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By Jill K. Sanders, Esq.

Hate crimes are frequently talked about in the news. And in some cases, bias intent coupled with violence has led to serious injuries or even death. Such hate crimes are punished more harshly under federal and state law. Here, we explain the laws and the penalties for these offenses.

What Is a Hate Crime?

The federal government outlawed hate crimes with the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009. This law criminalizes willfully causing bodily injury, or attempting to do so, with a weapon when the crime was committed because of race, color, religion, national origin of any person. It also criminalizes such acts committed because of gender, gender identity, sexual orientation, or disability of any person if the acts affect interstate or foreign commerce or occurred within a federal jurisdiction.

In the state of New York, hate crimes are outlawed by Penal Law Article 485. A crime becomes a hate crime if a victim is selected as a target because of race, color, national origin, ancestry, gender, religion, religious practice, age, disability, or sexual orientation. Whether the belief or perception of that person’s protected characteristic is correct or not does not matter. For example, if a perpetrator believes their victim to be Jewish and assaults them because of their religion, but the victim is actually not Jewish, this could still be punished as a hate crime.

Why Punish Hate Crimes Differently?

When a bias crime is committed, it is not just the victim who is affected. That victim’s community may also feel victimized. And the community may feel they are at risk for further violence. Hate crimes can also lead to reprisals, and future violence against the perpetrator’s community may occur. Because the impact of the crime is not just felt by the individual victim, it’s important for the law to recognize the significance of these crimes. Thus legislators have created laws punishing these crimes more severely.

Under federal law, committing a hate crime can result a sentence of 10 years, or in some cases a life sentence. When such crimes are prosecuted under New York law, the penalty is enhanced and the offense will be charged as the next highest class of crime. For example, an E felony assault, which is an assault resulting in serious physical injury, can be punished as a D felony if the assault is committed with bias intent.

What About Free Speech?

The First Amendment to the United States Constitution does, to some extent, protect hateful speech. Just using bias language without placing anyone in reasonable fear of harm is not a crime.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

~First Amendment

Thus an enumerated offense must first take place. And if that offense is committed with bias intent, it is not the speech that is being prosecuted. The speech merely is a factor which enables a sentence enhancement for the criminal conduct.

Yet at least one hate crime law in New York, Aggravated Harassment in the First Degree (Penal Law § 240.31(3)), may run afoul of the First Amendment. This law criminalizes harassment with bias intent by “plac[ing] a swastika … on any building or other real property” without permission. Legal scholars have opined that this law, which criminalizes speech based not only on its content but also because of that speech’s specific viewpoint, may be unconstitutional.

Are Hate Crimes Now Occurring More Frequently?

According to NYPD statistics, bias crimes in New York City in 2019 are up 67 percent, with 145 incidents reported as of May of this year. This is despite the fact that overall, the number of major crimes – such as murder, rape, and robbery – have decreased this year.

Of that subset of bias crimes, anti-Semitic crimes have increased by 82 percent. And crimes directed at sexual orientation increased 45 percent, while anti-black crimes rose 50 percent. There was also a reported 450 percent increase in anti-white crimes during the same period of time.

References

• Penal Law Article 485
• Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009, 18 U.S.C. § 249
• Penal Law § 240.31(3)
• Andrew Wenzel, “Prosecution for posting Nazi-themed flyers may violate First Amendment,” New York Law Journal (Jan. 10, 2019). Available at: https://www.law.com/newyorklawjournal/2019/01/10/prosecution-for-posting-nazi-themed-flyers-may-violate-first-amendment/ (last accessed July 24, 2019).
• Stephanie Pagones and Natalie Musumeci, “Hate crimes skyrocket in NYC as overall crime drops: NYPD,” New York Post (May 2, 2019). Available at: https://nypost.com/2019/05/02/hate-crimes-skyrocket-in-nyc-as-overall-crime-drops-nypd/ (last accessed July 24, 2019).