As lawmakers at the Statehouse grapple with Senate Bill 12, the hate crimes bill now before the Indiana House of Representatives, local researchers have published a study of how the other 45 states with similar laws on the books handle such cases.
The study released Monday by The Center for Research on Inclusion and Social Policy at the Indiana University Public Policy Institute found that, in practice, hate crimes laws were applied unevenly across groups.
Data from the Bias Homicide Database, created by Jeff Gruenewald, Ph.D. in Criminal Justice, at the Paul H. O’Neill School of Public and Environmental Affairs at IUPUI, was used to analyze bias homicides that occurred in the U.S. between 1990 and 2016.
For a homicide to be included in the BHDB, it must involve the felonious death of one or more persons, an identifiable offender, and indicators that the victim was selected because of their race, ethnicity, nationality, religious affiliation, sexual orientation, or gender identity.
An analysis of 317 bias homicides, 567 offenders, and 411 victims was performed to determine the extent to which bias charges are sought on behalf of protected groups.
In its report, CRISP researchers found that while bias crime charges are more likely to be filed in states with existing bias crimes statutes that specify affected victim groups, charges relating to bias are not sought in many of those cases. Even in states where victim groups had equal statutory protection, prosecutors did not seek bias charges equitably among victim groups. The majority of bias homicides did not involve official bias crime charges.
Marginalized communities are convicted of predicate crimes at higher rates, according to the study. Given that racial disparities also exist within sentencing decisions for equal crimes, there is evidence of discretion within the legal process that disproportionately—and negatively—impacts marginalized groups.
Bias charges were not filed for most of the 317 bias homicide cases that were reviewed. Nearly 70 percent of all bias homicides did not result in official bias crime charges. Less than one-third of the bias homicides analyzed were charged as bias crimes, despite the indication that the victim was likely selected because of the victim’s social status or identity.
Anti-sexual orientation/gender identity and anti-race/ethnicity accounted for a majority, 90.9 percent, of the bias homicides. Despite this, 70.1 percent of these homicides proceeded without official bias charges. Anti-sexual orientation/gender identity homicides accounted for 48.3 percent of all bias homicides. These cases represented only 35.4 percent of bias charges filed.
“There were lots of inequitable outcomes,” said Breanca Merritt, director of CRISP. “So, even where they were able to charge for hate crimes as homicides you could see differences by different groups.”
Merritt said the research showed anti-sexual orientation/gender identity and anti-race/ethnicity account for the majority of bias homicides, but disproportionately less likely than other groups to be officially prosecuted as bias crimes.
“It varies widely from state to state,” she said. “And, depending on what you put in that language it can influence the extent to which the policies can be followed properly.”
Of the nearly dozen hate crimes bills filed this year at the Statehouse, only SB 12 has received a hearing. On Feb. 18, the Public Policy Committee met in the Indiana Senate chambers and voted 9 to 1 to send SB 12 to the Senate for a vote. On Feb. 19, that version of the bill which included protected classes was radically altered by a vote of 33 to 16 after an amendment was introduced by Sen. Aaron Freeman, R-Indianapolis, which replaced that language with the word “bias.” On Feb. 21, a final 39 to 10 vote approving the stripped-down language was taken, sending it to the House for consideration.
Merritt said the inclusion of protected classes, and deciding which classes should be protected by hate crime laws, varied widely from state to state. The original language of SB 12 before was altered prior to the committee vote included public safety officers as a protected class, as well.
“There are some states that even have homeless individuals as a protected class, and so the range of victims was really wide. And, so, it's not as simple as the handful that we go back and forth with in Indiana…It can be a very broad list of categories.”
According to the report, the findings have policy implications that policymakers should consider.
First, the effectiveness of bias crime legislation should be further evaluated for impact and operation. There is scholarly debate on whether bias crimes legislation serves as a deterrent to future bias crimes.
Second, bias crimes occur more often than official crime data suggests. For this reason, collection of data is crucial to accurately understanding and preventing bias crimes. Supporters of a comprehensive hate crimes law in Indiana have lamented the exclusion of training and reporting requirements in the current version of the bill.
Merritt said this lack of consistency across states in these requirements meant that tracking how effective hate crimes laws were remained incredibly difficult.
“If you don't have a provision about data collection, it makes it very difficult to even track, 'Is this even a bias crime? Who is it affecting?' If it's not in there in that way, then it makes it difficult for someone like us to come back and see if it's doing what it's intended,” she said.
Finally, prior research affirms greater negative consequences for victims of crimes motivated by bias. Despite this research, statutes typically do not include a support system for victims or witnesses of bias crimes.
Merritt said the study indicates hate crimes laws are less effective when those who deal with victims are not trained properly.
“I give the example of sexual assault,” she said. “The onus is usually on the victim to come forward, and it's also the responsibility of the law enforcement personnel to recognize that this is a sexual assault. And, so, it's similar with bias crimes. The person can come forward, but if the personnel aren't trained to recognize some of the key indicators that it might be a bias-related crime, then it complicates the decision to pursue it as a bias crime.”
A more in-depth version of the brief will be posted to the Public Policy Institute’s website by the end of the month.