional debate, the judicial and legislative record is quite clear that states have wide authority to enact civil rights protections beyond merely immutable characteristics. Hate crime categories like religion, nationality, gender, age or disability are either mutable or potentially so. The fact that one’s religion can be altered does not make it less worthy of statutory protection-and for that reason it is covered in virtually every state statute. Furthermore, the fact that a particular status characteristic, like disability, is one that many would not choose has not precluded its inclusion in many state statutes either.
As a practical matter mutability is a diversion from proper analysis of whether a characteristic should be covered in hate crime laws, because many currently covered categories are in fact mutable. The main reasons for coverage are an increased risk of victimization and discriminatory victim selection. With most other types of non-hate crimes, financial gain or personal motive form the basis of victimization—thus allowing for a better opportunity at prevention, or at the very least, compliance to prevent escalation. However, when one is attacked because of an identity characteristic the risk of attack is enhanced because victims are not only attacked for what they do, but because of who they are.
Homeless people face notable other difficulties as crime victims. The lack of shelter, the effects of the elements, and frequently disability, make them more vulnerable to attack and defending themselves harder. Some have suggested that the vulnerability of homeless people make them better suited for vulnerable victim statutes. Vulnerability is a common characteristic of many hate victim groups because they are often targeted for group or surprise attacks. Like attacks against Orthodox Jews on the way to services or homophobic street violence, however, anti-homeless violence must also be punished and recognized for the underlying discriminatory motive which labels them as appropriate targets for attack in the first place.
Increasing penalties for anti-homeless attacks through hate crime laws is important for another reason. The homeless lack the legal protections available to people of means. Criminal statutes punish more severely those who illegally invade homes, trespass private property or who steal expensive items. However, because homeless people own little and are without housing, their aggressors often make realistic threats of retaliation and face a smaller range of sanctions if they are caught.
From a purely criminological perspective physical bias-motivated attacks against homeless people in this country, are indistinguishable from other hate crime-with one major exception. Homeless people face a rate of victimization that far exceeds that of traditionally covered groups. Offender characteristics, motive, deterrence, injury levels and weaponry are basically analogous to those found with all other hate crime victim groups. Assailants are often juveniles or young adults armed with imprecise weapons of opportunity like bricks, bottles or bats. Most rely on biased soft-core prejudiced stereotypes that are triggered into action by a desire for thrill seeking, turf protection, peer validation, or notions of group superiority. Also telling is the fact that among the most hard-core hate mongers, like neo-Nazi skinheads, prejudice and violence against homeless people is a notable part of their subculture as well.
Homeless people are among the most victimized groups in the nation, but often fail to report crimes. While many crimes against homeless people involve motives other than prejudice, many in fact do. Just as it is absurd to deny the discriminatory component of hate attacks done on the basis of other characteristics, such is the case regarding homeless status. For this reason, legal barriers are coming down as Republican and Democrat alike across the nation are working to combat the scourge of one of the remaining brutal forms of stealth hate violence.