After acknowledging "concerns" from the community and a request for delay from the director of the city's Office for Civil Rights, Councilmember Lisa Herbold moved on Monday to postpone a bill that would make it easier for the City of Seattle to prosecute hate crimes. The council might take up the bill again in early June, after the city runs the proposal through a Racial Equity Toolkit (RET).
Members of No New Youth Jail Seattle had planned to pack the council chambers on Monday afternoon and speak out against the ordinance. In a Facebook post, citing the city's own analysis of the legislation, the group said the bill "contributes to the criminalization of black and native people" and will allow the city attorney and the Seattle Police Department to "exacerbate existing disparities of incarceration." The group will oppose the bill "unless the RET shows no disproportionate impacts to communities of color."
In the council briefing Monday, Herbold said she was fine with slowing down to address "the disproportionality of the offender population" mentioned in the city's analysis.
On the surface, progressive groups standing up to oppose hate crime legislation might sound counterintuitive, especially in a city dealing with a 400% spike in hate crimes. But the No New Youth Jail coalition and the city itself is arguing that giving prosecutors more tools to punish people for longer amounts of time—even people charged with hate crimes—may actually hurt the classes of people they're trying to protect.
Right Now, the City Doesn't Really Do Hate Crimes
Under current state law, county prosecutors can charge someone with a hate crime if they commit a felony against a member of a protected class just for being a member of that protected class. Those protected classes include "race, color, religion, ancestry, national origin, gender, sexual orientation, mental disability, physical disability, and sensory disability." So, in theory, if you're convicted of beating up a gay guy on Capitol Hill while hurling homophobic slurs at him, you're probably looking at more prison time.
But the city of Seattle can't do that. The city has no hate crime laws that protect those classes of people if they suffer misdemeanor-level offenses (e.g. property damage, simple assault, or harassment) as a result of just being black or gay or Jewish. The closest Seattle gets to a hate crime law is the city's "malicious harassment" charge, which the city attorney can pursue if someone assaults, harasses, or destroys the property of someone else based on their "homelessness status, marital status, political ideology, age or parental status."
Herbold's bill would add "race, color, religion, ancestry, national origin, gender, sexual orientation, mental handicap, physical handicap, and sensory handicap" to the list of classes the city protects under malicious harassments.
The new Seattle measure would also turn "malicious harassment" into a "special allegation of hate crime motivation." Right now, malicious harassment is treated as a crime the attorney's office must prove separate from the underlying charge. So if you kicked a gay guy's car on Capitol Hill because he was gay, you dick, you'd be charged with damaging property and then separately charged with "malicious harassment." Herbold's bill restructures the charge so that prosecutors can slap the hate crime on top of the property destruction charge and ask for a higher sentence. Furthermore, an amendment to the bill allows prosecutors to tack on a hate crime charge to "all misdemeanors or gross misdemeanors" under the Seattle Municipal Code—not just assault, harassment, and property destruction.
Finally, the bill would remove the "malice" requirement, so that prosecutors would only have to prove the alleged hate criminal intentionally—instead of intentionally and maliciously—hit someone because they were black, gay, Jewish, or what have you.
Well Okay, What's So Wrong With All That??
The city's own analysis of the legislation backs up concerns from the youth jail activists.
According to a staff memo issued last week, the city found that black people were "suspected of or arrested for malicious harassment at a rate 4.5 times their proportionate share of the Seattle population,” while Native American people were "suspected of or arrested for malicious harassment at a rate 6.2 times their proportionate share of the Seattle population.”
City staff admits that the number of actual cases of malicious harassment filed by the attorney's office has been very low—only seven cases since 2012. And a representative for the city attorney's office said everyone they've charged with malicious harassment since 2012 "was identified as 'W' (White), with the exception of one 'U' (Unknown)."
But the general idea here is that black and brown people are more likely to be disproportionally arrested for doing things in general, so adding a law that would potentially result in longer sentences might hit those groups harder. People included in these protected classes, of course, can commit hate crimes against one another and be disproportionally arrested for that.
Quoting statistics from the Seattle Police Department, the memo also shows that black people were the largest targets of hate crimes between 2016 and 2017, accounting for "over half" of all the incidents. Members of the lesbian and gay communities were the next largest targets.
The city concludes that giving the city prosecutor more power to prosecute hate crimes would probably add to inequities in the criminal justice system, and says it's "unclear" whether the policy would deter potential offenders or otherwise protect the classes of people the city is seeking to protect.
A representative for the No New Youth Jail Coalition agreed. "The story is that [hate crime legislation] protects targeted groups, but it has no deterrent effect," said Dean Spade of NNYJ. "It doesn't stop our targeted communities from being attacked, but it does give the prosecutors more tools in his tool kit to go for higher sentences, and we oppose the idea that sentencing more people to more time in prison is the way to make our community safer."
A spokesman from the city attorney's office said Herbold raised the concerns detailed in city's memo "last June," which is why she added amendments requiring the city attorney to track and report to the council demographic data about the defendants and victims of hate crimes, and also to divert people convicted of hate crimes to a "program...to educate persons committing the offense about the negative consequences of hate crimes or bias crimes committed against the protected class of the victim of the offense."
Update 5/23: Herbold, finally getting back to me after two requests for comment, reiterated her concerns about disproportional numbers of black offenders. The City Auditor report of state prosecutions for malicious harassment (which includes race, gender, sexual orientation, etc., among its protected classes), shows that 19% percent of hate crime perpetrators were black. Black people make up only 7% of Seattle's population. But Herbold also noted that 77% of hate criminals were white. That means whites, who account for 66% of Seattle's population, are also disproportionally arrested for committing hate crimes. "The math between the City Auditor data and the Central Staff memos is not aligning for me," she said.
To help explain why white people are being arrested for hate crimes at disproportionate rates, Herbold points to analysis in the City Auditor report from University of Washington professor Tim Thomas, who finds that "hate crimes tend to occur in minority mixed neighborhoods along the border of mostly white neighborhoods," and that "a majority of these crimes can be explained by the racial threat hypothesis, i.e. the perceived encroachment of people of color in white dominated areas."
She also drew a contrast between her bill and the state's new hate crimes bill, which drastically increases fines for perpetrators, saying that hers doesn't increase fines but instead relies on restorative programs. "My proposed legislation would apply only to those already facing other charges; it would not add any new defendants to the criminal justice system," she said.
The city's memo, however, says the city attorney's office "anticipates asking for higher sentences within the sentencing range in those cases where they can prove the special allegation" of a hate crime. So, while Herbold's legislation might not add any new defendants, and while people charged with hate crimes might be diverted into anti-hate programs, some defendants might face longer sentences.
What Do the Wannabe Seattle City Council Members Think We Should Do?
In response to this recent spike in reported hate crimes, most of which were concentrated in "high traffic areas, areas of dense demographic diversity, and along the borders of racially diverse neighborhoods," candidates running for office in District 3 raised questions about ways to address the issue and LGBTQ safety on Capitol Hill at the MLK Labor Council candidate forum.
Some thought the Hill was relatively safe compared to earlier decades while others thought it wasn't safe enough. When reached for comment, none of them were enthusiastic about the hate crimes bill in its current form.
In a statement, Councilmember Kshama Sawant acknowledged the rise in hate crimes both locally and nationally, but said it was "the City Council’s responsibility to fully discuss with community members before voting on legislation that could potentially negatively impact marginalized communities." She added that she's "heard from many community leaders and activists concerned about the proposed hate crimes legislation."
Ami Nguyen, a King County public defender gunning for Sawant's seat, said in an email "the City Council needs to invest in making everyone feel welcomed and safe in the community, this includes more community policing."
Capitol Hill Chamber of Commerce director Egan Orion praised Herbold for delaying the hearing on the bill. "The current bill...was rushed through and as written, could’ve compounded trauma with injustice," he wrote.
Orion added that he'd be "happy to explore restorative justice techniques for perpetrators" but would rather "write policy that prevents these hate crimes from happening in the first place and helps heal after the crime has taken place."
In an email, Seattle Public School Board member Zachary DeWolf, who thought the Hill wasn't safe for LGBTQ communities, agreed with the No New Youth Jail activist's read on the situation, and said the legislation "doesn’t necessarily make LGBTQ communities safer."
He also offered a lengthy list of potential alternatives to reducing the number of hate crimes in Seattle, including hosting community forums before and after Pride Festival "to share concerns, identify preventive measures, and generate action-oriented solutions to mitigate hate violence and require key government officials (council members, state legislators, and SPD community service officers) attend."
He also wants to "track enforcement of anti-LGBTQ hate crimes; train all first responders to greet community members using gender-neutral language and adhere to their pronouns throughout reporting and post-report data analysis; compile a quarterly report that tracks all anti-LGBTQ incidents including date, time, location, and context of incident, to be in alignment with transparency goals; remove required education from job descriptions and use measurable skills to replace this gatekeeping hiring practice that reduces the ability for LGBTQ folks and people of color from accessing jobs; make Capitol Hill an actual LGBTQ neighborhood more like the Castro or Boystown where there are more clear markers and historical elements, etc., to illustrate that the neighborhood is for queer folks; collaborate with and fund community-based organizations to build bridges and create community-centered solutions to LGBTQ-phobia and anti-LGBTQ hate violence and crimes." So there you have it.