Hate crimes carry ‘different harm’ than other crimes
The brutal beating death last spring of Nampa resident Steven Nelson was so vicious, it quickly drew comparisons to the 1998 murder of university student Matthew Shepard outside Laramie, Wyo.
Nelson, 45 — kicked 20 to 30 times with steel-toed boots — was left naked and battered April 29 in a deserted area around Lake Lowell. He was able to walk barefoot down a gravel path to reach a house to call for help, but died hours later at a hospital after suffering a heart attack.
Shepard was beaten, tied to a fencepost and left to die. His death brought worldwide attention to hate crimes against gays and helped lead to the passage of a monumental federal hate crime law in 2009.
Nelson’s death has renewed discussion of hate crimes in Idaho, which have steadily decreased since 2011 and are only a fraction of what they were in the mid-1990s, when the white supremacist Aryan Nations group was still active in North Idaho. In 2015, 22 incidents were investigated by law enforcement agencies across the state, down four from the year before. In 1995, there were 115 incidents reported statewide, according to Idaho State Police.
Statistically, Idaho, with a rate of 1.3 hate crimes per 100,000 people, fares better than most of its neighboring states in that regard. Wyoming, with less than 1 hate crime per 100,000, has the lowest rate among states bordering Idaho, according to 2015 statistics compiled by the FBI. (It also is one of the few states without a state statute addressing hate crimes.) Washington had a rate of 1.1, followed by Utah at 1.6, Nevada at 2.0, Oregon at 3.8 and Montana at 4.4.
“I think it’s very positive news. That’s a major reduction from 1995 and it was even worse in the 1980s,” said Tony Stewart, a retired political science professor at North Idaho College in Coeur d’Alene and a member of the Kootenai County Task Force on Human Relations, which formed in 1981 to fight back against the hate espoused by the Aryan Nations.
Oregon and Washington were the first states to pass hate crime legislation, in 1981. Idaho followed suit two years later with the statute deeming “malicious harassment” a felony. Today, all but five states — Indiana, Georgia, Arkansas and South Carolina join Wyoming — have hate crime laws on the books.
The decline may have several causes. Nationwide, violent crime rates have fallen to their lowest levels since 1970, according to annual FBI uniform crime reports. The rate has steadily declined since peaking in 1991.
“Some of what we may be seeing may be a reflection of that,” said Shaakirrah Sanders, an associate law professor at the University of Idaho. “If we just have a larger downward trend in crime, then we can presume that will affect hate crimes as well.”
And Idaho prosecutors don’t always charge criminal defendants with hate crimes in situations where they might apply.
“There may be times when we cannot meet the burden of proof beyond a reasonable doubt on the specific intent language as outlined in the malicious harassment statute,” said Jan Bennetts, Ada County prosecutor. “We may have to look at a different or ‘lesser’ charge depending on the facts and what we can prove.”
That’s a challenge in federal court, too. Two years ago, two men were found not guilty of a hate crime after beating a black man at the Torch 2 club in Boise. Defense attorneys argued that the victim wasn’t targeted because of his race.
On the state level, malicious harassment — which carries a maximum sentence of five years in prison — isn’t always the best charge, Bennetts said.
“Aggravated battery carries a potential penalty of up to 15 years in prison, which is more than the malicious harassment statute allows. In that case, if aggravated battery were charged, it would actually be a ‘greater’ offense rather than a ‘lesser’ offense,” Bennetts said.
Crimes against blacks, Hispanics
Idaho averaged 30 incidents annually investigated as hate crimes between 2006 and 2015, according to statistics compiled by Idaho State Police and the FBI. Crimes against people because of their race accounted for 44 percent. Blacks were victims in 105 of 134 total incidents in that category, or 78 percent.
In hate crimes based on ethnicity, which accounted for 22 percent, Hispanics were targeted in 45 of 67 incidents.
Crimes against people because of their sexual orientation or religion accounted for 18 percent and 16 percent of the total, respectively.
Sexual orientation has been an especially controversial issue in recent years as Idaho’s state law applies to crimes targeting people for their race, color, religion, ancestry or national origin — but not if they are gay, bisexual or transgender.
In the Lake Lowell case, Nelson’s lead assailant was charged in state court with causing his death. As soon as Kelly B. Schneider, 23, pleaded guilty to first-degree murder last month, he was whisked in front of a federal judge and indicted under the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act. (Byrd, the act’s other namesake, was a black man killed in Jasper, Texas, the same year as Shepard. Three men dragged Byrd behind a pickup for 3 miles.)
Schneider pleaded guilty to the federal hate crime, admitting that he attacked Nelson because of his sexual orientation. Schneider faces up to life in prison in both cases. He’s to be sentenced for the murder on March 20 and for the federal hate crime on April 26.
The federal statute carries a much stiffer maximum penalty, life in prison, than Idaho’s malicious harassment law.
But there are certain requirements before the feds can step in. Backers of the Add the Words movement in Idaho, who continue to advocate for amending Idaho’s Human Rights Act to cover sexual orientation and gender identity, have talked of the need to update the malicious harassment statute as well.
Why have hate crime laws?
The current discussion is far removed from the landscape that led to Idaho’s hate crime law.
The state got a black eye as a haven for racists after retired Lockheed aircraft engineer Richard Butler bought a wooded, 20-acre site in Hayden Lake in June 1973 and moved there from California with his wife, Betty. The remote compound was located about 10 miles north of Coeur d’Alene.
Four years later, Butler formed the Church of Jesus Christ Christian and created a political arm that he named the Aryan Nations. Butler, who came to say he fought on the wrong side in World War II and who admired Adolf Hitler, preached to his followers that the Pacific Northwest should become a homeland for whites.
In late 1980, vandals tied to the Aryan Nations spray-painted Nazi swastikas and anti-Semitic slurs outside a Hayden restaurant run by Sid Rosen, a North Idaho chef who was Jewish.
That began a reign of terror meant to drive minorities out of Kootenai County. Members harassed families, including children. In April 1984 the trouble migrated south, with two men tied to a violent Aryan Nations offshoot setting off a bomb at Congregation-Ahavath Israel Synagogue in Boise. No one was injured, but one of the bombers was later identified as the shooter in the killing of Jewish radio talk show host Alan Berg in Denver.
The Aryan Nations was finally run off in 2000, when Victoria Keenan and her son, Jason, won a $6.3 million civil lawsuit bankrupting Butler and his organization. In July 1998, guards at the Aryan Nations compound mistook a car backfiring for gunshots. They chased down the Keenans, who were returning home from a wedding, and fired several times at their car, forcing it off the road. They held the pair at gunpoint and threatened to kill them before letting them go.
During the group’s height, Stewart received two late-night phone calls threatening his life.
“There’s no question that the defeat of the Aryan Nations, taking all of their property and ending the compound, is the No. 1 reason for the reduction in hate crimes,” he said.
But laws passed by the Legislature were also instrumental. The 1983 malicious harassment law was followed four years later by a statute for domestic terrorism. Those laws led to many successful prosecutions, Stewart said.
“The word went out, not only in Kootenai County but around the state, that if you commit such a crime, you’ll be vigorously prosecuted,” Stewart said.
Not everyone believes such laws are still needed.
Last year, South Carolina legislators considered a hate crime law in response to the mass murder of nine African-Americans at a Charleston church. It never even advanced for a vote. The outcome was the same a year earlier in Indiana.
Opposition to both bills came from groups of Christian fundamentalists who feared LGBT groups would be emboldened to seek anti-discrimination measures. Other critics argue that it’s impossible for police officers and prosecutors to know a suspect’s state of mind, and some have argued hate crime laws can infringe on free speech (the U.S. Supreme Court rejected that in 1993).
Idaho’s law provides for more than just criminal action, allowing victims of malicious harassment to seek damages through a civil suit.
And prosecutors still see it as a valuable tool. Wendy Olson, Idaho’s outgoing U.S. attorney, began her career in 1992 as a civil rights prosecutor with the Justice Department in Washington, D.C. She said hate crime laws continue to send a strong message that such behavior won’t be tolerated and that state and federal authorities take their responsibilities seriously.
In 2010, after the successful prosecution of two Coeur d’Alene men for threatening a Puerto Rican man, Kootenai County Prosecutor William McHugh told The Spokesman-Review that the verdict “perhaps reflects on the larger community’s acceptance of the existence of (hate crime statutes). They accept them and will utilize them when asked.”