Weekly Wire
Austin Chronicle Hate Crimes and Punishment

By Janet Heimlich

SEPTEMBER 14, 1998:  The vicious murder of James Byrd in Jasper last June was a reminder that hate crimes in Texas are not a thing of the past. Byrd, a 49-year-old black man, was hitchhiking when he was picked up by three white men who allegedly beat Byrd, spray-painted his face, chained him to the back of their pickup truck, and dragged him for more than two miles to his death. It was later discovered that two of the three suspects were members of a white supremacist prison gang -- prison officials say one wore a tattoo of a black man hanging from a tree.

Prosecutors in the Byrd case are seeking the death penalty. By aiming to prove that the murder was committed during a second offense, that of kidnapping, they are charging all three men with capital murder. But despite the racist nature of the killing, neither suspect is being prosecuted under state or federal hate crimes laws, which aim to enhance penalties for those convicted. The federal statute does not come into play, because it only protects victims who are engaged in "protected" activities, such as exhibiting their right to free speech, or if they are in a federal facility or school. And the state law -- which can increase a penalty to that of the next highest offense -- is rarely needed for first degree felonies, such as murder, since those crimes already carry a maximum punishment of life in prison, and the law cannot be used to impose the death penalty. The case has prompted civil rights advocates and legislators in Washington to demand stricter federal laws. And in Texas -- even though the state law may not be needed in the Byrd case -- critics are using the murder to make their point that hate crimes are a serious problem, and, while there is a hate crimes law on the books, it is so weak it is unenforceable.


The father and sister of James Byrd mourn his death at a wake in Jasper.
photograph by Jana Birchum

Yet this has not stopped civil rights advocates and some legislators from using the murder to make their points known. State Senator Royce West of Dallas says he will propose a bill to allow the death penalty for those who commit hate-related murders. On the federal level, Senator Ted Kennedy has introduced legislation to reduce restrictions, among other changes.


The Gay Debate

The case has also rekindled a familiar debate in Texas over whether homosexuals should be included in the statute. State Senator Rodney Ellis of Houston, who proposed the 1993 hate crimes bill, has been at the forefront of this battle. The original bill aimed to penalize those who commit offenses against a person because of one's "race, color, disability, religion, national origin or ancestry, or sexual orientation." But after Democrats and Republicans debated whether to include the words "sexual orientation" in the bill, it was re-worded -- or rather watered down -- so that the law now defines a hate crime as an offense "motivated by bias or prejudice against a group."

As a result, Ellis says, prosecutors rarely use the law because they fear that the statute's vague language would result in a conviction being overturned on constitutional grounds. (Ellis' bill is modeled after a Wisconsin hate crimes law, which has passed constitutional muster by the U.S. Supreme Court.) Travis County District Attorney Ronnie Earle shares that concern, saying "it is entirely possible" that the law would be challenged for being "void for vagueness." Earle, as well as other prosecutors in his office and the Harris County District Attorney's Office, knew of hardly any instances when the hate crimes law has been used.

Since 1993, Ellis has been back to the legislature every session to try to pass updated versions of his bill, to no avail. But now, in light of the Jasper killing, he is optimistic that his bill has a chance in 1999. "I hope that this gives us some momentum and says to those people who have questioned whether or not you ought to have an enhancement based on hate, that we ought to send out a signal: We won't tolerate the kind of behavior that went on in Jasper," said Ellis. And he may have reason to hope. Bill Miller, a political consultant in Austin, believes the widely publicized crime "gives a real surge to hate crimes legislation. You read about the killing of gays, and as bad and tearful as that may be, it doesn't even rank up there with the kind of shock I think the Jasper situation caused in the state." Miller believes that, in the past, conservatives had a "knee-jerk reaction" when the gay issue was raised, but "the Jasper deal has created an environment where the audience is listening." Furthermore, the last time the Texas Legislature re-examined Ellis' bill, in 1995, it came close to becoming law, passing in the Senate by a wide margin and only narrowly losing in the House.

Still, others are skeptical. After all, this is Texas, where the religious right enjoys considerable power. In 1993, Texas was one of the few states to uphold its 100-plus-year-old law making sodomy a crime, a decision which most likely has Governor George Bush's blessing. (As the legislature debated the issue, Bush, who was campaigning against then-Governor Ann Richards, promised to veto any bill which threatened to repeal the law, calling the statute "a symbolic gesture of traditional values.") In 1995, Rep. Warren Chisum of Pampa offered little sympathy to victims of gaybashing when, according to the Austin American-Statesman, he said they "put themselves in harm's way" because "they go to parks and pick up men, and they don't know if that someone is gay or not." And today, conservatives maintain they will oppose any bill that provides "special treatment" to people based on a "lifestyle choice." One conservative legislator's aide, who did not want to be named, said bluntly that, as long as the words "sexual orientation" are in the bill, conservatives will vote against it. "That may fly in New York and Massachusetts," said the aide, "but it ain't flyin' here."

Even legislators whose jurisdictions include Jasper seem unwilling to talk about, much less endorse, Ellis' bill. When asked for an interview for this story, Rep. Wayne Christian of Nacogdoches did not return phone calls, and Senator Drew Nixon of Carthage -- who voted against both Ellis' bill and the current statute -- stayed firm in his belief that hate crimes laws in general are a bad idea. "Whether it's a white person killing a black person or a black person killing a Hispanic person, to me, that's really no different than two people of the same race," said Nixon. "There's still going to be a family out there who's lost a loved one. There's still going to be anger feelings."

Some civil rights advocates balk at this "a crime is a crime is a crime" reasoning. Dianne Hardy-Garcia with the Lesbian Gay Rights Lobby points out that Texas has frequently voted to enhance penalties for all kinds of crimes as a deterrent, such as attacks on police officers, children, and the elderly, as well as church burnings and the vandalizing of oil wells. "Texas legislators love to be tough on crime," says Hardy-Garcia, "and the only reason why they don't want to be tough here is because it protects gays." Texas Department of Public Safety statistics bear out claims that homosexuals are specifically targeted for hate crimes. The number of such crimes against gays and lesbians in 1995, for example, ranked second to the number of hate crimes motivated by race. Yet the statistics do little to convince some legislators to favor enhancement of the law. "I've been told to my face by Republican legislators, if they vote for this bill, the Christian Coalition says, 'They're going to take me out,'" Hardy-Garcia says.

There is, however, another side to this debate. When prosecutors were asked whether they would like the law changed, most said no. In fact, they prefer the "bias or prejudice" definition over naming specific victims groups. Mike Anderson, Assistant District Attorney with the Harris County D.A.'s Organized Crime Division, calls it the "the brilliant part of the statute, the smartest thing they ever did. If you make a laundry list, you're going to leave somebody out, which completely flies in the face of the entire basis of the hate crimes statute." Robert Kepple, general counsel for the Texas District and County Attorneys Association, agrees. Changing the law, he says, would mean "you've actually taken away a tool from the prosecutors to get after a different problem like the gang problem." Ellis discounts such arguments, pointing out that none have actually used the law. "With all due respect to them," said Ellis, "they just may not be experts on the constitutional issue."


Law Not Needed?

So if prosecutors like the law the way it is, why don't they use it more often? Several reasons. For one thing, most prosecutors simply feel that the law is not really needed. The state already has some of the country's toughest laws, with broad ranges of penalties to take into account all kinds of circumstances including motives of hate, says Kepple, who also points out that state laws already have built-in penalty enhancements for crimes that could be considered to be motivated by hate. Take, for example, the state's graffiti law. Normally, that crime carries a punishment of no more than 180 days in jail, but if someone vandalizes a place of worship -- such as spray painting a swastika on a synagogue -- that punishment gets bumped up to a maximum of two years in jail. (While explaining this, however, Kepple realized that the hate crimes law could further enhance that penalty, making that crime a third degree felony punishable by up to 10 years in prison.)


Byrd's family members at Greater New Bethel Baptist Church in Jasper.
photograph by Jana Birchum

Also, prosecutors say, hate is difficult to prove. For example, one pointed out, it's not often that someone attacking a member of a minority is heard uttering a racist epithet. But also, prosecutors may not know about some of the law's more subtle applications. Most of those questioned, for example, believed that the law could not be used at all in first degree felonies or Class A misdemeanors, but Keppel says that it can be used to deny probation to first degree felons or to give jail time to those who commit Class A misdemeanors for the first time, a crime which normally carries no jail time.

The bottom line question is this: Are Texas hate criminals getting away with murder? According to prosecutors, absolutely not. They say that, with or without a specific law, nothing incites a jury more than a good hate crime case. "You can take a jury of people that are as diverse as you can imagine, put them on a hate crimes jury, and they become one," said Anderson. So prosecutors say they are quick to produce evidence of hate whenever possible, which can be instrumental in winning a conviction, stiffening a sentence, or intimidating defendants' lawyers into cutting deals that favor the prosecution.


The Civil Route

The state does have another (albeit less dramatic) remedy to go after hate criminals -- civil court. Since 1992, the Texas Commission on Human Rights has filed four lawsuits against white supremacist groups and individuals who commit civil violations, says Bill Hale, the commission's executive director. Recently, the commission won a suit against a white Plano woman for $55,000 after she threatened a Hispanic family about to move in next door to her. (Hale says the woman sent messages to the family, saying she would "blow up the wife and children and splatter them all over the garage door" if they moved in.) Hale says that, given the difficulty of proving hate in a criminal trial, making such offenders go broke is a good alternative. "I tell the FBI, 'You put 'em in jail, and I'll take their money.'" He adds that civil court offers another advantage over criminal proceedings -- a lower standard to prove guilt. Instead of having to prove guilt beyond a reasonable doubt, he says, civil attorneys need only prove that a "reasonable person" viewing the evidence would have more reason than not to believe the person is guilty of a violation.

But here, state laws do seem to fall short. The commission is only authorized to sue those who violate fair housing and employment discrimination laws. So Hale has had to get creative, relying on the state's Fair Housing Act. (He has not used the employment discrimination law because he says it is too narrow.) Last year, Hale used the FHA to sue two factions of the Ku Klux Klan after they tried to intimidate African-Americans who had moved into a recently integrated public housing project in Vidor. (Klan members rode around the project in hoods brandishing shotguns.) After it was proven that the white supremacists were, in essence, "denying the tenants their right to fair housing," both Klan leaders agreed to injunctions. Neither had to pay money up front, but one agreed to pay $10,000 for every future fair housing violation by a Klan member on a public or private residence anywhere in the state. Hale would welcome a law that allows his commission to sue hate criminals where housing is not a factor.


Local Endeavors

There are also positive changes on the local level. As of last April, for example, the Houston Police Department enhanced its hate crimes training policy to give "the highest investigative priority possible to ensure rapid apprehension of all persons involved." (Incidentally, HPD defines a hate crime as an offense motivated by bias against a victim's "race, religion, ethnic/national origin, gender, age, disability, or sexual orientation.") Today, officers take to the streets with wallet-sized "Hate Crime Tip" cards and hold community forums, and there is a "hate crime hotline" for people to call to report such crimes. If increased reporting is a sign that such programs are working, then HPD -- as well as departments in Dallas and Ft. Worth, which have similar programs -- can boast success. In 1996 and 1997, Houston reported a total of 65 hate crimes, while Dallas and Ft. Worth reported 110 and 68, respectively. San Antonio, on the other hand -- which has been criticized by civil rights advocates for not prioritizing hate crimes -- reported only four.

But we still have a long way to go, according to state Rep. Scott Hochberg of Houston, who co-sponsored Ellis' bill in the House and convinced Houston Mayor Lee Brown to beef up the police training program. "One of the common complaints we hear around the country from hate crime enforcement advocates is that they just can't get local authorities to pay attention to them and to take it seriously," Hochberg says. "It's kind of like where domestic violence was a number of years ago, where people kind of swept it under the rug and said 'We don't talk about that here.' Well, we need to talk about that here because it's happening here."


Preparing for Battle

For his part, Rodney Ellis is getting ready to propose an expanded version of his bill. Modeled after the federal initiative, it would include protections for the disabled and possibly victims of gender-related crimes. And Bill Hale says the Texas Commission on Human Rights is willing to provide resources to help legislators design a bill that would allow his agency more authority to sue hate criminals. It's questionable just how useful the legislature will be, since tough laws are already in place to punish the guilty. Still, that does not mean that Texas could not use some laws to help at the front end, such as instituting police training policies, or in civil matters. But, so far, legislators have allowed another issue to get in the way -- the issue of homosexuality -- instead of passing useful legislation that just might have been helping to save lives. And this cannot bring much solace to the family of James Byrd.


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