In August, the United States was confronted with a stark reality in Charlottesville, Virginia. Like a volcano that lies dormant before suddenly exploding and wreaking havoc, hatred some believed was relegated to dark corners and only spoken in hushed tones erupted into the streets of the college town and onto TV screens across the country.
The events in Charlottesville prompted a re-examination of bias-based crimes and, for some, a call to introduce new hate crime legislation.
But are the current laws working?
Under Pennsylvania law, a person commits ethnic intimidation if they commit another crime such as harassment, assault or arson with malicious intent toward a person’s, or group’s, race, color, religion or national origin. A person cannot be charged with ethnic intimidation without being charged with another crime.
The grading of ethnic intimidation is dependent on the underlying crime. Ethnic intimidation is graded one step above the other offense.
For example, if a person is charged with simple assault and it is determined the assault was racially motivated, the simple assault would be categorized as a second-degree misdemeanor, making the ethnic intimidation charge a first-degree misdemeanor.
The law was amended in 2002 to include protections against crimes based on a person’s actual or perceived mental or physical disability, sexual orientation, gender or gender identity.
That change was deemed unconstitutional by the state judiciary because of the way it was passed through the legislature. Bills have been introduced to reinstitute those protections but have not been passed by the Legislature.
In 2016, more than 230,000 criminal cases were entered in criminal justice systems across Pennsylvania. Only 60 of those cases included the charge of ethnic intimidation, according to an analysis of court records conducted by The Sentinel.
Nearly 77 percent of all defendants were male, and roughly 70 percent of defendants were listed as being white, according to court records.
More than 40 percent of all cases were filed in Philadelphia or Allegheny counties, and more than 40 of the state’s 67 counties filed no hate crime charges in 2016.
Of the more than 35,000 charged assaults in the state in 2016, only 25 — or roughly 0.07 percent — were charged as being racially or ethnically motivated, according to court records.
This tally, however, is likely not an accurate reflection of how many bias-based incidents happen each year.
“Hate (and) bias crimes are many times under-reported,” said Christina Reese, spokeswoman for the Pennsylvania Human Relations Commission.
The Human Relations Commission “promotes equal opportunity for all and enforces Pennsylvania’s civil rights laws that protect people from unlawful discrimination,” according to the commission’s website.
More than 40 percent of all violent hate crimes in the United States between 2011 and 2015 were reported to police, according to the Bureau of Justice Statistics.
Of those cases, only about 10 percent resulted in an arrest, and only about 4 percent of all violent hate crime – whether reported or not – resulted in an arrest, according to the bureau.
For prosecutors, adding the ethnic intimidation charge adds a new element that has to be proven, and proving racial or ethnic bias can be difficult.
“I think it’s the kind of charge where you want to be certain that you have the strongest possible evidence in that area,” said Richard Long, president of the Pennsylvania District Attorneys Association. “It tends to be, or is viewed as, inflammatory or gets a lot of attention.”
In the case of an arson, a prosecutor would need to prove certain elements like the defendant meaning to start the fire and doing so recklessly puts another person in danger or starts the fire with the purpose of destroying or damaging an “inhabited building or occupied structure of another.”
The law does not require a prosecutor to explain or prove why the defendant started the fire.
An additional charge of ethnic intimidation, however, would.
“I think a prosecutor wants to be absolutely certain, and it’s hard to say how many times it’s happening,” he added. “It’s hard to say whether there just aren’t that many incidents or why the numbers are what they are.”
Beyond the difficulties in proving motivation, state-level hate crime laws have come under scrutiny as potentially being a way for government authorities to restrict free speech.
“It just strikes me that the political motivation that may underlie a crime strikes me as not something we should be punishing,” criminal defense attorney and criminal justice activist David Menschel said. “We should be punishing the behavior and certainly the mental state that goes along with the behavior to the extent of is it intentional or is it reckless or is it planned.”
Hard to prove
Menschel said he was not surprised so few charged assaults in Pennsylvania also included a hate crime charge given the difficulty in proving the motivation and the intraracial nature of most violent crimes.
Nearly 80 percent of all violent victimizations of blacks, and nearly 70 percent of violent victimizations of whites, between 2001 and 2005 in the state were committed by people of the same race, according the Bureau of Justice Statistics.
“If somebody commits an assault that has a racist quality to it, punish the assault,” Menschel said. “I’m not advocating for people getting away with these crimes, I just don’t see why a crime that’s the basis of your hatred of a sort of political, social, cultural group should increase the penalty as opposed to you just being a sociopath.”
Menschel said hate crime legislation can also create political battles over which groups should receive the increased protection.
He pointed to several bills in the Pennsylvania legislature that would deem any assault on police, firefighters or EMS hate crimes.
“It seems to me that people should be careful of what they wish for, because all of sudden it’s going to become a hate crime when you’re at a protest and you resist arrest. All of a sudden there’s going to be a hate crime enhancement to that,” he said. “Liberals think they want these things, because they see the world through a certain moral lens, but it’s going to end up being used by people with a different moral lens, injuring them too.”
Menschel said he does support a federal hate crime statute as a way for the federal government to provide oversight on civil rights violations.
He gave the example of the federal government being able to intervene in a case where a person is killed or injured in a bias-based incident but the local police or prosecutor choose not to pursue charges because of their own racial or ethnic biases.