Saturday, January 4, 2014

GateHouse: Fighting the most chilling and sinister of crimes

Matthew T. Mangino
GateHouse News Service
January 3, 2014
"Knockout" is not a game. The criminal act of randomly punching a stranger in the jaw with the intent of knocking them unconscious is getting the attention of law enforcement agencies across the nation. A recent attack in Brooklyn resulted in the arrest of a man charged with aggravated assault as a hate crime.
The “knockout” phenomenon is only a segment of a growing trend of criminal acts motivated by prejudice or intolerance and directed toward a member of a gender, racial, religious, ethnic group and, in some states, based on the victim’s sexual orientation or gender identity.
More and more hate crimes are being prosecuted by the federal government. Many federal prosecutions grow out of necessity, not choice.
The inadequacy of Ohio’s hate crime statute is a case in point. Last month, the body of a 52-year-old disabled transgender woman, was discovered by her caregiver at an assisted living facility in Cleveland. A second transgender woman was found the next morning shot to death in a car along a Cleveland street.
"These are crimes of hate," Ed Tomba, deputy chief of the Cleveland Police Department told the Cleveland Plain Dealer.  "We acknowledge that, make no mistake about it, but as far as the law goes ... we will take these two crimes to the federal government, we will ask them to review them and see if they fall under the hate crime statute."
Ohio’s hate crime statute does not include sexual orientation or gender identity. In Ohio, local police must present the evidence of a hate crime based on sexual orientation and gender identity to the FBI and the U.S. Department of Justice, which ultimately decides whether to pursue the case in federal court.
In 2009, President Barack Obama signed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act — both sexual orientation and gender identity are specifically included in federal law. The law extended the federal hate crimes statute protecting people against violence based on sexual orientation and gender identity along with race, religion, gender, national origin and disability.
Only five states do not have a hate crime statute. Fifteen states, including Pennsylvania, Oklahoma, Mississippi, Alabama and Ohio, have failed to include sexual orientation and gender identity in their hate crime statute. Fifteen states and the District of Columbia have hate crime laws that include sexual orientation and gender identity, and the remaining 15 address only sexual orientation, according to the National Gay and Lesbian Task Force.
In Texas, which has a broad hate crime statute, local authorities have turned over a “knockout” assault to federal prosecutors. Conrad Barrett, a white man, is in federal custody after punching a 79-year-old black man and knocking him unconscious.
George Parnham, a lawyer for Barrett, said in an interview that he planned to challenge the constitutionality of the federal hate crimes statute. He told The Huffington Post it was "absolutely" inappropriate for the federal government to get involved in this case, and that this type of alleged assault should have been charged under existing Texas law.
The federal government has argued that Congress' power to pass hate crimes laws comes from the Thirteenth Amendment, which outlawed slavery.
Every federal circuit has upheld, under the Thirteenth Amendment, the constitutionality of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act.  A federal judge said in 2011, “Not only does history indicate that Congress’ conclusion was rational, but case law also identifies racially motivated violence as a badge of slavery.”
Whether it’s a racial motivated “knockout” assault or the murder of a transgender man or woman, hate crime laws are effective tools for fighting the most chilling and sinister of crimes.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner’s Toll, 2010" is due out this summer. You can reach him at and follow him on Twitter at @MatthewTMangino.
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