Passage of statewide legislation to help protect the LGBT community from hate crimes has been painfully slow. With an unsympathetic and Republican-controlled legislature, we need to turn to alternative approaches to help provide the necessary protections for our community.
The Philadelphia courts have an opportunity to implement actions that will follow the District Attorney’s Office’s success in reducing gun violence by taking similar steps to deter hate crimes.
Increases to bail for gun crimes in 2012 showed a direct reduction in crime over the past few years. When someone is arrested for a crime, bail is set by a magistrate. The purpose of bail is to ensure that the accused will show up for court. The amount of bail is based on a matrix that weighs the criminal charge-seriousness score and the risk of flight. Some crimes, such as first-degree homicide, do not allow bail to be posted. Furthermore, under Article 1, Section 14 of the Pennsylvania Constitution, the District Attorney can ask that the accused be held without bail. The likelihood of being held in custody due to not being able to post bail is seen as a deterrent to criminal activity. There’s an argument that bail shouldn’t be punitive and that it unfairly affects the poor. As long as bail is still being used in a deterrent manner, the LGBTQ community should be protected by it, just like all Philadelphians have enjoyed the decrease in gun violence through higher bail for firearm charges.
Of the District Attorney’s policy changes during his first term, higher bail for gun charges was a priority that was pursued relentlessly. This continual press led to the charge-seriousness score being increased from a five to a 10 (the highest) on the bail matrix by Administrative Judge Herron in September 2012. Instead of having to post $500, individuals are now regularly posting $7,500 to be released. The police department has shown a drastic decrease in gun violence since the word got out about the bail increase. Though the attribution is credited to various methods, the massive increase in bail is certainly a major factor.
We recently had our collective psyches shattered by the horrendous attack on two men simply for being gay. There was a social-media manhunt that eventually brought about the alleged attackers’ arrests. The bail set for these individuals was high, but this was after the beating became national news. If there hadn’t been the same social-media outcry, would their bail have been the same?
Philadelphia City Council appropriately and immediately passed a new hate-law ordinance, 17-0, within two months of the attack. Unfortunately, they were burdened by only being able to create a summary offense, with a maximum sentence of 90 days in custody with the case being expungable after five years. While well-intentioned, this ordinance is almost toothless and sadly falls into the same category of summary offenses such as scattering rubbish, discarding a refrigerator and illegal use of a shopping cart.
We have to ask ourselves if we can afford to wait for another attack before further action is taken. Having the administrative judge increase the charge seriousness for all crimes that are motivated by prejudice toward an individual’s race, religion, ethnicity, nationality, gender, sexual orientation, gender identity or disability can have an immediate impact. This positive impact will not have to jump through Republican hurdles in the state legislature, just our local and sympathetic legal field. Attacks that are damaging the community will decrease because the bullying bigot will think twice before launching an assault if he knows that he will have to sit in custody pending the resolution of his case due to high bail. Those in the LGBTQ community know that a bigot’s fists need to be treated just as dangerously as a loaded gun. We simply cannot wait for the legislature to take action when we can make a positive change now.
Zac Shaffer is a judicial candidate for the Court of Common Pleas; www.phillyjudge.com.