Saturday, January 18, 2014

The Cautionary Instruction: Pennsylvania's hate crime statute inadequate

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
January 17, 2014

In 2008, the Pennsylvania Supreme Court upheld a lower-court ruling striking down the state’s Ethnic Intimidation Act that covered hate crimes based on, among other things, sexual orientation, gender identity, and physical or mental disability. As a result, Pennsylvania is one of 15 states that exclude sexual orientation and gender identity in its definition of a hate crime.
Since then, high-profile crimes against specific groups across the state could not be prosecuted under the state’s hate-crime law. If they had been, those convicted could have received more severe sentences, reported PublicSource.
Pennsylvania is not the only state with inadequate hate crime statutes. The shortcomings of Ohio’s hate crime law have emerged in the recent attacks on gays and transgender victims in Cleveland. The law’s failure to include sexual orientation and sexual identity is amplified by the fact that Cleveland and Akron are preparing to host the 2014 Gay Games.
Ohio law broadly defines hate crimes as criminal acts motivated by prejudice or intolerance and directed toward a member of a gender, racial, religious or social group, according to the Ohio Bar Association website.
Only five states have no hate crime statute whatsoever. Fifteen states and the District of Columbia have hate-crime laws that include sexual orientation and gender identity and 15 address only sexual orientation, according to the National Gay and Lesbian Task Force.
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.
The federal statute has permitted the Department of Justice to intervene in cases that might have otherwise been prosecuted by state authorities.
In Texas, which has a broad hate crime statute, local authorities have turned over a “knockout” assault to federal prosecutors. Knockout is the criminal act of randomly punching a stranger in the jaw with the intent of knocking them unconscious. A white man in Texas is in federal custody after punching a 79-year-old black man and knocking him unconscious.
A lawyer for the man said in an interview that he planned to challenge the constitutionality of the federal hate crimes statute. The lawyer 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.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at and follow Matt on Twitter @MatthewTMangino. His book The Executioner's Toll, 2010 is due out this summer.

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