Police officers in Crafton, Pennsylvania, arrested a 52-year-old black man, Robbie Sanderson, for shoplifting at a CVS in September of 2016. He called them Nazis, skinheads, and Gestapo as they cuffed him.
Because of those epithets, Sanderson was charged with "ethnic intimidation." Insulting the officers in such terms was an anti-white hate crime, from the perspective of the authorities. Sanderson had made bias-motivated "terroristic threats," they claimed. The alleged motivation increased the seriousness of Sanderson's crime from a first-degree misdemeanor to a third-degree felony.
That's according to The Appeal's Joshua Vaughn, who reports that Pennsylvania residents were charged with hate crimes for making offensive statements to police at least three other times. In each of these cases, including Sanderson's, the hate crime charges were eventually dropped. But the threat of a hate crime conviction can still hurt. Defendants might plead guilty to other offenses, for instance, if prosecutors agree to drop a hate crime charge.
In any case, it's absurd to think that the crime of "ethnic intimidation" was meant to include citizens who angrily rant at cops who are arresting them. "This is not what the hate crime statute was for," says the ACLU's Mary Catherine Roper. "This is criminalizing pure speech and that violates the First Amendment."
Making racially biased remarks isn't against the law. Rather, hate crime provisions enhance the penalties for offenses such as vandalism, assault, and, yes, terroristic threats. A man who beats up his neighbor might be guilty of assault, but a man who beats up his neighbor because the neighbor is black could be guilty of ethnic intimidation. Merely shouting at the cops during the course of an arrest shouldn't count.
The cases highlighted by The Appeal present good evidence that we ought to be skeptical of hate crime laws. Although intended to protect the underprivileged from bigotry and racism, they often permit the government to quell speech that is critical of authority. In my recent testimony before the U.S. Commission on Civil Rights, I noted examples from outside the U.S. where stricter prohibitions of hate crime and hate speech empowered the government to arrest people for telling harmless jokes or sharing inappropriate lyrics.
Yet one Pennsylvania news source, Pennlive.com, is concerned that Pennsylvania is too quick to drop hate crime charges:
Police logs across the state are filled with scores of similar incidents—ones in which a bias against someone's race, ethnicity or religion are noted in the crime report. But whether it's a failure of police to file hate-crime charges or the chargers become the go-to bargaining chip in a plea deal, these so-called hate crimes seldom make it into state crime statistics.
As a result, Pennsylvania, a state of 12.7 million, continues to have a chronically low annual reporting rate of hate crimes to the FBI.
As an example of the kind of thing that should be prosecuted as a hate crime, Pennlive.com's editorial board recalled a 2016 incident involving a white teenager who made cruel, racist remarks about a black kid and "shared the result of his disgusting handiwork to Snapchat." The teenager was charged with cyber-bullying and harassment, but the authorities didn't immediately think to add a hate crime charge.
Should hate crime enhancements apply in a case where the underlying crime was itself a matter of speech? Prosecuting more hate crimes in Pennsylvania would indeed generate more reports of such offenses. But that wouldn't tell us whether hate crimes were actually increasing or decreasing, especially if the numbers merely reflect harsher treatment of teenagers who make mean videos and people who shout epithets at cops.
The best point against hate crime laws is the one raised by Commissioner Peter Kirsanow during the hearing I attended:
He directed his questions to all of us, and invited anyone who possessed the information to answer.
"Are you aware of any data, studies, or other evidence, that shows designating a crime a hate crime deters, prevents, or reduces that crime, and second, whether designating a crime a federal hate crime reduces, deters, or prevents incidents of that crime?" he asked.
Neither I nor any of the other panelists were aware of such information, and so the panel fell silent.
Kirsanow continued. "Then, one other question: are you aware of any databases, study, or other evidence that shows designating a crime a hate crime, whether a municipal, federal, or state crime, assists in the resolution of that crime or the apprehension of the perpetrator?" he asked.
"Thank you, Madame Chair," he said, yielding the floor.