Protecting the homeless under vulnerable victim sentencing guidelines: an alternative to inclusion in hate crime laws.

• Author: O'Keefe, Katherine B.

TABLE OF CONTENTS INTRODUCTION I. ENHANCED PUNISHMENTS A. Hate Crime Laws B. Vulnerable Victim Sentencing Guidelines C. Criticisms of Enhanced Punishments II. DEHUMANIZATION OF THE HOMELESS III. PROTECTING THE HOMELESS UNDER VULNERABLE VICTIM SENTENCING GUIDELINES A. Vulnerable Victim Sentencing Guidelines as a Flexible Alternative to Hate Crime Statutes B. Applying Vulnerable Victim Sentencing Guidelines to the Homeless 1. The Fundamental Purpose of Vulnerable Victim Sentencing Guidelines 2. Specific Court Cases Involving the Federal Vulnerable Victim Sentencing Guideline a. Homelessness as a Factor b. Homelessness as a Proxy for Vulnerability CONCLUSION INTRODUCTION

Michael Roberts was a homeless (1) man living in Daytona Beach, Florida, when he was brutally attacked and killed by four teenage boys in May 2005. (2) One of the boys was only fourteen years of age, (3) and another admitted to being high at the time of the attack. (4) The boys beat Roberts in three separate attacks, using sticks to hit him and fracture his skull. (5) They also jumped on a log placed on his chest, breaking his ribs. (6)

This kind of violence exhibited toward the homeless is not uncommon, and such attacks are alarmingly random and brutal. (7) Both law enforcement officials and researchers agree that the number of attacks on the homeless has increased over the past several years. (8) In absolute terms, there have been 880 documented attacks on the homeless over the past decade--244 of which were fatal. (9) These attacks have occurred in fifty-five different cities across the United States. (10) And consistent with the beating death of Michael Roberts, the perpetrators were mostly men and teenage boys who committed these horrendous acts of violence simply for the thrill of it. (11)

These trends are troubling, especially because the threat of violence against the homeless may increase as the number of people living on the streets grows. Although it is uncertain whether the homeless population will expand in the near future, two factors make this prediction a distinct possibility. First, the ongoing wars in Afghanistan and Iraq are increasing the number of veterans living on the streets; in 2007 alone, the Department of Veterans Affairs reported that over 400 homeless persons were veterans of the wars in Afghanistan and Iraq. (12) Indeed, war veterans are more susceptible to becoming homeless because they frequently suffer from post-traumatic stress disorder or traumatic brain injuries. (13) To cope with these conditions, many veterans turn to alcohol and drugs, which makes it harder for them to maintain an existence in mainstream society. (14) Moreover, those veterans who have been on multiple tours in Afghanistan or Iraq often experience difficulty adjusting back into family and work life. (15) As long as the wars continue, and more soldiers return to U.S. soil, this problem of neglected, homeless veterans has the potential to escalate. (16)

The second factor that will likely contribute to an expanding homeless population is the recent economic downturn and the housing crisis. Foreclosures are forcing individuals and families to leave their homes and seek shelter elsewhere. In 2009, an average of 10 percent of the people living in homeless shelters had lost their homes to foreclosure. (17) In the Midwest, high foreclosure and unemployment rates were factors for 15 percent of the newly homeless. (18) California, Michigan, and Florida also have a large number of newly homeless individuals and families due to high foreclosure rates. (19) As long as the housing and job markets stay depressed, home foreclosure is sure to be a factor in the potential growth of the country's homeless population.

In response to the rise in violence against the homeless and the potential growth in the homeless population, many advocacy groups have urged legislatures to pass legal reforms that deter such violence by punishing more severely those who attack the homeless. These groups advance two principal ways to accomplish this objective. The first is to add the homeless to federal and state hate crime statutes, an approach that Maryland has already adopted. (20) The second is to apply federal and state vulnerable victim sentencing guidelines to those who are convicted of attacking the homeless. (21) This Note explores the reasons why vulnerable victim sentencing guidelines provide a viable and preferable alternative to hate crime statutes for protecting the homeless against violent crimes. (22)

Part I of this Note explores the theories that support hate crime statutes and vulnerable victim sentencing guidelines, and then analyzes the general criticisms of enhanced punishments. Part II examines the dehumanization of the homeless through laws affecting their livelihood and shows that, in theory, laws reflect the values of society. Part III analyzes the application of vulnerable victim sentencing guidelines to those convicted of attacking the homeless, and explains why this approach is practical. This Note argues that the homeless do not belong in hate crime statutes because homelessness is not an immutable trait, nor is it a category that applies equally to everyone. Instead, legislatures should add homelessness to vulnerable victim sentencing guidelines so that courts will be required to take into account the homelessness of the victim when calculating the advisory sentencing range. Vulnerable victim sentencing guidelines provide the greater protection that society should give to the homeless, can be applied by the judicial system immediately, (23) and supply a flexible, rather than stagnant, standard.

1. ENHANCED PUNISHMENTS

   Advocates for the homeless have proposed two forms of enhanced punishment to protect the homeless against violent crimes: hate crime laws and vulnerable victim sentencing guidelines. All enhanced sentencing guidelines piggyback onto other criminal statutes. (24) For both hate crime and vulnerable victim enhancements, however, the federal sentencing guidelines are advisory and not mandatory. (25) Parts I.A and I.B will discuss these two enhanced punishments in more detail, and Part I.C will discuss criticisms of both.

   1. Hate Crime Laws

      Both federal and state legislatures have enacted hate crime statues. The main federal hate crime sentencing guideline that calls for enhanced punishment states:

      If the finder of fact at trial or, in the case of a plea of guilty or nolo contendere, the court at sentencing determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person, increase [the punishment] by 3 levels. (26) Although most states have a version of this law, each statute's definitions, scope, penalties, and punishment enhancements vary greatly. The basic premise is that a victim of a hate crime was attacked because of a particular protected aspect of his or her identity, not for whom he or she is as a person. (27)

      The main goal of hate crime statutes is to protect certain self-identifying groups: individuals brought together around a shared purpose and a sense of loyalty regarding a particular characteristic. (28) A self-identifying group is something stronger than a random collection of people with a common identity trait. (29) It has been observed that this common attribute often is immutable or costly to change. (30) This observation is certainly true when it comes to a characteristic such as race or gender. Immutability, however, has not been the sole factor in determining which groups hate crime legislation should protect. State hate crime statues may also include other, arguably mutable, personal traits, such as religious belief, marital status, and political affiliation. (31) Although there is no definite consensus as to which groups should be included in hate crime laws, the laws generally protect self-identifying groups.

      Hate crime laws try to accomplish two additional intangible goals. A hate crime leaves an ongoing fear in the targeted self-identifying group within a particular community. (32) Hate crime laws try to ameliorate that fear by both increasing public awareness of the violence committed against a certain group in society, and providing protection to groups that are commonly marginalized by law enforcement and the courts. (33) These laws send an important message to society that crimes against certain groups will not be tolerated, and thus deserve a heightened level of punishment.

   2. Vulnerable Victim Sentencing Guidelines

      As is the case with hate crime laws, federal and state legislatures have also passed vulnerable victim sentencing guidelines. The federal vulnerable victim sentencing guideline provides that "[i]f the defendant knew or should have known that a victim of the offense was a vulnerable victim, increase [the punishment] by 2 levels." (34) A "vulnerable victim" is defined as one "who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct." (35) The vulnerability of a victim is also a sentencing factor written into several state laws, with Alaska specifically naming homelessness in its statute. (36) It should be noted, however, that these state provisions identify particular characteristics that render a victim vulnerable, thus limiting protection to those groups. (37) In comparison, the federal standard includes a catchall clause providing protection to anyone "who is otherwise particularly susceptible to ... criminal conduct." (38)

      The vulnerable victim sentencing adjustment attempts to protect particular groups within society, but these groups do not self-identify through a specific characteristic. Instead, the groups are based around characteristics that make the members of that group...