23 Oct 2000

THE PERVERSION OF HATE

Laws Against Hate Crimes Are an Idea Gone Sour.
Prosecutors Apply Them Unfairly and the List of 'Special Victims' Keeps Growing.

By FRED DICKEY

Billy McCall is a man of dubious distinction. He is the first man in the nation convicted of a hate crime against women, says his San Diego County prosecutor.

Regrettably, this 29-year-old black man is not the first person convicted of a "hate crime" unjustly.

In September 1999, in a scene captured on a Macy's department store security camera, McCall approached a young woman and tried to make conversation. She walked briskly away. He followed her, talking rapidly, then shoved her into a table of shoes. She stumbled, regained her footing and turned to face him. McCall took a few steps toward her, then swerved away and departed.

The young woman was Yvonne Bejarano, 18-year-old daughter of David Bejarano, San Diego's police chief. After San Diego television stations repeatedly aired the video, four other women came forward to charge that McCall had publicly abused them, too, with assaults ranging from yanking their hair to knocking one of them to the pavement. McCall was found guilty of five counts of assault and battery and sentenced to four years. Jurors also convicted him of a hate crime, adding two years to his term.

At his trial, Hector Jimenez, the deputy district attorney in charge of hate crime prosecution for San Diego County, told the court: "Unless this defendant receives a serious penalty under the law for his crime, the court will have transmitted the message that this crime is not important in society's list of priorities. He's not some unguided missile who will hit anyone and everything. He only hits attractive women when he's angry. . . ."

The phrase "attractive women" was pivotal, because under the hate crime laws proliferating around the country, "hate" must be directed at a particular group: racial, ethnic, religious, gender. But Billy McCall, as it happens, is an equal opportunity hater. He's an angry man capable of lashing out at anyone at any time. "Billy needs help," says his mother, Shelley Julian. "He has this tremendous anger that just comes over him. He can't seem to help himself. If you, or anybody, were standing across the street and Billy thought you were staring at him, he'd be over there in a flash, and you'd better have a good explanation. He gets in fights all the time." Indeed, McCall had been imprisoned before--for violence against men as well as women--and just before being charged with hating women only, he was arrested for attacking his 19-year-old brother, inflicting a facial cut that required 13 stitches.

Prosecutors did not charge him for that crime because it would have contradicted their argument that McCall hated women specifically, says his attorney, Karolyn E. Kovtun of San Diego. McCall clearly is a menace, one who deserves punishment--and who undoubtedly needs psychological help. Does it matter that he is serving extra time for hating women? What's important is that McCall is off the streets. Yet his case is troubling if you believe in justice in the largest sense, if you realize McCall's experience is repeated across the country, and if you consider what the nation's recent love affair with hate crime laws truly has wrought.

Hate crime legislation has been an easy sell to legislatures and the public because of a general belief that the laws will primarily punish synagogue bombers and Klan murderers, who are almost always dealt with severely anyway. Instead, the offenders commonly nailed by these laws are poor and uneducated whites and minorities whose offenses often are closer to throwing punches than bombs. Intended to send a signal that violence against racial, ethnic or religious groups is no longer tolerable in America, the laws instead are being used by prosecutors in questionable circumstances to demonstrate that they are tough on hate. Intended to give some measure of protection to historical victims of racism, the laws instead are being expanded to cover an ever-lengthening list of victims groups.

Former Los Angeles County Dist. Atty. Ira Reiner advocated hate crime laws while he was in office, from 1984 to 1992. He lobbied for them to end hate activities and conspiracies as practiced primarily by groups attempting to impose their agenda on society through terror and violence, especially by targeting minorities. Instead, he says, hate crime laws have become the captive of victims groups and prosecutors who buckle under their pressure. "The hijacking of hate crime legislation occurred when every victim group decided to validate their status by having their group added to the list. I guess if you're not on the list, you're a second-class victims group." John Jackson, supervisor of academic instruction for the California Department of Corrections, says simply that in California, "The Legislature has gone completely mad."

* * *

IN 1987, CALIFORNIA WAS ONE OF THE FIRST STATES TO ENACT A HATE crime statute. It passed handily with bipartisan support. The original law added extra punishment for crimes motivated by race, color, religion, ancestry, national origin and sexual orientation of the victims. Through the years, the list broadened to include gender, disability and mistaken attacks--which means if a heterosexual is assumed to be gay and is attacked, it is a hate crime, or if a white person is confused for a Hispanic and targeted, it is a hate crime. California law also includes a "special circumstance" provision to allow some murders committed as hate crimes to be punishable by death.

As the laws raced through legislatures around the country, there were few voices of dissent. In the lexicon of magic political words, being against hate is abracadabra. Can you imagine a candidate trying to defend against a 30-second commercial accusing him or her of being "soft on hate?"

Today, 45 states, the District of Columbia and the federal government have some form of hate crime laws, and Congress is debating expansion of the federal laws. As the legislation was debated, many liberals were excited, and conservatives were mute. Doubts from 1st Amendment advocates and those who feared increased social divisions were drowned out by pressure groups. Advocates cited, at one time or another, four reasons for the laws: deterrence, protection for members of victims groups, compassion for traditional targets of hate and the making of a political statement that hate crimes will not be tolerated. They promised a high barrier to protect against prosecutors who would try defendants for their political or social beliefs, rather than for their actions. The supporters tend to be gay-rights organizations, some minority groups, the Anti-Defamation League and other organizations dedicated to identity politics, says Gail Heriot, a professor at the University of San Diego School of Law. "These people want to be able to write home to their memberships and say, 'Look what I did for you.' "

The ACLU generally has favored the laws, although many of its members have waffled, torn between their loyalties to traditional liberal allies and their misgivings about the specter of "thought crimes" suddenly being brought before the bar of justice. The laws also enjoyed largely unquestioning support from the media.

* * *

ACCORDING TO THE STATE OF CALIFORNIA, MICHAEL OSTROW IS AN anti-Semite. Caught and convicted. At 4 p.m. on April 28, 1997, a frail 76-year-old man and his wife hastily departed a bus at Sunset Boulevard and Highland Avenue in Los Angeles and started across the street. They were followed by Ostrow, 57, a stranger to them. Ostrow repeatedly cursed the old man as a "dirty Jew." Moments before, he had shouted a similar insult at a woman passenger on the bus. Suddenly, Ostrow pushed the man, knocking him to the ground and breaking his hip. Months later in court, as this "anti-Semite" was about to be sentenced for assault and a hate crime, his public defender, Ilona Peltyn, revealed an astonishing fact: "Mr. Ostrow was born Jewish. His mother is Jewish and lives in Israel. His sister is Jewish. Mr. Ostrow is now Catholic," his attorney concluded, "but he loves his mother."

Prosecutor Carla Arranaga, deputy district attorney in charge of the Hate Crimes Suppression Unit, was anything but alarmed by the disclosure. "Most of the hate crime cases I handle are committed by individuals who attack their very own," she told the court. "This is not unusual, the fact that he is of the same ethnicity."

Statistics do not bear out Arranaga's claim. But if correct, it would mean Los Angeles County is using hate crime laws to prosecute those who prey on their own race, gender, ethnicity and so on. It's hard to imagine this is what the advocates of hate crime laws had in mind. DNA civil rights attorney Peter Neufeld whimsically observes, "Apparently, they're not hate crimes anymore, they're self-hate crimes."

As do most impoverished defendants, Ostrow plea-bargained and was sentenced to six years, which broke down to four years for battery with serious bodily injury and two years for the hate crime enhancement. Afterward, someone close to Ostrow offered an unadorned explanation for his behavior. Ostrow, the person said, "is nuts," and his instability extends to his religious conversion.

Like McCall, Ostrow deserved punishment. But also like McCall, Ostrow hardly seems the hard-core menace that advocates of the laws had in mind. He does, however, count as a conviction, and that is no small thing in a climate where D.A.s are wise to show toughness.

The Los Angeles County Human Relations Commission's 1999 "Hate Crimes Report" claimed that hate crimes in the county had risen 11.7% from the previous year. The announcement led to a bevy of headlines and newscasts, giving the impression that the county was experiencing a hate crime epidemic. The commission warned that the rising number of crimes "erodes the public's perception that schools, places of business and homes are safe environments, protected from hate crime."

A close look at the statistics, however, shows that in this county of 10 million people, the most polyglot population on the face of the earth, the number of alleged--that's alleged, mind you--hate crimes for 1999 was 859. These were incidents reported by police, activist groups and schools. Of that total, 98 resulted in felony charges, and 102 were cases against juveniles. To be sure, one true hate crime is too many. But as crime waves go, this one seemed more like a ripple.

The commission's report also said that the most violent hate crimes "tended to be race-based and were largely caused by racially motivated gang activity." In other words, statistics from the most crime-prone element of society, a segment never known for much tolerance toward anyone, were used to define Los Angeles as a community of rising hate.

The report also showed there were 10 times more hate crimes on the Westside (342 per 1 million people) than in the west San Gabriel Valley (33 per 1 million). Is hatred really 10 times worse on the Westside? It seems more likely that the politically liberal Westside is more attuned to what Kovtun calls "the designer crime of the moment, the latest political correctness crime," and that authorities there are eager to appear responsive.

As for those committing the crimes, Christopher Plourd, a San Diego criminal defense lawyer who has represented six clients charged with hate crimes, says, "It is demonstrable that these laws hit the poor and minorities hardest. It wasn't meant that way, but that's the way it is." The L.A. County District Attorney's Office says that in 1999 it filed charges against 38 whites and 41 members of minority groups-- 31 Latinos, 8 blacks and 2 Asians.

Nationwide, FBI statistics show that there were 6,305 hate crimes reported against persons in 1998. Of those, more than half were classified as "intimidation," which meant they stopped short of violence. At the federal level, the Justice Department says that it has filed an average of five federal hate crime charges a year for each of the last five years. Despite that small number of prosecutions, legislation pending in Congress would expand the law to include acts motivated by gender, sexual orientation and disability. The latter group is included even though the most recent statistics show that just 25 alleged hate crimes against the disabled were reported by the 50 states last year--two in California and none in L.A. County. The question those minuscule figures raise is whether there is need for special protection, especially since an attack on a blind man or a woman in a wheelchair has always tended to put sentencing judges in a nasty mood.

In fact, American justice, when applied fairly, has no problem punishing criminals motivated by hate even without the new laws. In California, sentencing guidelines fall into three categories: low, medium and high. For example, assault and battery by two or more people carries a low sentence of two years and a high sentence of four. On top of such underlying sentences, a hate crime conviction can add a maximum of four years. But in practice, the sentence often does not exceed the maximum for the primary offense. Instead, plea bargains routinely reflect a low or medium sentence for the primary crime, then an enhancement for the hate crime.

* * *

ADVOCATES OF HATE CRIME LAWS HAVE NOBLE PURPOSES THAT GO beyond simply locking up thugs. The purpose is also to deter haters from striking out and to offer some comfort to victims by demonstrating that authorities are especially tough on hate crimes.

If only it were so easy. "It's silly and naive to think the threat of longer sentences will stop people who commit these crimes," says Peltyn, a Los Angeles public defender for 23 years. "It's not like they spend their time studying new legislation. They don't even know there are such laws. Do we really think that knowing there was a hate crime penalty would have stopped Buford Furrow?" she says, referring to the man accused of shooting five people at a Los Angeles Jewish community center and killing an Asian postal worker last year. Peltyn says hate crime laws are ineffective because many defendants are people with disordered thinking. "Lots of them are mentally ill. They get tried as though they're normal because they manage to appear that way. They know they're in court and they understand the charges; they can even sound like they're making sense much of the time, but it's part of their illness that they refuse to admit they're sick, so they go to prison."

As for the solace that hate crime laws could give victims, Beverly Hills forensic psychiatrist Ronald Markman says, "We can't predict how a crime victim will deal with his or her trauma. Legislation alone won't give a person comfort." Recent research into that question reached a surprising conclusion. Victims of hate violence aren't any more traumatized than victims of non-hate crimes, and actually adjust better in sustaining self-esteem, wrote Arnold Barnes of Indiana University and Paul H. Ephross of the University of Maryland at Baltimore in a report published by the journal Social Work.

Susan Fisher, executive director of the Doris Tate Crime Victims Bureau, a statewide victims-rights group, says, "To assume that the emotional shock of crime hits certain groups harder than others is simply not true, and was undoubtedly said by someone who has never been a victim of a violent crime. You would never hear the mother of a murdered child say that the death of her child was less important than someone else's. Violent crime is violent crime, no matter whom it is directed against."

Consider the ironies. A Latino who murders a white man because of his race could be given the death penalty under hate crime laws. Yet if the same killer murdered a Latino child for "sport," he would not get the death penalty. Those kinds of distinctions have a "tendency to Balkanize criminal law," says Jonathan Rauch, who often writes about gay issues. "The message we ought to be sending is that violence is intolerable, period. If you say it's worse to kill someone because he's black, then you're saying it's not as bad to kill someone because he's not."

The effect has been to enhance racial and other divisions, not ease them. "Hate crime laws are symptomatic of society's Balkanization," says Jonathan Kozol, author and children's advocate. "They are futile in the long run. We cannot rebuild society by legislative penalties for insensitive acts and utterances." That's true even for those convicted of hate crimes because, unfortunately, prisons are ripe settings to polish hating skills. For example, says Jackson, the Department of Corrections official: "Let's say Convict A comes in here convicted of armed robbery. If he keeps his nose clean and minds his own business, he can serve out his time without much trouble. However, if Convict B is convicted of armed robbery plus a hate crime against one of the main groups in here, if word of that gets out on the main line--and there's a good chance it will--he's going to have to join a hate group of his own race just to survive. When he leaves here, he's going to be a lot better hater than when he came in."

Does the prison system try to help those convicted of hate crimes? Jackson replies matter of factly: "We don't have a program in here to address that."

* * *

ON ALMOST EVERY NIGHT OF HIS LIFE, MORGAN MANDULEY HAS BEEN a normal boy of 15. But on July 5, he may also have been a mean and stupid kid. Manduley and seven other boys, ages 14 to 17, all from comfortable San Diego homes, are accused of robbing and beating a group of elderly Latino farm workers during a "wilding" in which police say they vowed to attack some "beaners." If the charges are true, Manduley and his buds wanted some kicks with no risks, so they picked on old men who couldn't fight back and couldn't call for help. That suggests a motive closer to cowardice than racial animus, yet all eight were arrested and face charges for their cruel and senseless act that include hate crimes because the victims were Latino. Manduley faces a maximum sentence of 13 years.

To lock away Manduley's white companions with the "hates Latinos" label might well force them to seek haven with a white hate group. Where Manduley would turn for protection, however, is a riddle because he is Latino. Think about that for a moment. Not only does the hate crime charge mean prosecutors are pressing another "self-loathing" prosecution, but they are also asking us to accept a mental high-wire act that raises such questions as: If the seven white kids hate Latinos, why were they hanging out with Manduley? If you hate some Latinos but not others, can you be accused of hating an entire race? Perhaps they hate Latinos but run with Manduley because he's into self-loathing?

The distinctions and contradictions numb the mind. Ponder them long enough and inevitably you will arrive at a single central question: What is hate? There is no agreed-upon definition; there is no psychiatric definition at all. Historically, our criminal justice system has avoided asking prosecutors and jurors to define hate as a motive. The issue is whether or not the defendant broke the law, not why. "Traditionally, motive was used as an investigative tool or to aid the judge in passing sentence," says Steve Carroll, head public defender of San Diego County. "Now it becomes part of the crime. This is turning the system upside down."

Jurors are asked to weigh types and degrees of hate, in effect, to read minds. Perhaps that is the biggest flaw in these well-meaning statutes. They ask for judgments in such vague realms that they are open to abuse by authorities, and to gaping inconsistencies. For example, we have long been told that rape is not an act of sex, but of power and of hatred toward women. Why then is rape almost never prosecuted as a hate crime? Here is prosecutor Arranaga's answer: "We have not prosecuted a rape as a hate crime because we would have to prove that the victim's gender was a substantial motivation. We have cases of rape where men have raped men, men have raped women, and women have engaged in sexual misconduct, which is motivated by the gender of the victim, but is a more exploitative crime of violence and dominating control. And we can't prove that all rapes are gender based."

* * *

THE GREAT LAMENT OF CIVIL libertarians is that the thin line between "thought crimes" and hate crimes has been obscured as law enforcement scrambles after the haters. "What a hate crime charge allows the district attorney to do is say, in effect, 'We can't get you for more than a misdemeanor, but we don't like what you believe in so we're going to punish you by charging you with a hate crime and elevate it to a felony,' " says Kovtun, McCall's attorney. "The statute is extraordinarily vague. Even the jury instructions are vague. The conduct is not defined. The D.A. has all the power. Once he charges something, the court is going to ratify it in the preliminary hearing; that's almost automatic." Although many prosecutors insist they aren't "thought police," many cases indicate otherwise. In Lancaster two years ago, a group of white youths fired a shotgun at a car carrying African Americans. The act itself was not disputed, but Arranaga told the court: The defendants "regularly referred to African Americans in derogatory terms. When he saw an African American, Jason Deal would say, 'Look, there is a stupid, f------ nigger....' Michael Bryant admitted to being a white supremacist.

He and Thomas Deal kept Confederate flags in their bedrooms. Jason Deal likewise admitted he believed in the separation of the races." In a justice system now accustomed to hate crimes, such evidence no longer raises many eyebrows. But it does elsewhere. "It is outrageous when evidence like that can be used in court just to stir people's emotions," says Heriot of University of San Diego School of Law.

Despite claims to the contrary, prosecutors must pursue such evidence if they are to prove hate crimes. "It's inevitable that when prosecutors have a weak case on a hate crime charge, they'll send investigators out to ask, 'What did this guy say 10 years ago about . . .?' " says civil libertarian and columnist Nat Hentoff. So prosecutors look at what defendants read, whom they associate with, what flags they have on their walls. If you are charged with a hate crime for beating up a Christian boy, it's best to hide your Koran.

Curiously, hate crime laws also turn on end a fundamental tenet of American courts: Jurors are almost always forbidden from knowing about a defendant's prior convictions. "In such cases, the fear is that juries will judge defendants because of who they are, and will convict on the basis of what has been done in the past, and that strikes directly at the right to a fair trial," says Loyola law professor Stan Goldman. Yet, under hate crime laws, prosecutors can portray someone's past as that of a loathsome bigot--precisely for the purpose of predisposing the jury to convict.

"You get tougher treatment if you're charged with a hate crime," defense attorney Plourd says. "The basic crime is no different, but you become a target. They use that hate crime mentality in trial to scare the jury into convicting you. Prosecutors make examples out of people, and if you get picked to be an example, you're in big trouble." In San Diego, Plourd attributes much of this attitude to prosecutor Jimenez. "Hector's a zealot. It's scary. As a person, he's decent, but he's just overbearing when it comes to hate crime. He sees it everywhere." Finally, there is this question: Where is the line between actions rooted in "hatred" and those stemming from the tensions and strife that arise from people rubbing against people who seem strange acting and strange looking? It seems unlikely that an unworldly farmer living in Jalisco, Mexico, would harbor dislike for blacks. Yet let that farmer move to Compton, next door to African Americans who may have their own resentments against funny-talking immigrants "taking over their town," and it would come as no shock that our new neighbors might start forming some mutual fear and anger. Perhaps a misunderstanding between neighbors erupts into violence. Is it truly a hate crime?

* * *

ALTHOUGH BIGOTRY AND hate are far from extinguished, the United States has become more inclusive in recent generations. Americans deserve credit for lowering racial, ethnic and religious barriers to equality. Yet people do still engage in crimes based on hate. They are most often committed by undereducated or poverty-stricken or mentally screwed-up losers whose fate it is to fall into society's criminal justice cement mixer. There they can be punished by laws that were adequate long before hate crime statutes sprang up, and by judges who have always had the power to consider motive when fixing punishment. The idea that a separate set of hate crime laws would somehow dissuade them from doing what they do is as weak as the now-quaint idea that capital punishment lowers the murder rate.

A large stone in the foundation of the American dream is the idea that every person is equal in citizenship and that every life should be equally valued and equally protected. No one should accept less, but is anyone entitled to more?