Edmonds, Washington is a small bedroom community north of Seattle that has become a tinderbox since the passage of its hate crime ordinance. Twice, in 2018 and again in 2020, police filed charging documents with the prosecutor. Twice, the prosecutor declined to press “hate crime” charges after determining that the city could not prove its case in court.
The second incident pitted Mayor Mike Nelson against Snohomish County Prosecuting Attorney Adam Cornel. In the riotous summer of 2020, a 69-year-old man defaced a Black Lives Matter display across the street from the police station. He told police that he was “upset with how the police were being treated.”
Defacing public property is normally a misdemeanor punishable by a fine of up to $750. The mayor, however, wanted to charge him with a felony on the basis that the high school girl who made the display was “BIPOC” (Black, Indigenous, (or) People of Color). After investigating the elements of the crime, Cornel determined that he could not “advance the cause of social and racial justice by furthering an unjust felony prosecution. To do so would be unethical.”
This was sound judgment. A recent study from the Department of Justice found that, in 15 years (2005 through 2019), only 17% of federal “hate crime” allegations were ever charged. Fewer still were proven. The report cited insufficient evidence as being the most common reason why hate crimes were declined for prosecution.
The stock-in-trade of prosecutors and defense attorneys consists of the “elements of a crime.” These are the elemental facts that must be proven to get a conviction. Most crimes have four elements. Hate crimes add another by requiring proof of the perpetrator’s state of mind. If proof is not available, the defendant is not guilty – even if the other elements are fully proven.
But the ginned-up rage of Edmonds’ social-justice warriors and its politically minded mayor wasn’t assuaged by the facts. Herein lies the problem. Public sentiment can be fanned into flame by irresponsible media and community organizers. But when it blows up, it burns the prosecutors, judges and mayors who have to make real-life decisions. Some will cower before the mob and unethically file bogus charges. Those that don’t will be unjustly hated by the mob.
Now, Councilman Richard Johnson wants to bring this kind of ordinance to Cheyenne. He cut-and-pasted an ordinance from another state that would make it a misdemeanor “for any person to maliciously and with the specific intent to intimidate or harass another person because of that person’s race, color, religion, ancestry, sex, sexual orientation, gender identity, gender expression, national origin, or disability.”
It is already a crime for any person maliciously to intimidate or harass another person. Wyoming statute (Title 6) specifies this, and other crimes against persons, property and the public peace. It is written specifically to minimize the elements that need to be proved. This enables successful prosecution of harassment, assault, property destruction and other crimes.
On numerous occasions, bills have been brought to the state Legislature that would insert motivation as an additional element. Legislators have repeatedly rejected these bills precisely because they would allow criminals to get off scott- free.
According to the proposed ordinance, if a prosecutor could prove beyond a reasonable doubt that a perpetrator maliciously harassed someone, but could not prove the element “because of that person’s race,” he must be found not guilty. By contrast, our current state law would punish that same perpetrator with a $750 fine and/or six months in jail – the very same penalty that Johnson’s ordinance proposes.
Why add a layer of red tape that could only quash otherwise successful prosecutions? I will not speculate on Johnson’s motives, but the Chamber of Commerce claimed that it would help Cheyenne’s economic development. Are they suggesting that companies will not locate in Cheyenne unless the city first makes criminal prosecutions more difficult?
For years, the U.S. Chamber of Commerce has been making this baseless claim. By stoking fear, they have bullied numerous cities into passing similar ordinances. As a result, many small businesses have been bankrupted by unethical law-fare, and communities have been turned into tinderboxes. Then, when minority businesses actually go up in flames, the Chamber turns strangely quiet.
If the goal is successful prosecution of crimes that are motivated by hate, smart prosecutors know that adding “hate” as an additional element only weakens the law.
Cheyenne’s city council would be wise to learn from Edmonds’ mistake. It should defer to the wisdom of the Legislature, the governor and the prosecutors who deal with crimes every day. This will bring more criminals to justice; it will lessen the chances of politically motivated prosecutions; and it will not create unrealistic expectations that can only divide previously peaceful communities.