Indiana Forward, a sizable coalition of influential organizations for “a clear, specific and inclusive hate crimes law,” led and activated a public campaign to back the bill, including “the state’s most prominent business, education, civic, and interfaith leaders.” After three long hours of impassioned testimony at the microphoned podium, the committee voted 9-1 to pass the bill to a second reading on the chamber floor, a small victory for the coalition and community members for the legislation.

But the bill that cleared this major hurdle was gutted by a GOP-backed amendment, removing protected classes from the statute and replacing the language to instead allow courts to consider undefined bias motivation as an aggravating factor when determining sentencing for an already existing crime in the code. In little more than a single day, Republican leadership upended the triumphant trajectory of the bias crimes bill. A political circus, indeed.

The Democratic caucus left the Senate floor in protest of the amended bill, passed by a large margin mostly along party lines, a precedented conservative move courtesy of former Senator Delph last year. Public devastation was immediate and overwhelming. ​Indiana Forward sent out a statement by email:

​The ADL’s National Counter-Terrorism Seminar has engaged over 200+ U.S. law enforcement representatives alongside Israeli military officials since the program’s inception in 2004, in the wake of September 11th. The objectives of the program cannot be politically separated from the Israeli treatment of Palestinians. The training reifies an increasingly militarized police force deeply contrasted with further disenfranchised civilians, a growing divide fueling the Israeli occupation in Gaza and reflected in police-community relations in the U.S. and globally.

State police response to Ferguson and Baltimore-based direct actions against police brutality were eerily similar to the surveillance, violent crackdowns, and border patrolling at regular checkpoints in Gaza. So much so, Palestinian activists shared strategies such as tear gas prevention and treatment tips, with leaders on the ground in the U.S. through Twitter. The ADL is at the nexus of hate crime legislation in the U.S. and directly invested in militarizing law enforcement, an institution seeking to co-opt and abuse those statutes to avoid public scrutiny and accountability for unjust policing.

Is Criticism of Israel Anti-Semitic?

​The ADL is clear in its written position on what constitutes anti-Semitism, legitimizes some anti-Israel activity, and differentiates anti-Zionism as its own category of discrimination.

​Anti-Israel activity crosses the line to anti-Semitism when:

• All Jews are held responsible for the actions of Israel.
• Israel is denied the right to exist as a Jewish state and equal member of the global community.
• Traditional anti-Semitic symbols, images or theories are used.

indiana 
Indiana once had a hate crimes law, but it quietly disappeared x Tony Cook @ IndyStar

abolitionism 
Against Equality: Prisons Will Not Protect You // Introduction: Their Laws Will Never Make Us Safer x Dean Spade
​
Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law x Dean Spade

hate is a social construction
Reconsidering Hate: Policy and Politics at the Intersection x Kay Whitlock

American Friends Service Committee: In a Time of Broken Bones, A Call to Dialogue on Hate Violence and the Limitations of Hate Crimes Legislation x Kay Whitlock

Delete Your Account Podcast: Reframing Hate featuring Kay Whitlock and guest host Mariame Kaba

alternative solutions
Why Hate Crimes Legislation is Still Not a Solution x Yasmin Nair

Love Hate: Why Hate Crimes Legislation is a Bad Idea x Yasmin Nair
​
prison state
Captive Genders: Trans Embodiment and the Prison Industrial Complex edited x Eric A. Stanley and Nat Smith

Queer (In)Justice: The Criminalization of LGBT People in the United States x Andrea Ritchie, Joey L. Mogul, and Kay Whitlock

anti-Semitism 
​What Israel Fears Most x Eli Massey 

On charges of anti-Semitism and Palestinian solidarity activism x Darnell L. Moore

A historical framework for continued Black-Palestinian solidarity x Devyn Springer

The back-of-the-envelope history of the Anti-Defamation League x Jeffrey Blankfort

Bill making it a federal crime to support BDS sends shockwaves through progressive community x Phillip Weiss

U.S. Lawmakers Seek to Criminally Outlaw Support for Boycott Campaign Against Israel x Glenn Greenwald and Ryan Grim

Before digging into this piece, read/review part one: A Brief Introduction of Indiana Hate Crime Bills and part two: The Precarity of Rhetoric.

Current Indiana Hate Crime Bills
Sen. Greg Taylor and Sen. Sue Glick filed bias motivated crime bills at the start of the legislative session. To date, both bills are expectedly similar to those filed by the senators last year. Sen. Taylor’s bill again requires extensive training for law enforcement to ensure Indiana police departments accurately categorize and report hate crimes to the FBI’s Uniform Crime Reporting (UCR) program. SB271 makes the same important distinction as its predecessor SB336 between gender and gender identity, covering both gender assigned at birth and gender presentation, specific protections for gender nonconforming, trans, and nonbinary Hoosiers.

Sen. Glick’s current SB418 follows the trajectory of her bill last year, defining a bias motivated crime as a “committed offense with the intent to harm or intimidate an individual” due to their perceived or actual characteristics, language not unlike that within the vaguely worded amendment filed by Sen. Mike Delph that tanked the bill before the end of the 2017 legislative session. Sen. Glick and Sen. Taylor included public safety officials as a protected class in their combined bill SB439 last year, a dangerous move briefly explained in part two of this series. Community advocates following the current bills anticipate Blue Lives Matter amendments to both bills in the coming weeks.

A Brief History of Hate Crime Laws
Forty-five states and the nation’s capitol have a hate crimes law. A majority of state hate crime laws name categories of race, disability, sexual orientation, gender, and more as protected classes. Bias crime legislation is rooted in federal civil rights statutes, building on the momentum behind codifying and constitutionally protecting the rights of generationally brutalized and disenfranchised citizens of racialized backgrounds.

The widely varied definitions of bias motivated crimes borrow heavily from the precedent created by the Civil Rights Act of 1968. The laws are ill-fated attempts to apply identity and status-based civil rights protections to state and federal criminal codes meant to serve as a theoretical fix within a justice system that not only historically and presently leaves violence against marginalized people actively unaccounted for, but is foremost a means of systemically enacting state violence itself.

Most state hate crime laws came to fruition during a nationwide push for legislation in the 1980s and 1990s. Efforts to designate hate crimes nationwide reached a pinnacle in 2009 when President Barack Obama signed the Matthew Shephard and James Byrd Jr. Crime Prevention Act into law, expanding the federal hate crime statute to include protections for gender, gender identity, sexual orientation, and disability. The historic legislation, long fought for by hate crime law advocates, victims’ families, and mainstream LGBTQ activists, invites continued interrogation of growing support among marginalized communities for such laws.

Intent vs. Impact
Lauryn Hill imparted timeless wisdom in her song Mr. Intentional. “See the road to hell is paved with good intentions / Can’t you tell, the way they have to mention?” Hate crime laws are just one of many political projects demonstrating the dynamic and disconnect between unchecked motivations and direct consequences of policy branded as good, right, moral, and progressive.

One such example is Indiana’s feticide law, enacted to little fanfare in 1979 and enhanced by popular demand in 2009. The law was originally written to apply an additional charge and penalty enhancements to murder or aggravated assault of a pregnant person resulting in the death of a preterm fetus. The enhanced statute was a direct response to the shooting deaths of Katherin Shuffield’s preterm twins in utero during a bank robbery in 2008. The bill authored by Sen. Jim Merritt reclassified feticide from a C to a B felony and was overwhelmingly supported by lawmakers on both sides of the aisle and unlikely political counterparts, pro-choice Planned Parenthood of Indiana and Kentucky and pro-life Indiana Right to Life.

However, unlike similar statutes nationwide, the Indiana law does not explicitly exempt pregnant Hoosiers from its scope. As a result of prosecutorial interpretation and discretion over the last decade, feticide charges have been used to criminalize the pregnancy outcomes of two Asian American women, Bei Bei Shuai and Purvi Patel. The state eventually dropped the feticide charges against both women and the decision in the Patel case provides legal precedent to close the exemption loophole in the feticide statute in 2016. Both cases demonstrate a clear move by the state to use a bipartisan law to legally surveil the pregnancies of poor families and people of color and restrict access to reproductive care.

In a May 2016 hearing in the Patel case, her attorney created a Venn diagram during the last six minutes of the hearing. One circle was labeled “unlawful abortion statute” and the other “feticide statute.” The former was repealed before the original feticide bill HB1414 was introduced and passed in 1979. There was one major difference between the expired and new statute. Under the unlawful abortion statute, pregnant Hoosiers were explicitly exempt from prosecution. Under the feticide statute, the language in the law is so vague, pregnant Hoosiers can be held criminally liable for their pregnancy outcomes.

A growing concern among reproductive justice advocates is the potential of anti-abortion lawmakers to identify fetuses as a protected class, similar to efforts to include police officers as a protected class via Blue Lives Matteramendments, effectively making a hate crimes statute another means to challenge access to constitutionally protected, legal, and safe abortions as well as comprehensive reproductive care. Sen. Aaron Freeman has employed this tactic in SB203, a redundant, feticide-adjacent bill defining preterm as a fetus at any stage of development, a law that would: (1) overturn the precedent gained with Purvi Patel’s case, (2) create barriers for fertility treatment centers, and (3) establish legal grounds to introduce fetal personhood, a conservative strategy to restrict and outlaw abortion altogether. It is clear there is a long game nearly forty years in the making to make Indiana an unsafe place for pregnant Hoosiers, especially those from marginalized communities, using a law promoted and supported to protect pregnant Hoosiers.

Hate crime laws operate similarly, revealing life-altering limitations and failings of legislation motivated by little substance and much good intent. In 2015, Bayna-Lenkeim El-Haim was convicted of first and second degree assault of two gay white men in Manhattan. News reports consistently described the incident as an anti-gay attack committed by a homophobic brute. El-Haim is black, tall, and built, characteristics perfectly juxtaposed with the victims of the crime. The case was originally investigated as a hate crime but evidence proved insubstantial. Video footage, character witnesses, and witnesses at the scene reveal several key details obscured or determined irrelevant during the trial and sentencing hearing. El-Haim is also queer and an LGBT activist of over two decades volunteering as an HIV/AIDS tester and ballroom scene mentor for queer youth. He alleges his version of events challenge the initial investigation and subsequent campaign to charge him with a hate crime. One of the victims called El-Haim a racial slur, hit him with a bag when directly confronted, and brandished a knife from the table, escalating the conflict. El-Haim maintains he acted in self-defense in response to anti-black racism, but was sentenced to nine years in prison.

Though prosecutors did not file hate crime charges, the case illustrates the precarious nature of and profound lack of clarity within identity-based criminal codes. The most clearly defined hate crime laws and protected classes do not account for power dynamics and structures informing and impacting interpersonal and communal conflicts, abuses, incidents codified as hate crimes. As explored in part two of this series, hate is a legal concept wrought with varied mis/interpretations, open to selective mis/application, a harmful risk and reality disproportionately affecting marginalized people.

In her piece for Village Voice exploring El-Haim’s case, Grace Dunham makes an astute observation: “Because of socioeconomic factors, the definition of what a hate crime even is tends to favor those who can afford to plead their cases in court. Hate crime laws are as susceptible to selective application as the rest of the American legal system.”

Hate crime statutes, though well-intended, “must be considered in the context of the failures of our legal systems, and specifically, the violence of our criminal justice system,” writes Dean Spade in his seminal text Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law.

Vann R. Newkirk II, staff writer at The Atlantic, provides a needed reminder, “A system cannot fail those it was never meant to protect,” a reflection on this important context. The U.S. legal system is rooted in unjust policy and practice from its inception, and hate crime laws amount to little recourse for discriminatory harm, and often act as yet another tool to criminalize and control marginalized communities.

Support for Hate Crime Laws
Dean Spade sheds light on why marginalized groups, specifically prominent LGBTQ+ organizations and individuals, support hate crime legislation in his thought-provoking Against Equality essay Their Laws Will Never Make Us Safer.​

Hate crime laws appeal to marginalized people experiencing discrimination that causes property damage, bodily injury, or death. The laws appear to validate identity-based harm and invite communities targeted by state violence to feel included and protected by the state. Spade continues, “Everything about our current law enforcement systems indicates that this is a false promise, and it’s a false promise that targets people of color and poor people for caging and death while delivering large profits to white elites.” It is worth noting queer people of multiple marginalized identities, whose needs and concerns are often overlooked and erased by mainstream LGBTQ+ institutions, are disproportionately affected by this reality as well.
​
Efforts to reform the legal system often reifies rather than dismantles state power destroying marginalized communities. Indiana voters, lawmakers, political and community advocates can rescind growing support for both bias crime bills. The opportunity to prevent a hate crimes law can curtail another form of state violence embedded in the criminal code harming vulnerable Hoosiers.

Before digging into this piece, read part one: A Brief Introduction of Indiana Hate Crime Bills.

Deconstructing Hate and Oversimplified Rhetoric
To better understand substantiation behind hate crime legislation, it is important to analyze the social construction of the word hate and similar rhetoric in contemporary discourse. Submit for a brief moment to a binary thought, to explore how the meanings of oversimplified words dynamically change over time and misapplication bears far-reaching political implications regardless of intent.

“Resist hate,” a liberal slogan gaining popularity after last year’s presidential election and conservative dog-whistles like “they hate our country” serve as ideological mirrors of one another, more similar than Democrats and Republicans alike might notice and acknowledge. What hate arguably represents to political factions of our two-party system are hardly distinguishable to opposing groups on either side of the aisle. Hate as a general descriptor fails to account and correct for historical violence and power structures functioning on the backs of marginalized people, the very people bias crime laws were and are best intended to protect. Instead, the word hate is assigned to extremist groups and lone wolf perpetrators to absolve the greater good of contributing to and benefiting from socially conditioned superiority, normalizing hatred and structural violence that enable and fuel what we believe are hate crimes.

Hate crimes are considered deliberate bodily harm or property damage targeting a specific groups of people sharing one or more identities, a decontextualized concept armed with a broad definition to serve as a catch-all for crimes popularly considered against humanity in forty-five states. This definition rests on a core ideal of neo/liberalism, condemning arbitrarily determined values without naming and confronting systemic oppression that shape those communally shared values and the cultural-political fabric of this country.

Debunking Colorblind Data
The FBI’s Uniform Crime Reporting (UCR) Program collects data points “regarding criminal offenses that were motivated, in whole or in part, by the offender’s bias against a race, gender, gender identity, religion, disability, sexual orientation, or ethnicity.” These categories are not inherently wrong as the data itself is important to gather for research purposes and informed political advocacy.

The UCR promotes objectivity but legitimizes the illusion of anti-whiteness, derailing necessary discourse around white superiority and dominance in every institution in the U.S. However, the data illustrates the reality of hate crime victims and offenders based on racial identity. Of over 3,489 race-based incidents reported in 2016, 50% were motivated by anti-black bias, with half of the crimes committed by white offenders falling into three main categories: aggravated assault, simple assault, and intimidation.

This reveals a false premise that conflates white and black offenders under the guise of remaking racism as racial bias stripped of collective racialized power. It perpetuates the thoroughly debunked idea that racism “works both ways” within a law enforcement and criminal justice system built on white supremacy and anti-blackness in politic and practice.

Expanding Protected Classes
In an apparent attempt at bipartisan appeal, both Senators Greg Taylor and Sue Glick included police officers under protected classes, codified as public safety officials. The glaring difference between other categories and police officers is discrimination protections are typically afforded on the basis of identity and circumstance, not occupation. “Blue Lives Matter,” the political motivation behind the recent push to mark police officers as a legally protected class is a direct and antagonistic response to Black Lives Matter and the Movement for Black Lives, organizing coalitions seeking justice on behalf of black people and others extrajudicially beaten or killed by police nationwide, usually without consequence.

Philip Stinson, associate professor of criminal justice at Bowling Green State University, led an extensive research project to analyze arrest and conviction rates for murder or manslaughter among police officers on duty. Over the course of a 12 year timespan between 2005 and Spring 2017, 80 officers were arrested and the conviction rate stands at just 35%. For reference, the number of state and local police officers nationwide hovers between 850,000 and 950,000. According to recent studies, about 1,000 people are killed every year by police officers in on-duty shootings. The data is abundantly clear: Though not formally codified as a protected class, police officers are legally well-protected.

Pitfalls of Vague Legislation
The Indiana GOP Caucus is infamous for often utilizing the political tactic of codifying vague language in life-altering legislation, opening the door to legal misinterpretations by design. Look no further than Indiana’s feticide law, originally intended to apply an additional charge and potential penalty enhancements to murder or aggravated assault of a pregnant person resulting in the death of a preterm fetus. Instead, the law has been used to primarily criminalize women of color and the immigrant community for accessing elective abortion or experiencing miscarriage and other unintended pregnancy outcomes — Bei Bei Shuai and Purvi Patel can attest.

During the last legislative session, Sen. Mike Delph tanked Sen. Glick’s hate crime bill by attaching an amendment to delete protected classes from the code in favor of criminalizing any act of harm against persons or property based on “characteristic, belief, practice, (and) association.” Though well-intended, hate crime laws put marginalized people and communities at risk of more harm by the state than provided legal protection. Removing clear specificity further obscures protected classes and their limited necessity and gives room for legal loopholes that disproportionately endanger people hate crime laws are supposedly meant to defend.

A Political Dilemma
Liberalism is not an adequate response to compounded inequity on multiple fronts that breeds generational harm and cultures of systemic violence. Signing the condemnation of hate into state law is a reckless cause without analyzing, understanding, and addressing power dynamics informed and impacted by oppression, by identity, by history unfolding in the present political environment.
​
Organizer and scholar Kay Whitlock contends in Reconsidering Hate, “The harm and injustices summed up as ‘structural violence’ are experienced psychologically, physically, economically, and socially. This impacts are cumulative over time. They cannot simply be policed, prosecuted, and punished away.” The legal system as we know it cannot and will not pass or enforce legislation to address structural violence or correct a deeply unjust power differential it created and continues to sustain on. Without a hate crime law, Hoosiers have an unprecedented opportunity to imagine otherwise ways of responding to injustice.

For six consecutive legislative sessions, Indiana lawmakers have unsuccessfully introduced several different versions of hate crime bills. The most recent efforts were led by Democratic Sen. Greg Taylor and Republican Sen. Sue Glick, both authoring two bills each last session to address “bias-motivated crime.” The failed attempts at codifying a hate crime law ended before securing a hearing and after a reading in the Corrections and Criminal Law committee.

In the wake of the Religious Freedom Restoration Act (RFRA) of 2015, Hoosier constituents launched and led the “Four Words and a Comma” campaign urging legislators to expand the state’s civil rights provisions to include gender identity and sexual orientation. The bill closest to realizing the campaign’s goals added military status and dropped gender identity from protected classes, excluding transgender people entirely. Twenty-seven amendments later, covering local ordinance overrides to religious exemptions to trans inclusion to a full RFRA repeal, the bill died in late January 2017, setting the stage for another round of hate crime legislation. Indiana’s civil rights statute currently outlaws discrimination in the areas of housing, employment, and public accommodation on the basis of race, color, national origin, sex, ancestry, off-duty tobacco use, sealed and expunged arrest or conviction records, physical and mental disability, and age.

The first of Sen. Taylor’s bills proposed mandatory bias crime training and reporting for law enforcement officers. FBI crime data reveals despite federal guidelines, only half of Indiana police departments submit hate crime reports to the agency, leaving unaccounted gaps in bias crime statistics. According to submitted reports in Indiana and nationwide, the consistent majority of hate crimes are determined race-related. However, clearly defined differences between racial biases within the reporting guidelines of the most updated Hate Crime Data Collection Manual is glaringly missing. The egregious omission is a manifestation of white supremacy in the U.S., conflating racial prejudice with the power structure historically and presently holding whiteness as superior. This distortion flattens blatantly racist acts of violence white people commit against people of color beyond distinction.

Sen. Taylor’s second bill was folded into Sen. Glick’s more popular version in hopes of gleaning further bipartisan support. The bill created a bias crime law tied to protected classes under the civil rights code and explicitly included sexual orientation, gender identity, and public safety officials. The bill defined a crime motivated by bias that causes personal injury or property damage an “aggravated circumstance” worthy of penalty enhancements adjudicated during criminal sentencing, a standard practice utilized by the criminal justice system disproportionately affecting identity groups hate crime laws are inadequately designed to champion. Backed by an influential GOP contingent, Republican Sen. Mike Delph attached an amendment deleting protected classes in favor of criminalizing any act of harm against persons or property based on “characteristic, belief, practice, (and) association,” ambiguous language gutting the original provisions. The heavily modified bill reportedly earned considerable support among ultra conservative lawmakers. Sen. Glick subsequently chose to pull the bill before full debate on the Senate floor, blocking a passable hate crime law sans protected classes altogether.

A few weeks ago, white nationalists descended upon Charlottesville, VA to protest removal of a Confederate statue bearing the likeness of Robert E. Lee. The harmful and lethal results of the white supremacist attack ignited conversation and political action nationwide and in Hoosierland, about our own Confederate effigies still standing, an Indiana chapter of the Ku Klux Klan with a long and painful history, and an infamous absence of a hate crime law. Energized by loudly celebrated and disavowed displays of overt, bare-faced racism, Sen. Taylor and other state legislators are reviving hopes to finally enjoin Indiana and the U.S. state majority with some form of bias crime laws. The political project indicates liberal and conservative interest in passing hate crime legislation in Indiana is historically ill-informed, and worse — political grandstanding. Indiana is one of five states in the country lacking hate crime legislation on the books, and Hoosiers should consider the case for remaining without.