But is there a way to solve one problem without creating another?
By s.e. smith
Facebook live has become an unexpected witness to the best and worst of us — it has streamed multiple police shootings, allowed BuzzFeed staffers to mutilate a watermelon, and, in early January, broadcast a gruesome torture scene. In the shaky, poorly lit video, four people surround a bound 18-year-old disabled man, shouting at him, kicking his head, and cutting him. The incident appears to have gone viral not so much because of the disability angle, but because of a racial one: The young man is white, and his four attackers, charged with committing a hate crime, kidnapping, and battery, among other things, are black.
The case quickly became a cause celebre among white supremacists, who have referred to it as the “Black Lives Matter Kidnapping” and claimed it to be a “hate crime” — a crime of black people terrorizing a white man because of his race. Even a police official appears torn: Is this about race, or is it about disability?
Answering this question proves complicated. Disability often makes people minimize cases of abuse and torture, turning them into “pranks” or “bullying” rather than recognizing them for what they are — unless the victim is white and young, and the crime involves one or more perpetrators of color. Exploring the tangled circumstances surrounding this case and others like it reveals that, as elsewhere, the race of victims and perpetrators has an influence on how crimes are handled. It also demonstrates the need for reforms to shift the way we talk about race, disability, and the legal system.
In September of 2003, law enforcement found a severely beaten disabled black man, Billy Ray Johnson, by the side of the road after receiving a tipoff from a member of the public — who ultimately turned out to be one of the people who’d participated in his beating. As a result of the injuries, Johnson, 42, now requires continuous skilled nursing care and has been moved to live in an institution. Juries in the cases of his four assailants rejected felony convictions, instead convicting the white men of misdemeanors and recommending suspended sentences. In 2007, the Southern Poverty Law Center successfully sued for $9 million in damages in civil court.
Three years later, in 2010, Jennifer Daugherty, a white disabled woman, was tortured and killed by a group who came to be known as the “Greensburg Six.” Her case sparked a horrified response and harsh sentences for some of her killers — Melvin Knight, the one black defendant, was sentenced to death, as was Ricky Smyrnes, considered the group’s ringleader.
Is this about race, or is it about disability?
In October of 2015, a black disabled football player was attacked and raped by two white teammates in a case that sparked concern because it was labeled “bullying” and neither hate nor sex crimes charges were brought. Despite the fact that his teammates referred to him using racial slurs and forced a coat hanger up his rectum, John R. K Howard, the leader of his assailants, was able to enter an Alford plea, pleading guilty to a lesser charge and maintaining his claim of innocence.
The horrifics go on, but it’s clear: Disabled lives are often devalued, especially when they are disabled people of color, with white-on-black crime in particular taken less seriously, while white victims of people of color are more likely to see justice. Disabled people are more than twice as likely to be victims of violent crime overall, but law enforcement may be reluctant to consider these cases as hate crimes, notes the Leadership Conference — they may instead be lumped together as “abuse.” Consequently, in 2014, disability accounted for a little over 1 percent of hate crimes reported to the FBI, and the nature of disability hate crimes is poorly understood.
Overlap between disability and race cannot be brushed aside when discussing how and why crimes against disabled people are prosecuted. Recent Census data show that 22 percent of black people in the United States are disabled, in contrast with just 17 percent of whites. This has to factor into discussions about how to address and accurately identify crimes against disabled people — often they are not just disability hate crimes, but also racial hate crimes. But hand-in-hand goes the issue of racial inequalities in the justice system, determining who is sent to prison, why, and for how long; a “tough on crime” approach to disability-related crimes could exacerbate social and judicial inequalities.
This response to this kind of violence is often a legal crackdown. Hate crimes laws reflect this approach by creating a specialized classification for crimes deemed to be motivated by bias, but they may not be effective, and could in fact have hidden consequences.
A great deal of the research on hate crimes comes from the push to more aggressively prosecute crimes against LGBQT people, particularly through the Matthew Shepard and James Byrd Act of 2009, which dedicated resources to assisting with the prevention and prosecution of hate crimes. Hate crimes legislation may reclassify crimes or enhance sentences, including creating a framework for mandatory minimums. The argument in support of such laws is that they should act as a deterrence, but the Department of Justice notes that there isn’t really enough data to draw firm conclusions.
Yet, research on such laws suggests that they aren’t very effective. Organizations like the Sylvia Rivera Law Project actually oppose them, arguing that they have a tendency to perpetuate injustice for people of color. The civil rights organization notes that mass incarceration is a significant problem for communities of color, and that hate crimes legislation can feed unjust incarceration without resolving the underlying problem: “As an organization that centers racial and economic justice in our work and that understands mass imprisonment as a primary vector of violence in the lives of our constituents, we believe that hate crimes legislation is a counterproductive response to the violence faced by LGBT people.”
Because it can be difficult to categorically define a hate crime, they become victims of selective enforcement, the very issue that makes many organizations helmed by people of color nervous. When the definition of a “hate crime” is slippery and prosecutors are facing pressure from the public, that can result in a racist outcome. The white football player is suddenly engaging in teenage hijinks when he assaults a black teammate, for example, while the black youth is committing a hate crime against an innocent white victim. Both victims are disabled and the crimes are similar, but racial dynamics have disrupted the way people view the two cases.