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 emember
when the national media discovered Texas during last year's presidential
race? One item frequently
discussed was
that a proposed "hate-crimes" measure, named after the
1998 victim of a gruesome dragging death in Jasper, failed to clear
the Texas legislature in 1999. The collapse of the James Byrd Jr.
Hate Crimes Act became an issue in the Bush vs. Gore campaign, with
the NAACP unleashing a particularly infamous campaign spot on the
topic.
The Texas legislature
is in session again and the hate-crimes bill has been refiled. Pressure
from the Democratic party, civil-rights groups, and the media has
been relentless. The bill's senate sponsor, for instance, has repeatedly
denounced opponents as being afraid to offend "ultra right-wing
homophobics."
Under attack,
a minority of Republican legislators decided to join a unanimous
block of Democrats in letting the bill move forward. Gov. Rick Perry,
perhaps bowing to the inevitable, has indicated that he is likely
to sign the legislation.
So: Since the
national media can be expected to revisit the topic of hate crimes
in Texas, now is a good time to address a few common media misconceptions.
First, despite
what you may have heard, Texas already has a hate-crimes law. In
fact, it has been on the books for the eight years. It can be found
in the Texas Code of Criminal Procedure, Art. 42.014; it reads:
"In
the punishment phase of the trial of an offense under the Penal
Code, if the court determines that the defendant intentionally
selected the victim primarily because of the defendant's bias
or prejudice against a group, the court shall make an affirmative
finding of that fact and enter the affirmative finding in the
judgment of that case."
Those are found
to have committed a hate crime face enhanced penalties, per the
Texas Penal Code, § 12.47:
"If
the judge or jury, whichever assesses punishment in the case,
makes an affirmative finding … in the punishment phase of
the trial of an offense other than a first degree felony or a
Class A misdemeanor, the punishment for the offense is increased
to the punishment prescribed for the next highest category of
offense. If the offense is a Class A misdemeanor, the minimum
term of confinement for the offense is increased to 180 days."
So, we already
have a law. It already enhances penalties. Oh, but doesn't the existing
law exclude homosexuals? Wrong again. The current Texas statute
contains language targeting "bias or prejudice against a group."
This open language not only covers gay-bashing offenses — it has
been successfully used to prosecute them. In fact, a defendant who
had assaulted a man whom he believed to be a homosexual attempted
one of the three unsuccessful legal challenges made to the current
law, all filed in Texas courts.
All three of
these challenges attacked the existing law as being too vague regarding
what constitutes an offense subject to enhanced penalties. And all
three challenges failed.
Robert Kepple,
General Counsel for the Texas District and County Attorney's Association,
testified in front of our senate's committee on criminal justice
on May 2 and attempted to settle just this question. "In my
opinion, the statute, as applied in its normal context, is constitutional,"
stated Kepple.
Despite affirmation
from both the courts and prosecutors, the oft-repeated claim of
unconstitutional "vagueness" is driving the push to revamp
the existing law. Supporters of the Byrd Act want to insert language
that contains a listing of specific groups to be protected. What
groups should be included, excluded, or whether specific groups
should be named at all, is what this fight is really all about.
As for prosecutors,
according to Kepple, it makes no difference whether the groups are
listed or left open. "The broad statute covers what I believe
to be the core elements in the hate crimes group," Kepple testified.
If the legislature
wanted to list groups, it could do so. Or, it could append a list
to the existing open language. This would continue to allow the
law to be stretched to cover crimes directed at other groups, such
as gang-on-gang violence.
Kepple also
refuted assertions that a fear of "constitutional issues"
was the reason that existing law was invoked so rarely in relation
to what seemed a much larger volume of reported hate crimes. "I
think the reason that it hasn't been used is because oftentimes
the facts aren't there, and the cases aren't there, sufficient to
prove the elements," Kepple said.
He noted that
18 so-called hate crimes had been reported in 1999 by the Austin
Police Department. Of these, only one had met the criteria of having
an actual crime committed, a suspect identified, a victim willing
to prosecute, and enough evidence on hand to support a hate-crimes
conviction.
So what about
all those other reported hate crimes?
"The vast
majority were instances of graffiti or damage with no defendants.
There were some that were not even offenses. They were verbal things
said in a bad manner, untoward speech — but not a criminal offense,"
Kepple explained. "So we have lots of reports of hate behavior,
or hate crimes, but oftentimes the evidence is not there to take
it all the way to court and make a case."
This would
remain the case under both the old law's open definition and the
enumerated definition proposed by the new law.
So, in the
end, Texas could go from a state that attempts to protect everybody
to one that establishes a list of hate-crimes haves and have-nots.
Then, once a list of protected groups is established, others will
likely clamor for inclusion and the officially listed may soon start
to grow.
One state senator
opposed to adopting specific groups found that other states had
recently discovered several new categories in need of special protection.
The newly sheltered included: Marital status, matriculation, pro-choice
or pro-life, union-membership status, political affiliation, family
responsibility, and even personal appearance.
As for how
a group wins this protected status, here is an insight on the deliberative
process. A senator at the same May 2 committee meeting was earnestly
courting the vote of a reluctant colleague on the hate-crimes bill.
"If you want to add a couple of groups, we can add them,"
he offered. The important thing, he stressed, was that Texas needed
this new law to "send a message."
In response,
an observer in the back of the hearing room suggested that renting
a billboard might be more appropriate.
When the bill
hit our senate floor on May 7, there was an attempt to preserve
a version of the open-group language. It was beaten back by a 12-17
vote. The bill then achieved final passage on a 20-10 vote.
Opponents of
the new law remain concerned that it will lead to unequal protection
under the law. Are these worries are justified? I invite you to
judge for yourself. Here is a quote from a state senator at the
press conference held after the Byrd Act cleared his chamber:
"We're
saying to all Texans — especially those groups enumerated — that
your government cares."
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