The tone across social media, newspapers, and perhaps even in your circle of friends these past few months might seem particularly divisive. Racial tensions continue to grow, and the FBI has reported that incidents of hate crimes in the last year have been on the increase. Unfortunately, in Manhattan, it is no different.
This week, Lashawn Marten was sentenced to 25 years for assaulting three people, ending in one fatality. Mr. Marten was a regular in Union Square, playing chess with his friends. He bragged that he would knock out the next white person who passed him. He assaulted three people in short succession, one of whom struck his head on the pavement. He was declared clinically brain dead and died a few days later. A second victim received a broken rib and memory loss, while his third victim sustained minor injuries. The City of New York charged Mr. Marten with a hate crime, citing that his motivation for targeting victims was solely on the basis of the color of their skin.
New York City has had to be particularly vigilant about hate crimes lately, as statistics show there has been an increase in attacks. In line with the racial violence, after the Charlottesville protest where a woman was killed when a white nationalist ran her over with his car, the NYPD admitted that they were concerned about white nationalist violence as well. As a foil to Mr. Marten’s crime, James Jackson, a white veteran, was arrested in May of this year for a hate crime after he was accused of stabbing a black man to death. He claimed it was “practice” for a larger assault he planned to carry out against black people in Times Square. The New York District Attorney’s office charged him with terrorism as well as an illegal weapons possession charge, and he could face life in prison if convicted.
In New York, Penal Law §485.05 provides that a hate crime is any crime against a victim who was targeted because of their age, ancestry, color, disability, gender, national origin, race, religion or sexual orientation. The hate crime label is simply an element that could increase sentencing, and it can be applied to a number of either felony or misdemeanor crimes. Certain charges can be raised by one level if it is labeled as a hate crime. So, for instance, class B misdemeanors could become Class A misdemeanors, and a Class C felony would be bumped up to a Class B felony. The state has a heavy burden, having to show that these factors weren’t just present in the commission of the crime, but they were the primary motivation for the accused to do so. They would need to show that the circumstances of the case made it a hate crime. So, for example, in the two cases discussed here, each of them made statements either during or immediately before their attacks that were racially motivated. Importantly, it does not matter if someone intended to commit a crime motivated by hate and were mistaken – just that their motivation was hate. For instance, if a person wanted to attack a temple because they were anti-semitic, but instead accidentally blew up a school instead, this would be a hate crime because their intent was based on religious hate.
Given the recent increase in hate crimes in New York City, it seems inevitable that the litigation of hate crimes will increase in the next few months. Law enforcement is having difficulty keeping up, and the state has a heavy burden to carry. Even if hate crime goes up, it seems questionable that convictions and arrests would follow suit.