America's Enduring Hate Crime
“When used in a hate crime law, the word ‘hate’ does not mean rage, anger, or general dislike. In this context ‘hate’ means bias against people or groups with specific characteristics that are defined by the law.” - from the Department of Justice website.
It is well known that race can be a factor in charging a hate crime. Less known is that hate crimes also include those committed because of bias toward those with a disability, including mental illness. The DOJ gives an example of an arsonist burning down a group home to get rid of the “crazies” ruining the neighborhood.
The United States should be charged with a hate crime in the death of Jordan Neely, a Black man choked to death in a NYC subway car.
Neely, an unhoused, mentally ill, Michael Jackson impersonator was killed by ex-Marine Daniel Penny, who has been - better late than never - charged with manslaughter. Penny, too, is arguably guilty of a hate crime, although that is not among the charges.
The tragic incident has been the topic of a raging debate; on the majority side, rousing support (mostly from conservatives) for Penny as a heroic citizen, stepping in where too many fear to tread; in the minority view, an over-zealous vigilante who subdued a man who posed no immediate threat and executed him with a tactic he knew, or should have known, was lethal. Penny choked Neely for about 15 minutes, continuing to apply pressure long after Neely appeared to go limp.
Members of the “majority” argue that “it’s about time” someone stepped up to address the dismal state of the NYC subway system. Constant news reports and individual comments mention Neely’s undeniable history of legal problems, including an incident when he punched a 67 year-old woman in the face. He was a threat, they insist.
But these observations defy reason and are indicative of the racial animus that plays a role in such instances. As with so many Black men before him, Neely brought about his own death by presenting such a “danger.” Like George Floyd, who passed a counterfeit bill; or Eric Garner, who sold a cigarette; or Trayvon Martin, who looked “suspicious.” There are too many more to contemplate. As in so many of these cases, it was an alleged “threat” that drew a death sentence for Jordan Neely. He touched no one, yet Penny approached him from the back, took him to the ground, and choked him to death.
I have read no news report that mentions this crucial fact: Neely’s petty criminal history was not - could not have been - known to Daniel Penny or anyone else on that train. Even had it been known, it would not be justification for his execution. It is alarming and disappointing that the media emphasize Neely’s history, thereby perpetuating the implicit and explicit biases that contributed to his murder. “Perhaps he didn’t deserve to die, but . . .” And Daniel Penny was a white ex-Marine, a category that confers virtue, heightening the judgment that he was the hero, while Neely was the villain.
My wife and I lived in NYC for 19 years and I was a frequent subway traveler. I may have seen Jordan Neely, although it’s difficult to differentiate among the many sad young men, mostly Black, who are reduced to dancing for their suppers, as with generations of minstrels in America. It is not mere coincidence that Neely impersonated Michael Jackson, who, in admittedly more glamorous settings, sang and danced for his supper too. I don’t mean to demean Jackson’s enormous gifts, but racism and a dysfunctional childhood also led to his early death.
I watched several videos of Jordan Neely dancing. He was good - damn good. But not good enough to have enough to eat, or to dance away from the murder of his mother that seems to have haunted his life since age 14. I thought of those videos and of the image of his dead mother murdered and stuffed into a suitcase as I watched his thin legs thrash in futile resistance until the life was choked out of them.
As many have noted, the system let him down; the mental health system, the foster care system, the criminal justice system. But more than letting him down, the system pushed him down . . . and down and down, until Daniel Penny took him down for one, final, fatal time.
One less Black “crazy” man ruining the neighborhood.
The idea of a "hate crime," no matter how it's defined legally, is nearly impossible to apply to any given case and serves no useful legal purposes. It serves instead political purposes: telling society at large that our lawmakers are good people with their hearts in the right place. But costing them and us absolutely nothing and doing absolutely nothing to prevent crimes. Everything that is included under hate crime laws is already a crime under previously existing laws. There are to my knowledge no special hate crimes that, were the circumstances not deemed by a DA to included "bias against people or groups with specific characteristics that are defined by the law" (hard to be more vague than that last part, of course), would be perfectly okay and not crimes of any sort.
For example, in Minnesota in the 1980s, a cross was burned on the lawn of a black family. The perpetrator(s) were charged under the state's hate crimes statutes. In the early 1990s, the case made it to the Supreme Court, which wisely ruled that there were already laws on the books against cross burning that made charging people with "bonus" penalties because of the ethnicities of the criminals and victims unnecessary and wrong. In other words, the court didn't question that a crime had been committed, but didn't support the standard idea under hate crimes that violators should receive extra penalties (usually longer jail sentences) added on to whatever sentence received for the crime minus the issue of hate.
It's been too long since I read about that case to claim that I recall all the details (I do recall that every liberal's least favorite Supreme, Antonin Scalia, wrote an opinion for the majority with which every liberal's second least favorite, Clarence Thomas agreed. That marked the first case I remember ever agreeing with the two of them. My view in addition to their basic decision is that judging hate crimes usually requires mind-reading skills that no DA, judge, or juror possesses. It requires determining the prior state of mind of a defendant along lines which are difficult if not impossible to assess AT THE TIME OF THE CRIME. If a person shoots another person of the same ethnicity, could there be religious differences that could make the act a hate crime? If a member of the Ku Klux Klan shoots a black person, is membership in the Klan prima facie evidence that a hate crime was committed? What if the Klan member shot the other person under circumstances that made the shooting self-defense: could it still be a hate crime given the Klan member's track record of shouting "racist" epithets at people of color. Would the people have to be black, or would it suffice if they were Latin or Asian or Native American? Does having negative opinions about non-white people automatically make someone guilty of a hate crime if the victim(s) is/are non-white? How do we know the perpetrator's attitude when the crime occurs?
To me, "hate crime" is simply a well-intentioned but ultimately failed attempt to punish people more based on the ethnicity of the victim. Yet I have to wonder: would a black person be charged with a hate crime under any circumstances? There's a lot of concern in the San Francisco area about black people committing violent crimes against Asians. Crime statistics seem to support that concern. Are any of those crimes also designated as hate crimes?
All that said, I think that Perry was guilty of murder. In NY State, as I understand the law, he really couldn't have been charged with first or second degree murder. There was certainly no evidence of premeditation (which is required for a first degree murder charge). I am not sure that prosecutors could get ample evidence of intent which is necessary for a first or second degree murder charge. That really left manslaughter (3rd degree murder) as the top murder charge possible. Ethnicity doesn't enter the equation.
One could argue that if the ethnicities were reversed, prosecutors might have been willing to risk losing with a higher charge. But I still can't see "hate crime" added to the charges. In my view, hate crime charges always muddy the legal waters. And I think it's a mistake on our part to try to add such charges in our imaginations and then find prosecutors wanting for not making the same imaginative leap. Instead, I think the whole idea should be removed from the books in every state so that the legal system can attempt to actually mete out justice. Of course, hate crime laws are hardly the only flaw in the system. But they're one that can be openly fixed and in fact should be.