Ever since Democrats won control of the Legislature in 2018, progressive lawmakers, criminal justice reform advocates, and even district attorneys have teamed up to de-emphasize policing, prosecution and prison as frontline answers to social problems and minor offenses.
So it is shocking that some of these same lawmakers and prosecutors have joined with Gov. Hochul to support the dystopian-sounding Hate Crimes Modernization Act, a law that would expand the number of “hate crimes” from 66 to an eye-popping 91.
Alarmingly, the governor intends to include this legislation as part of the budget negotiations, precluding public hearings and debate. This legislation represents an unwelcome return to using the most powerful weapon in society’s arsenal against petty offenders, and does so in stealth mode.
In New York, a hate crime is one motivated by a belief, correct or not, about the victim’s identity category: “race, color, national origin, ancestry, gender, gender identity or expression, religion, religious practice, age, disability or sexual orientation.” There is no exception if the perpetrator is a member of the identity group.
Designating a particular crime as a “hate crime” raises its severity by one category, with a correspondingly higher possible sentence. The proposed law would both add this designation to many existing offenses, as well as create new hate crimes.
Most concerning are the parts of the bill that would turn misdemeanors into felonies. Making graffiti, currently a misdemeanor punishable by a year in jail, would become a felony carrying prison time of one and a third to four years in prison when its content targets any of the “identity” categories.
To take a timely example, there is serious a debate over whether the phrase “From the river to the sea, Palestine will be free” is a call for the genocide of Jews, or for a single, democratic Palestinian state without a religious identity. Similarly, opposition to the policies (or even existence) of the state of Israel should remain, expressed through spray paint, should not become a felony based on the viewpoint expressed. These expressions should remain misdemeanors. This would raise grave First Amendment concerns.
One of the new hate crimes that would be created by this legislation would single out three, and only three, “hateful symbols” for felony criminalization. Drawing a swastika or a noose on any public property (or private property without consent) or burning a cross anywhere in public view, would be a felony carrying prison time.
But in today’s discourse, drawing a swastika is frequently a crude method of claiming the target is acting like a Nazi, not an expression of solidarity with fascism. The new law makes no such distinction. And drawing a line through the swastika to unambiguously state an anti-Nazi message would also not be exempted.
A pernicious new misdemeanor of “bias harassment,” punishable by a year in jail, would also be created. This would criminalize a person, who intending to annoy another, subjects that person to the slightest physical contact, or attempts or threatens to do so — on the basis of one of the protected identities.
Criminalizing conduct committed with the “intent to annoy” was declared unconstitutional a decade ago by New York’s highest court. And whatever its intentions, this law has the potential to sweep up large numbers of poor people and people of color simply because the wealthy and white fear them. New York does not need more people calling 911 because they thought some “undesirable” was going to touch them, or did so.
This is not an abstract concern. As with most things the criminal legal system addresses, arrests and prosecutions under current hate crime laws already skew heavily against persons of color. In 2021, the last year for which data are available, out of 469 hate crimes reports, 308 were allegations against persons of color.
Those numbers and disproportion are likely to explode under the new law, in a climate where many people of color oppose Israel’s actions and many members of the Jewish faith see dangerous antisemites behind ugly encounters around Israel.
America is continuing its long-overdue discussion of racism, albeit in a climate that seeks to shut down such discussions in places where it most needs to be had. We are also having an on-going debate about what is and what is not antisemitism. These disagreements have seldom been civil. Sometimes they spill over and cause damage to property or result in minor physical altercations. Existing laws are more than sufficient to address such injury.
Hate is, well, hateful. But criminalizing it with new broad and vague laws is not a solution.
Kuby is a New York-based criminal defense and civil rights lawyer.
