Pennsylvania Must Address

the Rise of Hate Crimes

Anti-hate crimes proposals have been around for a long time in Pennsylvania, but the 2018 synagogue shooting in Pittsburgh inspired us to go back to the drawing board and create four bills that would not only update Pennsylvania’s hate crime statute to be fully inclusive of all protected identity characteristics, but also prioritize education and training to improve reporting and center the voices of impacted communities in the courtroom.

The FBI’s most recent report on hate crimes revealed not only the highest number of reported crimes in more than two decades, but also that hate crime offenses across the country were more violent than in previous years. 

We can – and must – do better. 

We cannot legislate what is in people’s hearts. But we can take steps to lead by example and ensure that mechanisms are in place to support targeted communities across Pennsylvania who are impacted hate-fueled criminal acts. And we can send a message to those who would target others simply because of their protected identities – that we, as a society, will not tolerate such acts and will stand with those impacted.  

We propose enacting a robust update to Pennsylvania’s hate crimes laws by expanding the list of protected identity characteristics to include sexual orientation, gender identity, and disability, giving targets of hate crimes stronger civil remedies in the courtroom, increasing training for police and educators, encouraging the reporting of hate-based incidents in schools, and providing a mechanism by which those convicted of hate crimes can perform community service or attend classes related to the motivating factor in the crime.

FAQ about the Anti-Hate Crimes Package

There has been some confusion and misinformation surrounding the anti-hate crimes legislative package, which will be coming up for a vote in the PA House. Below are some FAQs that will help explain the purpose for the legislation and what it will and will not do. 

Will these laws interfere with my ability to express unpopular or controversial views?

No. The First Amendment protects bigoted speech, unkind speech, unpopular speech and hate speech. The U.S. Supreme Court affirmed these principles in the case of R.A.V. vs City of St. Paul in 1992.  

One year later, in Wisconsin vs. Mitchell, the court unanimously upheld the constitutionality of Wisconsin’s hate crime law, because, as then-Chief Justice Rehnquist reasoned, a hate crimes statute “is connected to underlying conduct, such as assault or vandalism, that is not protected by the First Amendment.”   

Indeed, hate crime laws only apply in cases where there is an underlying criminal offense.  They do not criminalize speech or thought.

The amendments to Pennsylvania’s hate crime laws proposed in the Anti-Hate Crimes Legislative Package are intended to better align Pennsylvania’s statute with the Wisconsin model. 

Will these laws interfere with my ability to express my religious views?

No, your religious expression is also fully protected by the First Amendment.

To ensure that there could be absolutely no confusion about the impact of the legislation on these protections, the bills also include this provision:

Nothing in this section may be construed to prohibit, limit or punish religiously motivated speech or conduct that is otherwise protected by the Constitution of the United States, the Constitution of Pennsylvania or the Act of December 9, 2002 (P.L.1701, No.214), known as the Religious Freedom Protection Act.

But, what if the government tries to weaponize anti-hate crimes laws against individuals with unpopular opinions?

Our current Ethnic Intimidation statute -- which provides protections for people who are targeted based on race, color, religion, or national origin -- has been in place for 40 years, and these kinds of unintended consequences have not come to pass.

Nor have we seen these concerns play out in jurisdictions outside of Pennsylvania. Forty-six other states and the District of Columbia have anti-hate crimes laws. Our federal hate crime laws have included comprehensive protections (including protections for people who are targeted based on sexual orientation, gender identity, and disability) since 2009. Thirty other states include sexual orientation among their protected identity characteristics, and 32 include disability as a protected identity characteristic.

Thirty-one states and the District of Columbia have statutes creating a civil cause of action, allowing hate crime victims to seek civil remedies in court. 

This legislation would simply align the list of protected identity characteristics in Pennsylvania’s hate crime statute with those contained in federal law, which includes groups that are disproportionately targeted by such crimes in the first instance. After that, it would improve education and training for law enforcement, encourage better reporting in schools, and make sure that impacted communities have a voice in the courtroom. 

What about concerns with respect to the legislation contributing to mass incarceration or the over policing of black and brown people in Pennsylvania? 

While we believe that crimes that have been proven to be bias-motivated should be considered with increased seriousness due to the harm to the broader community, we remain very concerned about the impact of racial bias in the criminal legal system and in the enforcement of hate crime laws.  Our primary objective through this package was to ensure that Pennsylvania’s hate crime statute is comprehensive and fully inclusive, providing protections for all people in Pennsylvania who may be targeted based on their protected identity characteristics. Our legislative package does not make any amendments to the grading section of Pennsylvania’s ethnic intimidation statute 

We also emphasized educational and data collection components in this legislation to focus on hate crime prevention, as well as more comprehensive law enforcement training, including with respect to enforcement-related bias.

If this anti-hate crimes package only addresses crimes that are already illegal, why do we need hate crimes laws at all? 

Sometimes, vandalism takes the form of a person spray-painting graffiti on the side of a building.  That’s a crime with a clear victim and a quantifiable price tag, and our justice system knows how to address it. But what if it’s a racial-slur on the side of a mosque? The harm – the intended harm – is much broader, and the damage much harder to assess and repair. 

The white supremacist who murdered 11 Jewish people as they worshipped in their Pittsburgh synagogues in 2018 was not angry with those specific individuals. He was expressing rage against Jews and immigrants everywhere. He attacked their collective sense of safety, and their confidence that they were full members in the broader community.

Secondly, hate crimes in Pennsylvania are chronically underreported and misclassified. This leads to poor data and hinders law enforcement’s prevention and response efforts. More training and education for police and educators will lead to better research, so we can more effectively combat the growing scourge of hate crimes.  

Don’t hate crimes laws punish “thought crimes?”

No.  Hate crimes laws, like antidiscrimination laws, do not violate free speech rights because even if bias is present, absent the prohibited conduct there would be no legal sanction.

Separately, intent has long been a relevant consideration in our criminal legal system – particularly at the time of sentencing.  Just as there are different degrees of homicide based on intent, legislatures can treat crimes involving the targeting of victims based on immutable characteristics as distinct from the underlying crimes themselves.