Legislating Against Hate: Why Ohio's Hate Crime Statute, and the Sentencing Enhancements that Support it, Cannot Remedy Institutional Problems and Continued Bigotry
| Author | Sarah Ingles |
| Pages | 119-156 |
LEGISLATING
AGAINST HATE:
WHY
OHIO'S
HATE
CRIME
STATUTE,
AND
THE
SENTENCING
ENHANCEMENTS THAT
SUPPORT
IT,
CANNOT
REMEDY
INSTITUTIONAL PROBLEMS
AND
CONTINUED
BIGOTRY
SARAH INGLES*
I.
INTRODUCTION
We
cannot
fight
back
against
hatred
until
we
understand
how
hatred is
destroyed.
A
gaping
wound
in
our
society,
hate-filled
violence brutally
attacks
our
communities,
sense
of
being,
sense
of
security,
and
sense
of
self.
Recognizing
the
wounds
that
hate
crimes
leave
behind,
legislators
and
hate
crime
statute advocates have
scurried
to
implement
statutes
that
serve as
temporary, disease-ridden
band-aids on
our underlying
societal
problems.
But
seeping through,
the underlying
bigotry
and
prejudice
that
create
these hate
criminals
steadily flows,
initiating
new
and
continuous
attacks
against our
most threatened
communities.
At
the
same
time,
this
legislative
infection
spreads
to
the
most
vulnerable
areas
of
our
society,
creating
new
problems.
The
only
way
to
heal
this
proverbial
wound
is
to
stop
the
bleeding-that
is,
diminish
the
hatred
and the underlying
sentiments
that
support
it.
This
Comment
begins
by
examining
the
historical,
cultural,
and
legal
basis for
our
current
hate
crime
statutes
across
the
United
States
and,
more
specifically,
in
the
state
of
Ohio. After
accepting
that
we
need
to
do
something to
combat
hate and
bigotry,
this
Comment
examines
the effect
that hate
crime statutes and
their
penalty
enhancements
have
on
marginalized
communities, reviews
the
status
of
the
Ohio,
and
notes
the
glaring
need for methods
to
help
hate
criminals become
less
hateful while
simultaneously supporting victims.
This
Comment
chronicles
the
Copyright
©
2018,
Sarah Ingles.
*
2018 graduate
of
Capital
University
Law
School.
I
am
appreciative
of
my
faculty
advisor,
Professor
Mark Strasser, for
his
detailed
written
comments,
patience, and
sincere
kindness
throughout this
process.
I
am
thankful
for
the
friends
and community
members
that
continually challenge
me
to
critically analyze
the
difference
between
how
things
are
and
how they
ought
to
be.
I
am
inspired
by
the
leaders
that
share
their
experiences with
adversity
and
hostility
so
that
others,
like
myself,
may
learn from
them.
I
am
eternally
grateful
to
my
family,
close
friends, and
fiancd who
supported
me
throughout
this
process.
CAPITAL
UNIVERSITY LAW REVIEW
difficulties
with
reporting
and
enforcing
hate crimes,
and
explores
the
reasons
that
hate
crime statutes
are
used
in
some
crimes
and
situations
but
not
others.
It
also
posits
that
statutory enhanced
sentences
are
not
the
most
effective
way
to
combat
hate criminals
because
in
effect,
enhanced
sentences hurt
the
communities
and groups
they
seek
to
protect,
due
to
the
power
these statutes
give
to
institutions that
have
repeatedly
failed
to
represent
and
protect them. Finally,
this
Comment suggests
alternative
tactics
that could
be taken
by
both legislators
and
community activists that
would
help
survivors
and
community
members
heal, publicly
denounce the
hate-inspired
acts, and
simultaneously work
toward
preventing
the
criminal
from
committing
hate
crimes
again.
II.
UNDERSTANDING
HATE
CRIMES'
The
number
of
hate
groups
operating
in
the United
States
appears
to
be
on the
rise.
1
The Southern
Poverty
Law
Center
(SPLC)
estimates
that
917
hate
groups
exist
across
the
country,
which
the
organization
notes
"undoubtedly
understate[s]
the
real
level
of
organized
hatred
in
America."
2
Anti-Muslim
hate
groups
alone have increased
from
thirty-four
groups
in
2015
to
101
groups
in
2016-a
197%
increase.
3
Ohio seems to
follow
this
national
trend.
4
Thirty-one organizations
labeled
by
the
SPLC
as
hate organizations
are
present
in
the
state,
as
are
the
headquarters for
a
few
Ku
Klux
Klan
organizations,
white supremacy
organizations,
anti-LGBT
hate
groups,
and
Daily
Stormer,
the
most
popular
and
most visited
alt-right webpage
in
the world.
6
Mark
Potok,
The
Year
in
Hate
and
Extremism,
SoUn-tERN
POVERTY
L.
CTR.
(Feb.
15,
2017),
https://www.splcenter.org/fighting-hate/intelligence-report/2017/year-hate-and-
extremism
[https://perma cc/9NGU-XN4H].
21Id.
3
Anti-Muslim,
SOUTHERN
POVERTY
L.
CTR.,
https://www.splcenter.org/fighting-
hate/extremist-files/ideology/anti-muslim
[https://perma.cc/D2PF-PYX7].
4
Hate Map,
SouTERN
POVERTY
L.CTR., https://www.splcenter.org/hate-map
[https://perma.cc/58L4-9K57].
I
The
Southern
Poverty
Law
Center
defines "alt-right"
as
the
following:
"The
Alternative
Right,
commonly
known
as
the 'alt-right,'
is
a
set
of
far-right
ideologies,
groups
and
individuals
whose
core
belief
is
that
'white identity'
is
under
attack
by
multicultural
forces
using
'political correctness'
and
'social
justice'
to
undermine
white
people
and
'their'
civilization."
Alt-Right,
SOUTHERN
POVERTY
L.CTR.,
https://www.splcenter.org/fighting-hate/extremist-files/ideology/alt-right.
[46:701
LEGISLATING AGAINST
HATE
Perhaps
as
a
result
of
a
significant
expansion
of
organized
hate
groups,
news
reports
covering
the
increase
of
hate
crimes
nationwide
have
multiplied
across the country
and
have
risen
significantly
since the
November
2016
election.
7
Due
to
the
recent
uptick
in
reported
hate
crime
activity, some
states
have
created
specific
hate
crime
enforcement
units.
8
While
some
people
have argued
that
claims
of
increases
in
hate
crimes are
overblown
or
fake,
9
reports published
by
the Federal
Bureau
of
Investigation (FBI) show
the
opposite.'
°
The
FBI's
Hate
Crime
Reporting Program
compiles
and
publishes
state
and
national
hate
crime
statistics
from
law
enforcement
agencies
across
the
country."
In
2015
14,997
law
enforcement
agencies
nationwide
reported
5,850
criminal
incidents
and
6,885
related
offenses
motivated
by
bias
6
1d.;
Keegan
Hankes,
Eye
of
the
Stormer,
INTELLIGENCE
REP.,
Feb.
9,
2017,
https://www.splcenter.org/fighting-hate/intelligence-report/
2
017/eye-stormer
[https://perma.cc/9HIPJ-7AS8];
Matt
Pearce,
What
Happens
When
a
Millennial
Goes
Fascist?
He
Starts
up
a
Neo-Nazi
Site,
L.A.
TiMES
(June
24, 2015,
3:16
PM),
http://www.latimes.com/nation/la-na-daily-stormer-interview-
20
150624-story.html
[https://permacc/7PM8-92UQ].
'See
Update:
Incidents
of
Hateful
Harassment
Since
Election
Day
Now
Number
701,
SOUTHERN
POVERTY
L.
CTR.
(Nov.
18,
2016),
https://www.splcenter.org/hatewatch/
2016/11/18/update-incidents-hateful-harassment-election-day-now-number-
701
[https://permnacc/8L6X-4SZF];
Alexis
Okeowo,
Hate
on
the
Rise
After
Trump's
Election,
NEW
YORKER,
November
17,
2016,
http://www.newyorker.com/news/news-desk/hate-on-
the-rise-after-trumps-election
[https://permacc/UY9N-G3Y8];
Katie
Reilly,
Racist
Incidents
Are
Up
Since
Donald
Trump's
Election.
These
Are
Just
a
Few
of
Them,
TIME,
Nov.
13,
2016,
http://time.com/4569129/racist-anti-semitic-incidents-donad-trump
[https://perma.cc/2y3G-6PVM].
8
Amy
La
Porte,
Spike
in
Hate
Crimes
Prompts
Special
NY
Police
Unit,
CNN
(Nov.
21,
2016,
11:32
AM),
http://www.cnn.com/2016/11/20/us/hate-crime-unit-new-york/
[https://perma.cc/7D48-DBUZ].
I
Joe
Bilello,
Musings
of
an
Average
Joe:
Let
the
Fake
Hate
Crime
Frenzy
Begin,
FOX
NEWS
(Nov.
19,
2016),
http://nation.foxnews.com/2016/11/19/musings-average-joe-let-
fake-hate-crime-frenzy-begin
[https:I/perma.cc/ZV5C-YPBF]; Joel
B.
Pollak,
Wave
of
Fake
'Hate Crimes'
Sweeps
Anti-Trump
Social
Media,
BREITBART
(Nov.
13,
2016),
http://www.breitbart.com/big-government/2016/11/13/wave-fake-hate-crimes-sweeps-anti-
trump-imaginations/
[https://permacc/BMP7-X7Y6].
10
2015
Hate
Crime
Statistics,
FBI,
https://ucr.fbi.gov/hate-crime/2015
[https://permacc/TT8X-A8N8].
11 Id.
2018]
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