BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator Bruce McPherson, Chair A
2003-2004 Regular Session B
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4
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AB 2428 (Chu) 8
As Amended April 20, 2004
Hearing date: June 15, 2004
Penal Code
JM:mc
HATE CRIMES -
PROBATION AND PAROLE CONDITIONS AND PROTECTIVE ORDERS
HISTORY
Source: Asian Pacific American Legal Center and Chinese for
Affirmative Action
Prior Legislation: SB 911 (Marks) - Ch. 876, Stats. 1995
AB 1928 (Jackson) - Ch. 842, Stats. 2002
SB 257 (Kuehl) - Ch. 890, Stats. 2001
AB 1312 (Nakano) - Ch. 566, Stats 2001
Support: Attorney General; Anti-Defamation League; Asian
Americans for Civil Rights and Equality; Asian Law
Alliance; Asian Pacific American Bar Association;
Asian Pacific American Legal Center of Southern
California; Asian Pacific Policy & Planning Council;
Bishop of Episcopal Diocese of California; Asian
American Drug Abuse Program; California Conference of
the NAACP; California National Organization for Women;
California Sikh Council; Chinese American Citizens
Alliance; Chinese American Citizens Alliance of Orange
County; Chinese for Affirmative Action; Council on
American Islamic Relations; Filipino-American State
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Employees Association; Guru Nanak Sat Sangat of
California; Housing Rights Center; Korean American
Federation of Orange County; Korean Resource Center;
Los Angeles Commission on Human Relations; Los Angeles
County Board of Supervisors; Los Angeles Gay and
Lesbian Center; Mexican American Legal Defense and
Education Fund; Muslim Public Affairs Council;
National Taiwanese American Citizens League; Office of
the Lieutenant Governor of California; Orange County
Asian and Pacific Islander Community Alliance; Orange
County Taiwanese American Citizens League; Orange
County Taiwanese Association; Organization of Chinese
Americans, Greater Los Angeles Chapter; Pak Global
Trading Company; Treasurer of the State of California;
South Asian
Network; Taiwanese Chamber of Commerce in Orange
County; Vietnamese American Public Affairs Committee,
So. CA Chapter; Los Angeles Urban League Twelve
Individual Citizens
Opposition:None known
Assembly Floor Vote: Ayes 77 - Noes 0
KEY ISSUES
WHERE A DEFENDANT IS GRANTED PROBATION AFTER CONVICTION OF A HATE
CRIME -- AS DEFINED BY STATUTE OR THE DEFENDANT'S MOTIVES -- SHOULD
THE COURT, ISSUE A PROTECTIVE ORDER AS A CONDITION OF PROBATION,
ABSENT COMPELLING CIRCUMSTANCES?
WHERE A DEFENDANT IS RELEASED ON PAROLE AFTER IMPRISONMENT FOR A
HATE CRIME, SHOULD A PROTECTIVE ORDER BE INCLUDED AS A CONDITION OF
PAROLE, ABSENT COMPELLING CIRCUMSTANCES?
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WHERE A DEFENDANT IS RELEASED ON PAROLE AFTER IMPRISONMENT FOR A
HATE CRIME, SHOULD THE PAROLE AUTHORITY HAVE THE POWER AND
DISCRETION TO ORDER THE DEFENDANT TO COMPLETE RACIAL OR ETHNIC
SENSITIVITY TRAINING, OR A ONE-YEAR COUNSELING PROGRAM TO REDUCE
VIOLENT OR ANTISOCIAL BEHAVIOR, AS A CONDITION OF RELEASE, IF
SUCH TRAINING IS AVAILABLE?
WHERE THE DEFENDANT WAS FOUND NOT GUILTY BY REASON OF INSANITY
(NGI) OF A HATE CRIME, SHOULD THE COURT, ABSENT COMPELLING
CIRCUMSTANCES, ISSUE A PROTECTIVE ORDER FOR THE VICTIM WHERE THE
NGI PATIENT IS RELEASED ON OUTPATIENT STATUS?
IN NGI OUTPATIENT HATE CRIME MATTERS, SHOULD THE COURT BE
AUTHORIZED TO REQUIRE THE PATIENT TO ENGAGE IN RACIAL
SENSITIVITY COUNSELING OR TRAINING AS A CONDITION OF OUTPATIENT
RELEASE?
PURPOSE
The purposes of this bill are to 1) require the court, except
where compelling circumstances exist, to issue a protective
order for the victim of a hate crime where the defendant is
granted probation; 2) require a protective order for the victim
as a condition of parole for an inmate convicted of a hate
crime, except where compelling circumstances exist; 3) provide
specific authority for racial or ethnic sensitivity training, or
other related counseling, for probationers and parolees who were
convicted of hate crimes; 4) require the court in a case where
the defendant, charged with a hate crime, is found not guilty by
reason of insanity, to issue a protective order for the victim
when the NGI patient is released on outpatient status; 5)
authorize a court to order a person who was found not guilty of
a specified hate crime by reason of insanity to undergo racial
sensitivity training or related counseling as a condition of
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outpatient release.
Existing law provides that it is a misdemeanor, punishable by up
to one year in county jail and/or a fine up to $5,000 and a
minimum of community service up to 400 hours, for a person to do
either of the following:
By force or threat of force, willfully injure,
intimidate, interfere with, oppress, or threaten any other
person in the free exercise or enjoyment of any right or
privilege secured to the other person by the Constitution
or laws of California or by the Constitution or laws of the
United States because of the other person's actual or
perceived race, color, religion, ancestry, national origin,
disability, gender, or sexual orientation. (Pen. Code
422.6, subd. (a)); or,
Knowingly deface, damage, or destroy the real or personal
property of any other person for the purpose of
intimidating or interfering with the free exercise or
enjoyment of any right or privilege secured to the other
person by the Constitution or laws of California or by the
Constitution or laws of the United States, because of the
other person's actual or perceived race, color, religion,
ancestry, national origin, disability, gender, or sexual
orientation. (Pen. Code 422.6, subd. (b).)
Existing law provides that unless punished under Penal Code
section 422.6, it is an alternate felony-misdemeanor (punishable
by 16 months, 2 or 3 years in state prison or up to one year in
county jail respectively) and/or a fine not exceeding $10,000,
to interfere with another person's free exercise or enjoyment of
any right or privilege secured to the other person by the
Constitution or laws of California or by the Constitution or
laws of the United States through the use or threat of force to
injure, intimidate, interfere with, oppress, or threaten another
person; or the defacing, damaging, or destroying real or
personal property of another person because of the person's
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actual or perceived race, color, religion, ancestry, national
origin, disability, gender or sexual orientation, under any of
the following circumstances:
The crime, if against a person, includes the present ability
to commit a violent injury or causes actual physical injury;
The crime, if against property, causes damage in excess of
$500; or,
The defendant has a prior conviction under Penal Code section
422.6 or a prior conviction for conspiracy to commit a
misdemeanor under Penal Code section 422.6. (Pen. Code
422.7.)
Existing law provides that a person who commits or attempts to
commit a felony because of a victim's actual or perceived race,
color, religion, nationality, country of origin, ancestry,
disability, gender, sexual orientation, who is not punished
pursuant to Penal Code section 422.7, shall receive an
additional term of one, two, or three years in the state prison,
at the court's discretion. (Pen. Code 422.75, subd. (a).)
Existing law provides that a person who commits or attempts to
commit a felony against the property of a public or private
institution, including a school, place of worship, or offices of
an advocacy group, because the property is identified or
associated with a person or group of an identifiable race,
color, religion, nationality, country of origin, ancestry,
gender, disability, or sexual orientation, and who is not
punished pursuant to Penal Code section 422.7 or Penal Code
section 422.75, subd. (a), shall receive an additional term of
one, two, or three years in the state prison, at the court's
discretion. (Pen. Code 422.75, subd. (b).)
Existing law provides that a person who commits or attempts to
commit a felony because of the victim's actual or perceived
race, color, religion, nationality, country of origin, ancestry,
gender, disability, or sexual orientation, and who voluntarily
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acted in concert with another person, and who is not punished
pursuant to Penal Code section 422.7 or Penal Code section
422.75(a) or (b), shall receive an additional term of two,
three, or four years in the state prison, at the court's
discretion. (Pen. Code 422.75, subd. (c).)
Existing law provides that a person punished pursuant to Penal
Code section 422.75 also shall receive an additional one year in
the state prison for each prior felony conviction of a crime
committed because of the victim's actual or perceived race,
color, religion, nationality, country of origin, ancestry,
disability, or sexual orientation, or because the defendant
perceived that the victim had one or more of these
characteristics. (Pen. Code 422.75. subd. (e).)
Existing law provides that a person granted probation for a
violation of Penal Code sections 422.6, 422.7, 422.75, 594.3, or
11411 may be ordered to do one or all of the following:
Complete a course or program on racial or ethnic sensitivity,
a similar training on civil rights, or training intended to
reduce violent or anti-social tendencies;
Make payments or compensation to a community-based
organization that provides services to victims of hate-related
violence; and/or,
Reimburse the victim for counseling or other expenses that
accrue as a direct result of the defendant's actions. (Pen.
Code 422.95, subd. (a).)
Existing law provides that any person who knowingly commits any
act of vandalism to a church, synagogue, building owned and
occupied by a religious educational institution, other place of
worship, or a cemetery, and which is shown to have been
committed by reason of the race, color, religion, or national
origin of an individual or group of individuals for the purpose
of intimidating and deterring persons from freely exercising
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their religious beliefs is guilty of a felony, punishable by
imprisonment in the state prison for 16 months, 2 or 3 years.
(Pen. Code 594.3, subd, (b).)
Existing law provides that any person who places or displays a
sign, mark, symbol, emblem, or other physical impression
including, but not limited to, a Nazi swastika on the private
property of another person without authorization and for the
purpose of terrorizing the owner or occupant, or in reckless
disregard of the risk of terrorizing the owner or occupant, is
guilty of a misdemeanor, punishable by imprisonment in the
county jail not to exceed one year and/or a fine not to exceed
$5,000. A person guilty of a subsequent conviction is guilty of
a misdemeanor, punishable by imprisonment in the county jail not
to exceed one year and/or a fine not to exceed $15,000. (Pen.
Code 11411(a).)
Existing law provides that any person who engages in a pattern
of conduct described in Penal Code section 11411(a) is guilty of
an alternate felony-misdemeanor and/or a fine not to exceed
$10,000 (a felony) or $5,000 (a misdemeanor). (Pen. Code
14111, subd. (b).)
Existing law provides that any person who burns, desecrates, or
destroys a cross or other religious symbol, knowing it to be a
religious symbol, on the private property of another person,
without authorization and for the purpose of terrorizing the
owner or occupant or on the property of a school for the purpose
of terrorizing any person who attends or works there or is
otherwise associated with the school is guilty of an alternate
felony-misdemeanor and/or a fine not to exceed $10,000 (a
felony), $5,000 (a first-offense misdemeanor), or $15,000 (a
subsequent misdemeanor). Pen. Code 11411, subd. (c).)
Existing law provides that any person who intentionally
interferes with another person's exercise of religion by means
of a direct threat to the person to injure any person or
property is guilty of a felony punishable by 16 months, 2 or 3
years in state prison. (Pen. Code 11412.)
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Existing law provides the following in regard to probation:
"The court, or judge thereof, in the order granting probation,
may suspend the imposing or the execution of the sentence and
may direct that the suspension may continue for a period of time
not exceeding the maximum possible term of the sentence, except
as hereinafter set forth, and upon those terms and conditions it
shall determine." (Pen. Code 1203.1, subd. (a).)
Existing law provides that only a condition of probation which
(1) has no relationship to the crime of which the offender was
convicted, (2) relates to conduct which is not in itself
criminal, and (3) requires or forbids conduct which is not
reasonably related to future criminality, does not serve the
statutory ends of probation and is invalid. (People v.
Dominguez (1967) 256 Cal.App.2d 623, 627.)
Existing law defines a "protective order" as an order that
includes any of the following restraining orders, whether issued
ex parte, after notice and hearing, or in a judgment:
An ex parte order enjoining a person from contacting,
attacking, molesting, battering, telephoning, or contacting
repeatedly by mail with the intent to harass or disturb.
An ex parte order excluding a person from the family dwelling,
the dwelling of the other party, the common dwelling of both
parties, or the dwelling of the person that has care, custody,
and control of a child to be protected from domestic violence
for the period of time and on the conditions the court
determines.
An ex parte order enjoining a party from specified behavior
that the court feels is necessary to effectuate the above
orders. (Fam. Code 6320.)
Existing law provides that any person who has suffered unlawful
violence, a credible threat of violence, or a knowing and
willful course of conduct directed at a specific person that
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seriously
alarms, annoys, or harasses the person and that serves no
legitimate purpose may seek a temporary restraining order and an
injunction prohibiting the harassment. (Code of Civ. Proc.
527.6.)
Existing law authorizes the criminal court to issue a protective
order upon a good cause belief that harm to, or intimidation or
dissuasion of, a victim or witness has occurred or is reasonably
likely to occur. The court may also order that no communication
or contact occur between the defendant and any victim or
witness. (Pen. Code 136.2.)
This bill extends the discretion in existing law for the court
to impose probation conditions involving racial sensitivity
training and counseling in cases where the defendant is
convicted of a violation of Penal code sections 422.6. 422.7,
422.75, 594.3 or 11411, to any case in which a defendant is
convicted of a crime "against the person or property of another"
person or entity "because of the victim's actual or perceived
race, color, ethnicity, religion", etc. The bill retains the
references to the specified crimes.
This bill requires the court, absent compelling circumstances,
and as a condition of probation for any person convicted of a
specified hate crime, or a crime committed because of the
victim's actual or perceived race, color, ethnicity, religion,
etc., to issue a protective order to protect the victim.
This bill requires the court, absent compelling circumstances,
to issue a protective order to protect the victim before a
person found not guilty by reason of insanity (NGI) for the
commission of a specified hate crime, or crime committed because
of the victim's actual or perceived race, color, ethnicity,
religion, etc., is released on outpatient status. The bill
specifically authorizes racial sensitivity counseling or
training as a condition of outpatient placement.
This bill requires the parole authority, absent compelling
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circumstances and as a condition of release, to require any
parolee convicted of a specified hate crime, or a crime
committed because of the victim's actual or perceived race,
color, ethnicity, religion, etc., to stay away from the victim.
The bill further authorizes racial sensitivity counseling or
training, or a one-year counseling program for violence and
antisocial behavior reduction, as a condition of release.
COMMENTS
1. Need for This Bill
According to the author:
A 1993 study, Hate Crimes: The Rising Tide of Bigotry
and Bloodshed, by Jack Lewin and Jack McDermott
concluded that hate crime perpetrators might target a
victim(s) repeatedly in an escalating cycle, with each
incident being more violent than the last.
Additionally, social science research suggests that
for hate crimes, there is the increased potential for
future repeated victimization if protections are not
put in place and the perpetrator is not rehabilitated.
AB 2428 seeks to address both of these problems.
First, AB 2428 seeks to extend rehabilitation of hate
crime perpetrators. Currently, courts only have the
authority to require hate crime perpetrators to attend
sensitivity training or counseling as a condition of
probation. There is no such authority at
rehabilitation in the parole or conditional release
(upon leaving a mental institution) context. AB 2428
extends the statutory authority for the courts, or the
appropriate agency, to order such training for hate
crime perpetrators on parole and conditional release.
While in a state hospital, a perpetrator may be
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treated for his/her mental illness but there is no
specific treatment targeted at his/her belief in
violent, bias and anti-social tenets that make him/her
a continued potential danger to the community. Even
if a perpetrator is found sane, they may still hold
biased beliefs.
Second, AB 2428 puts protections in place to minimize
repeated victimization. This bill will protect
victims and their families (if the victim is deceased)
from further acts of violence, stalking, threats,
harassment and other abuse by requiring courts to
issue a protective order upon the release of a hate
crime perpetrator through probation, parole or
conditional release (upon leaving a mental
institution). AB 2428 allows for courts to waive the
protective order if compelling reasons not to issue
the order is found and stated on the record.
Although victims currently may file for a civil
restraining order when a perpetrator is released on
probation, parole or conditional release, many do not
know when the perpetrator is being released or may not
have the financial ability or knowledge to file a
civil restraining order. By requiring courts to issue
a protective order in each of these contexts, AB 2428
will provide additional protection to victims of hate
crimes.
AB 2428 was initiated in response to the murder of
Kenneth Chiu, a 17 year old Taiwanese American in
Laguna Hills, California. Chiu was brutally murdered
by his neighbor, Christopher Hearn, an avowed white
supremacist on July 30, 2001. After stabbing Chiu
over 25 times with a large knife, Hearn demonstrated
no remorse for the murder and expressed hatred for
Asians and other minorities. During the investigative
phase, it was found that Hearn had stalked the Chiu
family leading up to Chiu's murder, engaging in acts
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with escalating violence. He is believed to have
scratched "Chink" onto the Chiu's car and to have
attempted to murder Kenneth Chiu's father.
Christopher Hearn was found guilty of first-degree
murder with the special enhancements for lying in wait
and hate animus, but the court also rendered a final
verdict that Hearn was not guilty by reason of
insanity. AB 2428, also known as Kenny's Law, will
protect victims, like the Chiu's, from further
victimization by the same perpetrator.
2. Technical Issues - Protective Order and Racial
Sensitivity Training as Conditions of Release on Parole;
Placement of Hate Crime Parole Condition Provisions With
Other Parole Provisions
The bill, in part, creates a new Penal Code section
concerning release on parole for inmates who were convicted
of hate crimes - crimes committed because of the actual or
perceived race, ethnicity, religion, etc., of the victim.
The bill requires, as a condition of release on parole,
that the parolee not contact or harass the victim. This is
commonly called a protective order or a stay-away order.
The bill grants the parole authority the authority to
require the inmate, as a condition of release, to complete
a class on racial or ethnic sensitivity, or a one-year
violence counseling program.
Read literally, these provisions would prevent release from
prison of the inmate in many cases. This is particularly
applicable to the counseling and racial sensitivity
training provisions. The bill states that completion of
the programs is a condition of release, although such
programs would not likely be available in prison. It is
suggested that these provisions be described as conditions
of parole.
The parole protective order and counseling provisions are
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created through a new Penal Code provision - Penal Code
section 422.97 - in the portion of the Penal Code that
defines hate crimes and crimes involving credible threats
of harm. However, there are numerous sections describing
mandatory and discretionary parole conditions in existing
law. These sections appear together in Penal Code section
3000 and following. For example, Penal Code section 3053.2
sets out conditions of parole for persons convicted of
domestic violence. It is suggested that the parole
condition provision be placed together with the other
parole provisions. Such placement will likely create less
confusion for the parole authority and inmates.
SHOULD THE PAROLE PROVISIONS BE DEFINED IN TERMS OF
CONDITIONS OF "PAROLE," RATHER THAN CONDITIONS OF
"RELEASE?"
SHOULD THE PROVISIONS CONCERNING RACIAL SENSITIVITY
TRAINING AND PROTECTIVE ORDERS FOR PAROLEES CONVICTED OF
HATE CRIMES BE PLACED IN THE CHAPTER OF THE PENAL CODE
GOVERNING PAROLE AND PAROLE CONDITIONS, AS SIMILAR
PROVISIONS CAN BE FOUND IN THAT CHAPTER?
3. Nature of the Protective Order Authorized by This Bill -
Condition of Probation, Parole or Outpatient Release in
Contrast With Wider Consequences
This bill requires the issuance of a "protective order" in
specified circumstances (unless compelling circumstances
are shown to the court. The term protective order is used
in various contexts in California law. A formal protective
order in the context of domestic violence cases and others
subjects a defendant to numerous consequences. These
include additional penalties and firearms restrictions.
(Pen. Code 161, 646.91, 12021, subd. (g).)
Within the context of the bill, it appears that the
protective order would simply be a condition of probation,
parole or outpatient release for an NGI patient. The issue
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is raised as to whether the limited scope of any
"protective order" under this bill should be made more
explicit.
DO THE "PROTECTIVE ORDERS" REQUIRED BY THIS BILL APPLY ONLY
AS CONDITIONS OF PROBATION, PAROLE OR OUTPATIENT RELEASE,
OR DO THEY HAVE SOME WIDER EFFECT OR APPLICATION?
SHOULD THE NATURE OF THE ORDERS BE STATED MORE EXPLICITLY?
4. Asian Pacific Islander Anti-Hate Crime Program - Report and
Data on Hate Crimes
? The Legislation
AB 1312 (Nakano) - Ch. 566, Stats. 2001, created the Asian
Pacific Islander Anti-Hate Crime Program in the Department of
Justice to work with a community-based organization to develop a
statewide Asian Pacific Islander Anti-Hate Crime Program to
create brochures and work books to provide information on how to
report a hate crime, etc., and to conduct training seminars for
community organizations in order to better train them to assist
themselves or other Asian Pacific Islander communities in
dealing with hate crimes. The program sunsets in 2005. A
report was scheduled to be issued by March 1, 2004.
? Attorney General's Report - Narrative
The report notes that Governor Davis stripped funding from
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the program when he signed the Nakano bill.<1> The
Attorney General reports that he did "proceed with several,
planned anti-hate crime outreach efforts." These efforts
included outreach to API (Asian Pacific Islander)
organizations. DOJ drafted and printed a brochure entitled
"Preventing Hate Crime, What We Can Do." DOJ was unable to
conduct the specific training programs required by the
bill. However, the report did describe the number of crime
prevention programs that concerned hate crimes. Further,
the report described numerous programs and offices within
DOJ - including expansion of the Civil Rights Enforcement
Section, Office of Immigrant Assistance, Office of Victim
Services and the California Community Relations Service -
that provided services equivalent or similar to those
required by AB 1312 of 2001.
? Attorney General's Report - Data on Hate Crimes
Reported hate crimes have decreased overall since 1995.
Reported hate crimes against Asians and Pacific Islanders
have generally followed the overall trend.
Hate Crimes in California 1995-2002 (API - Asian Pacific
Islander)
----------------------------------------------------------------
|Year |1995 |1996 |1997 |1998 |
|------------+------------+------------+------------+------------|
|Total |1,754 |2,054 |1,831 |1,750 |
|------------+------------+------------+------------+------------|
-------------------------
<1> Governor Davis' signing statement reads as follows: "I am
signing Assembly Bill 1312, which establishes an Asian Pacific
American Anti-Hate Program at the Department of Justice.
However, given the rapid decline of our economy and a budget
shortfall of $1.1 billion through the first three months of this
fiscal year alone, I am deleting the $250,000 General Fund
appropriation contained in this bill and requesting the DOJ to
conduct this important program using existing resources."
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|API |142 |153 |160 |135 |
----------------------------------------------------------------
----------------------------------------------------------------
|Year |1999 |2000 |2001 |2002 |
|------------+------------+------------+------------+------------|
|Total |1,962 |1,957 |2,261 |1,659 |
|------------+------------+------------+------------+------------|
|API |126 |100 |93 |70 |
| | | | | |
----------------------------------------------------------------
Hate Crimes by Race and Ethnicity in 2002:
1,036 of 1,659 Hate Crimes Reported to DOJ were Based on
Race/Ethnicity of Victim.
-----------------------------------------------------------------
|Victim |Percentage of |Number of |
| |Total |incidents - |
| | |1,036 |
|--------------------------+-------------------+------------------|
|African American |46.5 % |482 |
|--------------------------+-------------------+------------------|
|Other Likely |19.2 % |199 |
|involved those of | | |
|Middle East descent | | |
| | | |
| | | |
|--------------------------+-------------------+------------------|
|Hispanic |15.1 % |156 |
|--------------------------+-------------------+------------------|
|White |8.8 % |91 |
|--------------------------+-------------------+------------------|
|Asian/Pacific |6.8 % |70 |
|Islander | | |
|--------------------------+-------------------+------------------|
|Multi-Racial |3.4 % |35 |
|--------------------------+-------------------+------------------|
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|Native American |.3 % |3 |
| | | |
-----------------------------------------------------------------
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5. Report by Attorney General's Task Force on Hate Crimes
Recommends Wider Community Response and More Law Enforcement
Training
The California Attorney General's Civil Rights Commission Task
Force on Hate Crimes issued a report in 2001 entitled "Reporting
Hate Crimes." This report included material that is relevant to
this bill. The report noted that only law enforcement officers
who entered training academies since 1993 have received
mandatory training in hate crimes. Further, uneven training has
contributed to uneven reporting of hate crimes. It appears that
such problems could result in weak or ineffective law
enforcement and community response to hate crimes. (Report, p.
2.)
Community and law enforcement response and attitudes about hate
crimes is very important in limiting such crimes. Where a
targeted group or class of persons does not feel that law
enforcement and the community is responding adequately, that
group may respond in crime, creating an escalating cycle. The
report included an example of racist skinhead attacks against
African American students in the Antelope Valley in 1996. The
community was not prepared to act quickly to these
circumstances. The initially targeted African American young
people "felt so alienated and angry by the perceived lack of
concern by the community that they, in turn, became hate crime
perpetrators and began attacking white youth at random.
Fortunately, Antelope Valley communities, law enforcement
agencies and schools have now formed a network that is prepared
to respond appropriately to hate crimes," (Report, 9.)
Arguably, this bill will foster positive community responses to
hate crimes. Counseling and sensitivity training could change
the attitudes of at least some offenders. Protective orders
could allow law enforcement to intervene before a cycle of hate
crime offenses and retaliation could gain momentum. It is
implicit in the Commission report that merely increasing
penalties for individual cases may do little to change the
circumstances that foster hate crimes. (See Comment # 4 for
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discussion of racial and ethnic tensions in prisons and jails.)
6. Possible Exacerbation of Hate Crime Problems Through
Increasing Sentences - Alternative Strategies are Employed by
This Bill
This bill does not increase incarceration or fines for hate
crimes. Merely increasing punishment may exacerbate racially
motivated crimes. It has been widely reported that California
prisons are among the most segregated and racially polarized
places in the state. Tension and fights based on ethnic and
racial animus are a constant of life in prison. Similar
circumstances occur in jails. Perpetrators of hate crimes may
see themselves as martyrs when incarcerated. Their behavior may
be lauded and reinforced by fellow inmates.
IS THE APPROACH TAKEN BY THIS BILL - PROTECTIVE ORDERS AND
COUNSELING AND RACIAL SENSITIVITY TRAINING - POSSIBLY MORE
EFFECTIVE THAN MERELY INCREASING PENALTIES?
7. SB 1234 (Kuehl) Amends the Section Amended by This Bill
This bill, in part, amends Penal Code section 422.95. SB 1234
(Kuehl) pending assignment in the Assembly, amends 422.95 so as
to renumber it of 422.85 and deletes the specific reference to
educational programs. SB 1234 also adds the hate-related crimes
of religious terrorism and use of explosives in acts of
terrorism. (Pen. Code 11412 and 11413.) SB 1234
comprehensively rewrites hate crime and related statutes. For
example, SB 1234 creates a general definition of hate crimes, as
follows:
? "Hate crime" means a criminal act committed, in whole or in
part, because of one or more of the following actual or
perceived characteristics of the victim:
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Disability
Gender
Nationality
Race or ethnicity
Religion
Sexual orientation
Association with a person or group with one or more of
these actual or perceived characteristics.
? Hate crime includes, but is not limited to, a violation of
Section 422.6.
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