Lexington, VA • Friday, October 01, 2010
On Wednesday, September 29, Washington and Lee law professor Erik Luna testified before a U.S. Senate subcommittee examining whether violence against America's homeless population is on the rise. The Senate Judiciary Subcommittee on Crime and Drugs held the hearing in response to a recent report from the National Coalition for the Homeless (NCH) that claims the killing of homeless people has risen to the highest level in a decade.
At issue are two bills before Congress that would amend the Hate Crime Statistics Act, which directs the U.S. Department of Justice to acquire data about crimes motivated by prejudice based on race, religion, sexual orientation, or ethnicity. The bills, which Luna does not oppose, would amend the twenty-year old statute to include homeless status as a protected class for the purpose of tracking hate crimes.
"If anything, the bills do not go far enough to ensure full and accurate information about both the commission of and official reaction to crimes motivated by legislatively identified animus or bias," says Luna.
Juxtaposed against stories of the homeless being doused with gasoline and set ablaze, beaten with pipes and bats, and stabbed with knives and broken bottles, discussions of crime statistics may sound cold. But Luna argues that accurate data on the occurrence of these crimes and law enforcement's response to them will help policymakers determine whether hate crimes against the homeless are on the rise and not receiving sufficient attention, or instead comparatively infrequent occurrences that are appropriately dealt with in state criminal justice systems.
The larger problem has nothing to do with the proposed bills, Luna says. Instead, he is concerned about a federal law passed last year—the Hate Crimes Prevention Act (HCPA)—which Congress enacted without any evidence that state and local officials were failing to pursue bias-motivated offenses or that the offenders were not receiving just and effective punishment. Since the new law came into effect, there have been no federal hate crimes prosecutions.
"If state and local law enforcement are doing their jobs, then the federalization of hate crimes would seem to be just another example of symbolic politics, with Congress enacting an unnecessary and potentially harmful piece of legislation," says Luna. "But if police and prosecutors are not pursuing crimes of violence committed against powerless groups like the homeless, then some type of action is called for—whether it be political or judicial—and we can discuss the constitutional basis for federal legislation and enforcement, as well as the potential problems this would raise."
In the murky and adrenalin-filled circumstance of a criminal episode, Luna observes, it is very difficult to distinguish between a crime and a hate crime. Consequently, the reporting on these crimes often requires law enforcement officers or advocacy groups to "guesstimate" the existence and level of bias involved in an attack. Moreover, some advocacy groups count all incidents as "hate crimes," even if they do not amount to a criminal offense or only involve bias-motivated comments, and regardless of the source of information.
Nonetheless, Luna believes that the NCH report—which he describes as "well intentioned and laudable in many parts"—might lead policy makers to amend the HCPA to include the homeless as a protected group for federal prosecutions. "Given the problems with the existing data on hate crimes, the information gathered pursuant to the proposed bills would be helpful," says Luna. "What is missing from our collective knowledge now is whether the HCPA is justified by the failure of state and local officials to prosecute cases of violence that fall within the definition of a hate crime. As argued in my testimony, I hope Congress will fill this gap by amending the bills to include a comprehensive study into the question of state default in bias-motivated crimes."
An expert in criminal law and procedure, Luna is frequently called upon to testify regarding issues of criminal justice. In 2009, he testified twice before the U.S. House of Representatives on the ability of the states to provide legal services to indigent criminal defendants as required by law. Earlier this year, he testified before the U.S. Sentencing Commission on the issue of mandatory minimum sentencing.
Luna's varied experience includes service as a Fulbright Scholar researching sentencing alternatives in New Zealand and as a visiting scholar in Germany at the Max Planck Institute for Foreign and International Criminal Law, the world's foremost center for the comparative study of criminal law and procedure. He is also an adjunct scholar with the Cato Institute, a public policy research foundation.