Homing the Homeless Through Hate Crime Statutes?

One summer day of 2005, two teenage boys beat a homeless man dead in the woods some 55-miles northeast of Orlando, Florida. The murder of Michael Roberts, the 53-year-old victim, may have gone unnoticed were it not for the fact that his killers tried to showcase his body to a teenage girl, who, instead of being impressed, had her mother call the police. After an initial beating, the teenagers—one fourteen, the other eighteen, both high on pot—had dragged Roberts to their play fort, where they continued to assault him ruthlessly. The lethal blow was delivered by one of the boys jumping on a log placed across the man’s ribs.

With this recent wave of hate crimes legislation, Spain, too, has joined the trend toward what Paris-based writer Theodore Darlymple once called, “our ever-more expansive search for hate crimes.”

Roberts’ murder is one in a long series of wantonly violent acts against the homeless perpetrated by underage kids “bored and looking for something fun to do” (as the court records gathered). When, in rarer cases, they are perpetrated by adult defendants, the attacks appear to only grow in gruesomeness, escalating to rape and arson (as in a recent case from May this year in Washington, D.C.).

Elevating this genre of violence to the category of a hate crime has long been a federal priority for homeless rights advocates. In 2007, a legislative vehicle to just that effect was introduced in Congress: the Hate Crimes Against the Homeless Enforcement Act. The Act, which would add the homeless population as a potential class victimized by hate crimes, has received support from all major advocacy groups working on homelessness. Other identity categories (religious, ethnic, and gay communities) were already recognized as potential hate crime victims by the Violent Crime Control and Law Enforcement Act of 1994; the later bill sought to amend and expand upon those categories. At the state level, seven precedents have established hate crime protections for homeless individuals: Puerto Rico, Washington, Florida, Maine, Maryland, Rhode Island, and Washington DC. Until now, however, there have been no models for such reform at the federal or national level.

Earlier this summer, Spain became that national-level precedent—with a slight, but interesting variation. The recent amendments to Spain’s penal code are meant to address a similar pattern of violence and intimidation towards the un-housed in Spain, but they’ve had to cast a wider net to achieve political consensus. The bill addresses a larger phenomenon of aporophobia, or, “feeling of fear or an attitude of rejection towards the poor, those who lack means or the helpless.” Any act deemed to stem from that feeling has been declared a hate crime in Spain.

Incidentally, the amendment was only one piece of a broader package of hate crime protections; age-based discrimination is also legislated into a hate crime in Spain’s bill. Both the underage and seniors have been lumped into the new cohort of potential victims. With this recent wave of hate crimes legislation, Spain, too, has joined the trend toward what Paris-based writer Theodore Darlymple once called, “our ever-more expansive search for hate crimes.”

[caption id="attachment_183316" align="aligncenter" width="1920"] Homelessness in San Francisco.[/caption]

THE ACADEMIC-SOCIAL-JUSTICE COMPLEX STRIKES AGAIN

Like the amendment it underpins, aporophobia is a Spanish invention. Etymologically, it translates from the Greek as a “fear of those lacking a way out.” The term was coined in the 1990s by ethicist and philosophy professor Adela Cortina. Cortina lobbied the linguistically conservative Royal Spanish Academy (Real Academia de la Lengua Española or RAE) for almost 25 years for the word’s inclusion in its authoritative dictionary of the Spanish language. On December 20th, 2017, the RAE acquiesced. Barely a week later, the Fundéu or Fundación del Español Urgente (an RAE-linked watchdog covering novel journalistic coinages) celebrated the neologism as word-of-the-year, along with a novlangue of woke watchwords such as “microplastic,” “populism,” and “escrache” (a form of mob protest that involves gathering around a politician’s home for public shame, which has become the latest Spanish export to America throughout our 2020 summer of unrest). 

"Those who produce real phobia aren't so much foreigners or those of different races, but the poor," she asserts.

Neither the coining of aporophobia, nor the fabrication of hate crimes legislation out of it, have occurred in Spain by coincidence. The country is at once a haven for 81 million tourists every year (mostly flocking to its southern and eastern shores in search of sun, making tourism the bedrock of Spain’s economy), while also being home to a homeless underclass estimated at 40,000. That estimate is modest but continued to swell in the wake of the 2008 recession, which boded particularly harsh for Spain’s precarious labor market. 

Seven years later, during the EU’s migrant crisis, Spain was allotted a comparatively small quota of under 10,000 refugees to relocate. Its population nonetheless mirrored the broader European trend and turned more restrictionist, growing wearier of further inflows of immigrants. In a country that so readily welcomes many times that number in wealthy visitors every year, academics such as Cortina were genuinely at a loss to explain what they regarded as a “nativist turn.” Cortina’s solution was to look for an overarching rationale to explain her fellow Spaniards’ attitude towards migrants with reference to their attitude towards the larger underserved population in Spain.

It isn’t xenophobia; it’s aporophobia! That was the “gotcha” epiphany that boosted Adela Cortina’s 2017 manuscript, Aporophobia: Rejecting the Poor, to bestselling fame, and propelled her linguistic invention to the accepted lexicon of woke jargon. "Those who produce real phobia aren't so much foreigners or those of different races, but the poor," she asserts. In our modern-day societies (which Cortina describes as “hyper-contractual”), the organizing principle isn’t so much one of voluntary exchange as one of reciprocation. According to Cortina, almost every instance of social interaction in contemporary life is conditioned on the expectation of receiving some good in return for one’s contribution. "In our daily lives," she wrote in an op-ed in 2006, "the supreme organizing principle is that of exchanging stuff." In this mode of social life, those deemed too impoverished to have anything to contribute are altogether excluded out of the societal marketplace. The inability to fulfill one's individual needs—most especially putting a roof over one's head—is destitution's ultimate marker.

As homeless rights advocates have come to understand it, anti-homeless violence is only the tip of the aporophobic iceberg—an ugly manifestation of our all-too-common aversion towards the poor. This is why their calls to define it as a hate crime often come cloaked in the logic of social justice advocacy, blaming homelessness squarely on society’s “structural” failure to provide universal housing for all. In their view, this stinginess is expressed in almost every other inequality (hence demands for “medicare for all” or “universal basic income for all”). It’s this structural stinginess that Cortina calls on us to altogether “abolish” in the 21st century. In 2018, Cortina (by then, an academic celebrity of sorts) was drafted to advise Spain’s left-wing government as it worked to design the recent hate crimes bill, legally elevating anti-homeless violence to the category of hate crime on par with antisemitism and racism. 

As homeless rights advocates have come to understand it, anti-homeless violence is only the tip of the aporophobic iceberg—an ugly manifestation of our all-too-common aversion towards the poor.

You may think Spain is too far away, or that Cortina's thought is too radical, for the U.S. to pattern its policy on hate crimes around the precedent that Spain just set. And you would be right in hoping so, but it seems that a similar trend towards expanding the domain of hate crimes into homelessness has long been at work in America.

The National Coalition for the Homeless (NCH), a leading advocate on homelessness in the U.S., openly recognizes that calling anti-homeless attacks "hate crimes" would be a largely symbolic victory. It would achieve very little to fix the underlying ill of homelessness that the NCH exists to combat. “Hate crimes will end when we reject the choice of averting our eyes or crossing the street, accept the choice of helping those in need and provide future assurances that additional resources will be provided,” reads the foreword to a 2012 NCH report by the Coalition’s Executive Director Neil J. Donovan. Still, these homeless rights advocates who are devoted to abolishing homelessness seem intent on symbolically categorizing anti-homeless violence as a hate crime.

[caption id="attachment_183315" align="aligncenter" width="1920"] Homelessness in Portland.[/caption]

“HOUSING FOR ALL” BECOMES “HATE CRIMES PROTECTIONS FOR ALL”

Also known as “bias crimes,” hate crimes are legal constructs that protect individuals whose conscious membership in a particular group makes them a target of violence. In the U.S., talk of hate crimes as a specific category of crime began in the legal community in the 1980s. The first federal initiative aimed at monitoring their occurrence was passed in 1990. Initially, the concern was to provide specific protection for minority groups designated by religious, racial, and national or ethnic background; eventually, the protections expanded to encompass gender, disability, and sexual orientation. In 2009, U.S. President Obama signed into law the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, extending the definition of hate crimes to include violence against gays, women, the transgendered, and the disabled. 

"Now everyone can look for hate in men's motives behind a violent act, and his attempts, however inaccurate, fantastic, or self-interested, have legal force."

Starting as early as 1983, however, states had begun journeying into that same expansive direction. By the time the 2009 Hate Crimes Act was signed into law, 46 states already had similar state-level legislation mirroring the 2009 federal bill. Even then, many questioned the rationale of this expansion, pointing to, for instance, the problem with equating violence against religious communities with violence against the disabled. Whatever its flaws, one common denominator still obtained that justified including these new groups under the hate crime umbrella: their members’ self-identification around characteristics that are considered “immutable.” Barring religious conversions, faith tends to remain fixed.

Homelessness, however, is actually a negative characteristic that individuals tend to seek escape from. That distinction is why opponents have contested squeezing homelessness into the list of protected categories. They argue that this opens us up to a future wherein any other group subject to violence can claim the same unique protections. Theodore Darlymple, making the same argument in a U.K. context, wrote sarcastically that "now everyone can look for hate in men's motives behind a violent act, and his attempts, however inaccurate, fantastic, or self-interested, have legal force."

That homelessness is a mutable characteristic, one that society in fact leverages a whole arsenal of policies to effectively eradicate, is of little importance to those who advocate for opening this Pandora’s box. Instead, these activists focus on how offenders view their homeless victims at the specific time they attack them—regardless of the latter’s chances of eventually overcoming that condition. It also doesn’t matter that the lack of a roof over one’s head is a blurry category, one that doesn’t apply equally to all (think of those having to sleep in their car or at a relative’s during a stint of joblessness, as opposed to those forced to sleep under a bridge or on a sidewalk). The homeless even lack the cohesiveness that binds together every other group that currently benefits from hate crime protections, but not even this seems to register in advocates’ enthusiasm for hate crime legislation. These advocates seem intent on constructing a sort of homeless in-group mentality—even though their constituents want the exact opposite, expressing a feeling of shame at being associated with others in their same temporary misfortune. 

The homeless even lack the cohesiveness that binds together every other group that currently benefits from hate crime protections, but not even this seems to register in advocates’ enthusiasm for hate crime legislation.

This self-stigma can explain why the homeless tend to under-report their own victimization, which greatly undermines whatever gains that could be made from hate crimes protections. In fact, the ratio of reported cases to the estimated total remains roughly the same in the seven states that have “sent the message that anti-homeless violence won’t be tolerated” by categorizing it as a hate crime in state statutes. This statistical under-counting has stubbornly persisted, as almost every major NCH paper reckons: "the number of incidents collected by the NCH under-represent the actual count of crimes committed against homeless individuals," reads the group's January 2012 report. This is even after a bill co-sponsored by Senators Cardin (D-Maryland) and Collins (R-Maine) was passed in 2009, requiring the FBI to add a homeless category to federal data collected on hate crimes. (There is also the estimated predominance of homeless-on-homeless violence, which could dwarf attacks from housed defendants, but also goes largely missing in most of the data reported by the NCH and other advocacies.) Despite all efforts to counter it, the rate of under-counting has barely budged, suggesting that self-stigma plays a larger role in under-reporting than the outer world’s supposed aporophobia.

In a nutshell, the argument for extending hate crime protections to the homeless may be well-intentioned—at the end of the day, it'd take a special level of meanness to make these populations any more vulnerable than they already are. But legal terms have special meanings, and the road to hell is paved with good intentions.

[caption id="attachment_183313" align="aligncenter" width="1920"] Homelessness in Washington D.C.[/caption]

TARGET VIOLENT CRIMINALS FOR WHAT THEY DO, NOT FOR WHAT THEY THINK

It is nowhere contested that homelessness entails vulnerability, and that the depraved minds targeting that sorry condition with wanton violence ought to be punished with maximum severity. The crux of the matter, however, is whether explicit designation in hate crime statutes is an appropriate way to confer the necessary protection from this violence. 

Anti-homeless attackers seize on victims they deem particularly vulnerable to get away with their violence, but that vulnerability is generic, as opposed to the targeting of a specific ethnicity or religion.

Even if we were to leave aside the mutability and self-stigma around homelessness, legal scholars have argued that if anti-homeless violence were to be categorized as a hate crime, it would dilute the concept’s meaning. As an alternative, Katherine B' O'Keefe wrote for the William and Mary Law Review that, "vulnerable victim sentencing guidelines provide a viable and preferable alternative to hate crime statutes for protecting the homeless against violent crimes." These guidelines advise judges and prosecutors as to the added degree of severity to punish offenders to deter future offenses. Besides being easier to implement than legislative changes to criminal law, these guidelines get around the definitional conundrum of what exactly constitutes a hate crime. Sentencing guidelines confer protection based not on the condition of homelessness, but on the vulnerability that derives from it.

This alternative strategy also reckons with the fact that attacks on the homeless are categorically unlike antisemitic or racist attacks; they’re not discriminatory per se, but rather opportunistic crimes. Anti-homeless attackers seize on victims they deem particularly vulnerable to get away with their violence, but that vulnerability is generic, as opposed to the targeting of a specific ethnicity or religion. This makes these offenses no less depraved, but the two motives should remain legally distinct. Vulnerable victim sentencing guidelines had been successfully deployed for years to protect the elderly and the disabled individuals in several U.S. states and European countries—before the campaign to inflate hate crime statutes engulfed them too. In 2015, the state of Alaska explicitly designated homelessness as a factor of vulnerability in its sentencing guidelines. By doing so, the state has spared itself the national spotlight when attacks have taken place against its homeless population, while, at the same time, ensuring that Alaskan prosecutors have all the legal means they need to punish criminals with the appropriate severity. The state's strategy suggests a middle ground that could be replicated at the federal level between hate crime categorization and generic guidelines. 

But perhaps the biggest downside to conferring hate crime status is that—as Nicole Gelinas wrote in City Journal about an unrelated matter—"police and prosecutors should be targeting violent criminals for what they do, not for what they think.” 

None of this contradicts the charge that our society is failing the homeless, nor even that it may be failing to protect them from random, brute violence. But the case for over-expansive hate crime statutes to protect new groups remains as lacking as ever. In Spain, it took a leftwing pop philosopher, her vague neologism, and the bourgeois do-goodism it inspired to effect this misguided change. Under a Joe Biden presidency, there will be little standing in the way of more U.S. states—or even the federal government—from following suit.