Hate Crimes Laws and the Social contract
Hate Crimes Laws & The Social Contract
Last weekend, as LGBT-rights activists gathered in D.C. for the National Equality March, news broke of a vicious gay bashing in New York City. Jack Price, a 49 year old Queens resident, was attacked while leaving a neighborhood deli-grocery. Price was pummeled until his jaw shattered, both his lungs collapsed, and every rib in his body was broken.
Price's five minute beating is captured in lurid detail by a surveillance video that quickly made its way around the web. Last Wednesday, after reading a few articles about the case during lunchhour, I suddenly found myself watching a clip of the horrific attack unfold. The first 30 seconds of tape show Price careening from one street corner to another, frantically trying to evade his attackers. Eventually, he hits the asphalt in a hail of blows— images so startling that I was moved to grief in my law school cafeteria— suddenly choking back warm tears.
In the next minute of footage, Price is seen lying in the road in the fetal position as punches and kicks continue to rain down. At one point, scene, Price's assailants are shown brazenly standing over his body as cars pass by—a scene which left me puzzling about Foucault’s theory of the panopticon and the indifference of strangers — wondering why all of "the eyes on the street" failed to keep both Jack Price & Kitty Genovese safe.
In the final minute of footage, Price is shown vainly trying to stand after his attackers retreat. Seeing him collapse over and over—eventually crawling the ten blocks home— triggered an unspeakable wave of anguish as well as a crisis of moral philosophy. After several years of carefully crafting a set of objections to hate crimes laws, suddenly, I found myself questioning if they might be of value – even when deployed in a flawed criminal justice system.
Surveying the writings of critical legal scholars reveals a profound ambivalence for our modern system of crime and punishment. Bafflement with the criminal justice system still holds with respect to "protective" legislation like hate crimes laws, where law plays the role of guardian and protector. As critical race theory explains, it is hard to seek protection in the laws when you hail from a community where overpolicing and police brutality are the fabric of daily life. Kimberlé Crenshaw orients readers to these issues in Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color. As she explains, immigrants and racial minorities who are survivors of domestic violence oftentimes (credibly) fear that availing state assistance will attract undesirable forms of state surveillance to their communities—jeopardizing immigration statuses, for example, fueling the fever-pace of arrests and incarceration—perpetuating marginalization and subordination in their home communities.
Hate crimes legislation is a unique flash point for these tensions: by using sentence enhancements as its means of condemning violence that targets racial and sexual minorities, hate crime laws strengthen the U.S. system of corrections despite its myriad flaws—e.g. disparate policing, prosecution and sentencing, the privatization and monetization of prisons, and the political disenfranchisement and social ostracization of those persons with time served.
Because of its failure to reckon with the flaws of the criminal justice system, hate crimes legislation often attracts vociferous criticism from those it is designed to protect. In recent years, I have been one such critic: well-briefed on the sociology of criminal justice, so to speak, I left my first-year Criminal Law course with seriously doubts that rehabilitation, deterrence and retributivism justified our imprecise system of crime and punishment.
Yet, watching those three, anguished minutes of video brought about a reckoning of a more personal sort—and suddenly I found myself taking solace in the notion that hate crimes law are an expressive, normative force. This fourth justification for criminal law—what I would call a Lockean theory of the law— is one that law school textbooks largely neglect. Under this so-called Lockean view of criminal law, law can be viewed as an expression of community values—forming the basis of a social contract to which we all belong—not due to coercion, but by being members of a democratic polity.
If one accepts that law can serve as an expression of community values, being named in the law, in the case of hate crimes legislation, serves an objective quite apart from administering a system of penalties and punishments. Rather, when the law takes cognizance of people like Jack Price, Lateisha Green & Angela Zapata, it can provide pure, declaratory relief—communicating (as the videotape does all too well) that a breach of the social contract occurs when violence is breathlessly directed toward racial and sexual minorities, based solely on the fact that they are different.
Update on Price: Jack Price was admitted to the hospital last Friday in guarded condition. However, this past weekend, he emerged from a coma and doctors are hopeful that he will survive his injuries.
Update on Hate Crimes Legislation: Since this writing, Congress passed a Federal Hate Crimes bill that is sexual orientation and gender identity inclusive. Ambivalent as always, the author wonders whether, like local laws, federal laws are exemplary of community values...