Louisiana's Designation of Anti-Police Bias as a Hate Crime Category Commentary
Louisiana's Designation of Anti-Police Bias as a Hate Crime Category
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JURIST Guest Columnist James B. Jacobs of New York University School of Law discusses the recent changes to hate crimes in Louisiana…

Federal and state hate crime laws enhance criminal punishment for offenders motivated by certain widely condemned biases, the kinds of biases that are the target of laws prohibiting discrimination in employment, housing and education. But while those anti-discrimination laws involve discrimination by government officials and private actors who control access to jobs, housing and education, the hate crime laws involve criminal offenders’ discrimination in choice of victim. While access to government benefits, employment, housing and education is socially beneficial unless allocated discriminatorily, criminal offending is never socially beneficial. All criminal conduct is condemnable. However, hate crime law designates criminal conduct motivated, in whole or in part, by specified biases as worse, morally and/or with respect to impacts, than criminal conduct motivated by idiosyncratic reasons or by biases that are not officially marked out for special condemnation.

Hate crime laws, which emerged in the 1980s, originally prescribed (sometimes discretionary; sometimes mandatory) enhanced punishment for offenders who select their victims based upon race, ethnicity and religion. Over the years, the number of disapproved biases covered by hate crime laws proliferated to include, first gender and subsequently, depending on each state’s particular politics, biases based on age, sexual orientation, political party, veteran’s status and others. Minority groups and identity groups have seen advantage in being recognized as a victim group. Politicians have seen little, if any, moral and sometime material advantage in opposing recognition of new biases for additional punishment. Courts have interpreted the hate crime laws to apply to minority group offenders motivated by anti-white bias in their selection of victims. Over time, a great deal of criminal conduct could be prosecuted as hate crime although if the offender commits his crime silently, without crude biased epithets, the necessary bias motivation is difficult to prove.

Hate crime laws are not needed to impose sufficient punishment on offenders especially for serious felonies like murder, arson, robbery and aggravated assault. There is no lack of sufficiently severe maximum sentences for violent crime. Indeed, currently there is a broad consensus that sentences on the books and sentences as applied, are too severe, having resulted in “mass incarceration,” now widely recognized as a serious socio-political problem. Moreover, some states designate bias motive as an aggravating factor that elevates murder to aggravated murder qualifying for the death penalty. Ironically, in the name of promoting greater tolerance, certain biased offenders are made execution eligible.

Hate crime sentence enhancement could have the most impact on sentencing misdemeanors, like malicious mischief, trespassing, graffiti and simple assault, where maximum prescribed punishment is fairly lenient, although ample. But these are not the kind of offenses that animate the hate crime law movement.

Hate crime laws are predicated on imagery of vicious crimes committed by unremittingly biased sociopaths bent on terrorizing members of vulnerable groups. However, those kinds of crimes and criminals are thankfully rare. And when they do occur, they are already punishable by life imprisonment or its equivalent, or by the death penalty in some states. In practice, many individuals prosecuted on hate crime charges are juveniles and young adults who are not members of any organized hate group and whose motivations are confused. Nevertheless, the prosecutor need only prove that the offender was motivated in part by bias. Thus, the prosecutor can file a hate crime charge to strengthen her hand in plea bargaining.

Hate crime laws are meant to “send a message,” first to the advocacy groups and their memberships, that “we stand with you and deplore your victimization.” Second, there is a message for the general public—”your elected representatives deplore criminals, especially biased criminals.” Third, there is a message for would-be biased criminals—”society regards selecting victims on the basis of disapproved bias as even more deplorable than selecting victims for no reason or for reasons other than those officially condemned.”

Louisiana has a very broad hate crime statute covering specified person and property offenses if the victim is selected because of actual or perceived race, age, gender, religion, color, creed, disability, sexual orientation, national origin, or ancestry of that person or the owner or occupant of that property or because of actual or perceived membership or service in, or employment with, an organization. “Organization” includes any lawful corporation, trust, company, partnership, association, foundation or fund; any lawful group of persons, whether or not incorporated, banded together for joint action on any subject or subjects; any entity or unit of federal, state, or local government. As the italicized portions of the statute indicate, this law is already applicable to a person who selects his victim because that victim is a police officer.

A separate Louisiana statute, increases the maximum sentence for assault if the perpetrators knowingly assaults a “special victim,” defined as a victim who is disabled, elderly, law enforcement officer, correctional officer, school employee (if the offender is a student), athletic contest official, bus or cable car operator for a public transport system, emergency room personnel, healthcare professional, and child welfare and adult protective services employee, if the defendant reasonably could have known that the employee or law enforcement officer was engaged in the performance of his duties.

Thus, Louisiana already treats criminal conduct directed against police officers as warranting enhanced punishment. This is unexceptional because assaulting a police officer is regarded as an attack on government authority as well as on the individual officer. In addition, individuals who attack, or even resist, police are routinely vigorously prosecuted and severely sentenced. Louisiana’s addition of anti-police bias to its hate crime law authorizes still greater punishment capacity.

The recent addition of anti-police bias to the list of motivations covered by Louisiana’s hate crime statute was not necessary to provide for adequate sentencing authority in cases of attacks on police. It was a message from the governor and legislature that, at this moment in time when police around the country are being widely criticized for abuse of force, “we stand with the police.” On its face, there is nothing wrong with that message—police are often and rightly praised for their public service—unless, by negative implication, the message was meant to convey rejection of charges of police abuse of authority or even endorsement of such abuse. The sponsors of the law disclaim that intent, as well they should.

James B. Jacobs is the Chief Justice Warren E. Burger Professor of Law at NYU School of Law. He has written widely on hate crime law and jurisprudence, including Hate Crime: Criminal Law & Identity Politics (Oxford University Press 1998).

Suggested citation: James B. Jacobs, Louisiana’s Designation of Anti-Police Bias as a Hate Crime Category , JURIST – Forum, June 21, 2016, http://jurist.org/forum/2016/06/james-jacobs-hate-crimes.php.


This article was prepared for publication by Alix Ware, an assistant Editor for JURIST Commentary. Please direct any questions or comments to her at commentary@jurist.org

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