In the latest act of violence against Asian Americans, a 38-year-old man was charged with hate crimes in New York City on Wednesday after he was captured on video stomping an elderly Filipino immigrant he encountered on a Manhattan street, a random attack that sent the victim to the hospital with a fractured pelvis.
Given the depraved nature of the assault, and the blatant bigotry displayed by the suspect, the charges were more than warranted. But the incident served to underscore just how brazen an act needs to be before prosecutors file hate crime charges, something that is as true in Massachusetts as it is in New York.
Now, with the surge in violence against Asian Americans, Massachusetts is among the states considering whether it needs to toughen its hate crime laws. Obviously, prosecuting bias-related crimes after the fact is no substitute for addressing the root causes of racist violence. But making it a bit easier to prosecute hate crimes as such would help send a strong message that hate has no place in our communities.
In Massachusetts, where 376 hate incidents were reported in 2019, there’s an effort afoot in the Legislature to reform the state’s two hate crime statutes. State Representative Tram Nguyen, state Senator Adam Hinds, and Attorney General Maura Healey have filed a bill that would rework the two sections in Massachusetts law that address bias-related crime.
The bill combines the two hate crime statutes into one, clarifies what kind of behavior constitutes a hate crime, and restructures penalties. It also expands the law’s scope to include immigration status and gender as two additional characteristics to be protected in addition to a person’s race, color, religion, national origin, ethnicity, disability, gender identity, and sexual orientation.
To be clear, everything that can be prosecuted as a hate crime is also a regular crime. The question is when prosecutors can seek stiffer punishments.
To better understand the gaps in the current statutes, consider the following hypothetical scenario: Say two people are involved in a road-rage incident and one of them is a Black driver; both end up stopping their cars and a heated argument ensues, which includes racial slurs against the Black driver. The other driver returns to their vehicle and runs over the Black driver, causing a non-life-threatening injury like a broken leg.
That’s the kind of case that causes a lot of confusion in the courts, according to Healey’s office. Even if it’s charged as a hate crime, prosecutors or judges might conclude that while the perpetrator used racial slurs, the incident started as an argument over driving and thus wasn’t entirely about race. What ends up happening, according to Healey’s office, is that the perpetrator is just charged with assault, and the hate crime aspect in the incident is too often dismissed or unaddressed as the case makes its way through the criminal justice system.
“Right now, you have to show that the perpetrator is mainly motivated by the victim’s protected class,” said Nguyen in an interview. “When people commit crimes, there are many factors. The bill we filed would make it clear that [hostile] conduct against a person based on a protected class does not need to be the predominant or sole reason” for a crime. It is not sufficiently clear in existing law what behavior qualifies or what role religion, race, color, or other protected class should play in the offense.
“Based on our work, we know that our laws do not meet the moment,” Healey said at a virtual forum to discuss the legislation earlier this week.
Another issue with existing Massachusetts hate crime statutes is that they don’t include enhanced penalties for repeat offenders. Furthermore, those convicted of a hate crime are supposed to complete a diversity-awareness program, per current law, but that program was never established, according to Healey’s office. Crucially, the new proposal differentiates between various crimes and sets punishments according to the severity, while providing judges with sentencing discretion (and without creating new mandatory minimum sentences).
Ultimately, it’s clear that overhauling the state’s hate crime laws is not a silver bullet against bigotry. “This is not the be-all and end-all,” said Nguyen. “This isn’t the only tool to address hate and violence.” She said other tools include better education for K-12 students to “learn diverse and inclusive curriculum that’s intentionally designed to avoid perpetuating gender, cultural, ethnic, or racial stereotypes.”
Still, amid a spike in violence against Asian Americans that is terrorizing a whole community, lawmakers would certainly be sending a powerful counter-message against hate if they pass this bill. As Nguyen put it, “That’s how we communicate to communities that we see them and that these crimes are unacceptable.”
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