Angela Giampolo of Giampolo Law.

It's been over three years since Kevin Harrigan, Philip Williams and Kathryn Knott bashed a gay couple, Andrew Haught and Zachary Hesse, in Center City Philadelphia on Sept. 11, 2014. At the time, there was outrage that such an attack could occur in Philadelphia, a place where LGBTQ people are supposed to feel safe in a city considered the most LGBTQ-friendly in the country by the Human Rights Campaign. However, the outrage wasn't limited to the attack itself. Because of a procedural issue, sexual orientation and gender identity are not included in Pennsylvania's hate crime laws; leaving prosecutors no way to charge Harrigan, Williams and Knott with a hate crime.

State Reps. Dan Frankel, D-Allegheny, and Brian Sims, D-Philadelphia, have been attempting to reinstate LGBTQ citizens and disabled people as protected classes in Pennsylvania with regards to hate crimes for years, the latest attempt being The Pennsylvania Fairness Act (H.B. 1510/S.B. 974). The Pennsylvania Fairness Act, a bipartisan effort, is only now receiving attention across the state with legislatures stating embarrassment at Pennsylvania being the only state in the Northeast to lack hate-crime protections for the LGBTQ community. Locally, disabled and LGBT Philadelphians are protected in a city ordinance that unanimously passed the Philadelphia City Council just two months after the Center City bashing.

But even with widespread support, basic questions remain about hate crimes legislation: Are they constitutional? Do they work? Do they deter violence against LGBT people or just make them feel safer? Are they fair and just? Or do they serve to populate prisons with criminals for longer periods of time?

Currently, there are 45 states with a criminal statute which specifically addresses crime motivated by bias or prejudice toward the victim's real or perceived social identity, 17 states plus Washington, D.C. and a handful of large cities that include both sexual orientation and gender identity as protected classes, and 13 more states that cover sexual orientation only. These laws are predicated upon more harshly punishing the guilty based on motive—the reason the crime was committed—which is ascertained by focusing on the criminal's speech, thoughts and motivations. A person's thoughts, speech and motivations are historically protected by free speech in the United States, even the more morally reprehensible or repugnant ideologies.

When a person's beliefs, no matter how detestable, come under fire and result in punishment, where do we draw the line? The ACLU's stance is that hate crime laws, as they exist today, are at the top of a slippery slope of questionable constitutionality, opening criminal cases to appeal. Criminal law should focus on intent, the desired result of a given action, i.e., injury, harassment—rather than motive, i.e., hate, disgust. Hate-crime laws can also be susceptible to selective enforcement and they obscure more complex issues in society by misdirecting our attention from solving the root issues of racism, homophobia and violence against immigrants.

Data collected by the Center for the Study of Hate Crime and Extremism at California State University, San Bernadino, shows 2016 had the highest number of hate crimes since 2012 and since the election, hate crimes have spiked; 2016 is the first year in a decade that incidents of reported hate crimes rose rather than fell.

Of the nation's five largest cities, only Houston was the exception to double-digit increases in hate crimes as compared to the year before. Los Angeles had an increase of 15 percent, Chicago incidents increased 20 percent, New York City, 24 percent, in Philadelphia, hate crimes rose a staggering 50 percent, but Washington, D.C. came in with the highest increase at 62 percent. As for statewide increases, Indiana saw the highest hike of 123 percent, followed by Minnesota, 27 percent, Michigan, 22 percent, New York, 20 percent, California, 11 percent, and Kentucky, 6 percent.

In 2017, we are on target to exceed those numbers.

Is it any wonder, with our current presidential administration very publicly targeting minority groups? From the travel ban to the Department of Justice's amicus brief in Masterpiece Cakeshop v. Colorado Civil Rights Commission, favoring the bakery owner who refused to bake a gay couple a wedding cake; governmental actions are sending a clear message to the American public: bigotry and hate against minorities is acceptable.

Since 1978, out of the 50 states, 45 have passed some kind of hate crime statute and in 2016, we see the largest spike of hate crimes in over a decade. Is it possible that hate crime laws haven't addressed the bias against minority groups, but instead demonstrating “hate” was not as acceptable as it is now?

We know that bias and prejudice are not innate, but instead are learned attitudes and behaviors. As such, there are ways we can address hate without legislating morality. Schools could institute lessons about our country's history of abuse and violence toward minority groups and foster discussion about the impact of bias and prejudice helping to raise a generation of citizens that is empathetic and culturally competent. Once in the workplace, employers should focus on authentic diversity and inclusion training and professionals working in the criminal justice system can use training related to their personal biases to help ensure that when hate crimes do occur, they are taken seriously. Lastly, sentencing guidelines associated with hate crimes can be modified so that rather than just sending an offender to prison for a longer period of time, they are given sentences that involve diversity training, educational programming, and cognitive behavioral therapies that specifically address the source of their prejudice and work to eradicate it.

Hate crimes are on the rise and statistics show that hate crime legislation is not effective in deterring the increase. As a society, we have to work together to combat hate crimes by addressing prejudice at its root and, even if it's not pretty, examining the psychological, economic, religious and racial reasons behind it.

Angela D. Giampolo, principal of Giampolo Law Group, maintains offices in Pennsylvania and New Jersey and specializes in LGBT law, business law, real estate law and civil rights. Her website is www.giampololaw.com and she maintains two blogs, www.phillygaylawyer.com and www.lifeinhouse.com. Contact her at [email protected].