Anti-gay crimes rarely prosecuted in Texas by name
Published: June 27, 2012
"I feel for the family, they're inconsolable in their grief. They wanted more, but the hate-crime allegation wouldn't have gained us anything. It only added an extra burden to our case."
Clattenburg's case may help explain the two very different pictures emerging from state data tracking hate crimes in Texas. In 2001, the year Texas' revamped hate crimes law passed the Legislature, the Texas Department of Public safety reported that local law enforcement agencies saw over 400 hate crimes. Since then, the annual number has steadily dropped to under 200 annually — 2010 saw 168 reported hate crimes across the state, a slight increase from the year before. San Antonio police reported five hate crimes in 2010, and only one case last year, according to department numbers.
But as the Austin American-Statesman first reported this year, there is a "gaping disconnect" between those numbers and how often the state's hate law has actually been used in prosecution.
Since 2001, prosecutors have secured hate crimes convictions in only 11 cases, according to Texas' Office of Court Administration. The two most recent convictions were handed down this year in northeast Texas against two men who assaulted Burke Burnett, a gay man, at a Halloween party, stabbing him multiple times with a beer bottle, throwing him onto a fire, and yelling slurs like "pussy-ass faggot" and "cock-sucking punk." States like California and New York prosecute as many as a dozen hate crimes each year.
"There just have not been enough prosecutions under Texas' law, that much is clear," said Chuck Smith, executive deputy director with Equality Texas.
Although some crimes may appear bias-motivated, proving that beyond a reasonable doubt can make prosecutors nervous when considering hate crimes charges, said Robert Kepple, executive director of the Texas District and County
Attorneys Association. "Try proving that motivation beyond a reasonable doubt. That's very difficult. That's the nature of the beast. Sometimes it's just not practical, and it may jeopardize your underlying case," he said.
When University of Houston professor Beverly McPhail surveyed prosecutors' feelings on the new law in 2006 for her doctoral dissertation, she found their reactions decidedly mixed. While more than half viewed Texas' hate crimes law as a potentially useful, albeit limited, option, a small group derided the law as the "political correctness law," she wrote.
Still, advocates say there's reason to push for hate crimes prosecutions even when such charges don't enhance the penalty doled out. A hate-crime conviction may influence a parole board when considering early release, including potentially setting stricter conditions for release. It's also important to send the message that communities acknowledge and react harshly to bias-motivated crimes, said Smith. "There is value there among victims, and there's value to that among families of victims," he said. "I think that in many cases families would find some level of contentment if there was some sort of a public acknowledgement that, yes, this was a bias-motivated crime."
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