The plight of America’s homeless is truly heartbreaking and has only become worse in recent years as a result of the nation’s financial crisis and the rise of home foreclosures and evictions. As someone who has been fortunate enough to have gainful employment, a roof over my head, and food on my table, I can only imagine the desolate lives of those who have lost their jobs or are unemployable, who live on the streets and seek shelter under bridges or in cardboard boxes, and whose next meal is wholly dependent on the charity of strangers. This is all the more tragic when one recognizes that the ranks of the homeless are strewn with desperate mothers and their children, people suffering from mental illnesses and addictions, and military veterans who had put their lives on the line for this nation. The happenstance that has left many people homeless underscores the proverb “there but for the grace of God go I” — and the compassion and tireless efforts of advocates for the homeless, including those in this room, confirm the essentially goodhearted nature of the American people.
Against this background, it is hard not to be flabbergasted and repulsed by the crimes of violence committed against the homeless, as described in media accounts and the recent report by the National Coalition for the Homeless (NCH).2 People doused with gasoline and set ablaze, beaten with pipes and bats, and stabbed with knives and broken bottles — all exemplifying the cruelty that man can inflict upon his fellow man. The same can be said of the brutal acts that propelled the federalization of other so‐called “hate crimes?: the murders of Matthew Sheppard in Wyoming and James Byrd, Jr. in Texas, and the attack on the National Holocaust Museum in Washington, D.C. and killing of museum security guard Stephen Johns.3
These events greatly disturbed conscientious citizens across the nation. No decent American could argue against the investigation, prosecution, conviction, and punishment of those who commit such crimes. Of course, that was never a question before this august body, nor was it a genuine issue of debate among scholars, policy analysts, and the general public. Instead, the problems concerned the alleged necessity, the potential consequences, and the ultimate constitutionality of the Hate Crimes Prevention Act (HCPA). On these points, I believe the law’s opponents had, and still have, the better arguments.
The HCPA is not directly at issue today. Instead, the hearing is premised on two identical bills, S. 1765 and H.R. 3419, which would amend a twenty‐year‐old statute to include “homeless status” as a protected class for purposes of federal law enforcement’s tracking of hate crimes across the nation.4 As a general matter, I have no objections to these bills in and of themselves. In fact, I strongly encourage the gathering and dissemination of statistical data and other relevant information as a means to enlighten policy judgments on criminal justice. If anything, the bills do not go far enough to ensure full and accurate information about the commission of and response to crimes motivated by legislatively identified animus or bias — a point that I will return to at the close of my testimony.
Before then, however, I would like to discuss two issues: (1) the collection of hate crime statistics, including hate crimes against the homeless; and (2) the justification for federalizing hate crimes, including those against the homeless. The first issue goes to the heart of the bills under consideration by federal lawmakers and is a problem with hate crime statistics in general. The second issue, though not directly before Congress, looms over this entire hearing.
1. THE HATE CRIME STATISTICS ACT AND CRIMES AGAINST THE HOMELESS
Enacted in 1990, the Hate Crime Statistics Act directs the U.S. Attorney General to acquire data “about crimes that manifest evidence of prejudice based on race, religion, sexual orientation, or ethnicity.” It also requires that the Attorney General “establish guidelines for the collection of such data including the necessary evidence and criteria that must be present for a finding of manifest prejudice and procedures for carrying out the purposes” of the law.5 The Attorney General subsequently delegated these responsibilities to the Director of the F.B.I., who then tasked the Uniform Crime Reporting (UCR) Program with the duty of establishing the necessary guidelines and procedures for collecting hate crime data.
The UCR guidelines describe a hate crime as a “criminal offense committed against a person or property which is motivated, in whole or in part, by the offender’s bias.“6 In turn, bias is defined as a “preformed negative opinion or attitude toward a group of persons based on their race, religion, disability, sexual orientation, or ethnicity/national origin.” The guidelines then provide a series of criteria that might support a finding of bias. Some of the listed items seem commonsensical, like the presence of bias‐related markings at the scene of the crime (e.g., a swastika painted on the door of a synagogue). Others are less obvious or might raise serious legal questions if used at trial, such as whether a “substantial portion of the community where the crime occurred perceived that the incident was motivated by bias.“7 It is hard to imagine the evidentiary basis (let alone constitutional argument) for admitting testimony or documents about popular sentiment in order to prove that a crime has been committed.
The guidelines also provide vignettes intended to demonstrate the appropriate classification of hate crimes. One example involved a white male attacking a Japanese‐American male, who suffered severe lacerations and a broken arm:
The incident took place in a parking lot next to a bar. Investigation revealed that the offender and victim had previously exchanged racial insults in the bar, the offender having initiated
the exchange by calling the victim by a well‐known and recognized epithet used against the Japanese and complaining that the Japanese were taking away jobs from Americans. An Anti‐Asian/Pacific Islander [hate crime] would be reported based on the difference in race of the victim and offender, the exchange of racial insults, and the absence of other reasons for the attack.8
This vignette raises several constitutional issues if it involved an actual hate crime prosecution — whether the white male is being punished on account of his speech or thoughts, for instance, and whether the race‐based elements of the prosecution violate equal protection. It also raises questions of policy and practice: Does the existence of a hate crime depend on who made the first racial insult or whose slur was more notorious” Might it hinge on who won the fight?
But consistent with the congressional mandate, the UCR guidelines make clear that their purpose is for data collection only. “Hate crimes are not separate, distinct crimes, but rather traditional offenses motivated by the offender’s bias.“9 Moreover, the guidelines acknowledge the inherent difficulty in determining whether an offense should count as a hate crime:
Because motivation is subjective, it is difficult to know with certainty whether a crime was the result of the offender’s bias. Therefore, before an incident can be reported as a hate crime, sufficient objective facts must be present to lead a reasonable and prudent person to conclude that the offender’s actions were motivated, in whole or in part, by bias.10
The guidelines also offer a number of cautions — the need for case‐by‐case assessment of the facts, the potential for misleading or even feigned facts, the possibility of mistaken perceptions, and the reality that subsequent findings may undercut an initial classification.11 All told, the guidelines attempt to provide some type of standards for data collection and a basis for subsequent scrutiny of this information.
None of this necessarily guarantees accurate classification. Offenders have all sorts of motivations, conscious and unconscious, including cynical beliefs about those who are in some way different from themselves. When hate crimes turn on one‐word slurs or non‐verbal expressions, the classifier is placed in the position of guesstimating the level of bias in the sometimes murky, often adrenalin‐filled circumstances of a criminal episode. Moreover, the standard of proof vaguely resembles “probable cause” — the amount of evidence needed to conduct a search and seizure, for instance12 — rather than the constitutionally mandated standard for conviction at trial. But again, this is of no constitutional moment when the goal is to categorize data rather than condemn defendants. Moreover, the inherent limitations of these statistics are (or should be) understood and acknowledged by policymakers; and as long as errors in classification are random, the data provided under the Hate Crime Statistics Act might still give a reasonable overall picture with all caveats attached.
A far larger problem lies with the statistics provided by advocacy groups, who use disparate or loose standards, or no real standards at all, in the gathering and presentation of data. Policymakers often cite these statistics, and sometimes officials act in reliance upon this information without meaningful scrutiny.13 Among others, the U.S. Justice Department’s Bureau of Justice Assistance has recognized the “widespread disparities between the hate crime data provided by public interest groups,” calling upon government actors and private groups to work together on a “standard definition and reporting protocol for hate crimes.“14 To my knowledge, no such accord has been reached, and to be blunt, integrity and consistency in empirical claims have not been a strong suit for some advocates and scholars, who can claim that hate crimes are either an “epidemic” or “rare” depending on the demands of their audience.15
For instance, when federal statistics showed a decline in hate crimes, some of the groups that had campaigned for the Hate Crime Statistics Act suddenly denounced the federal data collection scheme. Others resorted to anecdotalism or simply proclaimed that hate crimes were on the rise. As for the statistics that advocacy groups provide, some groups count all incidents as “hate crimes” — even if they do not amount to a criminal offense or only involve bias‐motivated comments, and regardless of the source of information.16 Unfortunately, some of these problems appear to exist in the NCH’s reports on hate crimes against the homeless.17 Although its documents are well intentioned and laudable in many parts, the NCH repeatedly conflates two potentially overlapping but importantly distinct concepts: crimes against the homeless and hate crimes against the homeless.
For instance, the NCH’s most recent report contains a table for the years 1999–2009, listing in one column FBI Defined Hate Crime Homicides and in the other column Fatal Attacks on Homeless Individuals.18 According to the report, “The table shows that over the past eleven years, there are more than double the amount of homeless hate crime deaths than there are for all
current protected people.“19 The table shows no such thing, however, but instead compares homicides motivated by racial bias, religious bias, etc., versus fatal attacks on homeless individuals, which may or may not have been motivated by homeless status and, in fact, may or may not have been homicides at all. The NCH report includes the following accounts of what it apparently believes to be homeless hate crime deaths:
The body of Ora James Light, a fifty‐one year‐old homeless man, was found under Interstate 4. Light’s abandoned body was found with multiple stab wounds. An eighteen year‐old male, Tyler Sturdivant, originally denied any connection to Light but later admitted that he killed Light in self‐defense.
Anthony Chatteron, forty, was killed by three men after a verbal argument. Chatteron believed that the men had stolen from him. Chatteron died at the scene after suffering from trauma to his upper body. The men fled the scene and took off in a car with a female driver. The police have not identified the suspects.
Allan McKibben was a homeless man in a wheelchair. He was found dead by a train station, without his prosthetic leg. His face had been scratched and his tongue was severely bitten. Besides that, McKibben also had injuries to his collarbone and spine. Advocates believe that the circumstances of McKibben’s death indicate foul play; however, officials believe that some of his injuries may have been sustained before his death.
Seventeen year‐old Carlos Molina‐Alvarez is charged with first‐degree murder in the killing of a homeless man after repeatedly hitting him with a rock. The homeless man, Karl Chilcoat, fifty‐two, suffered a crushed skull from the multiple blows from the heavy object. The attack seems to be unprovoked. Alvarez will stand trial as an adult.
Los Angeles police are investigating the suspicious death of a homeless man who was found with burns marks on his upper body and face. Investigators are trying to determine whether the man suffered the burns before or after his death. Locals say the homeless man was a frequent resident of the area.
While sleeping in a tent, Edward Matthews, forty‐six, was fatally shot in the head. It is thought that the perpetrator may be the same individual who shot another homeless man, sixty, in the mouth eight months earlier. Both attacks appeared unprovoked and occurred in the early morning hours.20
These stories have two things in common: (1) they are extremely sad, and (2) they contain no facts indicating that the incidents were motivated by bias against the homeless. In four of the incidents, no charges were filed, let alone suspects apprehended. The other two incidents had not resulted in convictions, and assuming the cases do go to trial, at least one is likely to involve a claim of self‐defense. To be clear, the authors of the report may have additional information — maybe suspects have been apprehended in all of the incidents, maybe the two charged defendants have been convicted, and maybe there is evidence that would lead a reasonable and prudent person to conclude that the actions were motivated, in whole or in part, by bias. But this information is not contained in the report.
Moreover, many of the incidents listed in the report (both lethal and non‐lethal) are loaded with speculation or acknowledgements that the facts and motives remain unclear:
- “The attack seemed unprovoked, according to police.”
- “The motive behind the attacks remains unknown, but police presumed that the violence was directly related to the victims’ homelessness.”
- “The attack seems to be unprovoked.”
- “There does not seem to be a clear purpose for the attacks besides his housing status, as his possession were not taken.”
- “Police are continuing to investigate the motive behind [the victim’s] stabbing spree. The only immediate connection between the victims appears to be their homelessness.”
- “Both attacks appeared unprovoked and occurred in the early morning hours.”
- “Police say the young men intended to rob the homeless man who seemed like an easy target.”
- “The motive remains vague, and the relation between the male attackers and the homeless man is unknown. It is believed that there was a prejudice against the homeless man because of his social position.”
- “The motive and exact purpose of the beatings remains unknown.”
- “The seemingly unprovoked attack on the homeless has peaked the attention of local law enforcement as this type of activity has been on the rise.”
- “The precise motive behind the attack remains unclear yet police believe that the attack was unprovoked and premeditated.”
- “A homeless couple was ambushed by an unknown aggressor behind a building downtownâ€¦ Officers are unsure whether the couple was intoxicated or in shock, as they were both incoherent upon arrival of the police. Investigators are unsure [of] the motivation behind the attack.“21
In one incident listed as a non‐lethal attack, the victim himself said, “I don’t think this guy did this to me because I’m homeless,“22 undermining the episode’s classification as a hate crime. Again, the authors of the report may have additional information that goes beyond speculation and demonstrates that the incidents were not only crimes, but crimes motivated by bias against the homeless. But the report itself is short on such information.
The NCH report might also lead the reader to wonder exactly what behaviors the authors believe to be criminal or should be criminalized. For instance, the report lists the following incident under the category of “non‐lethal beatings?: