Graffiti as a hate crime divides NY Gov. Hochul and progressive Democrats

New York Gov. Kathy Hochul’s push to dramatically expand the list of potential hate crimes in New York is the latest in what’s become a long line of crime-related issues to divide Democrats in Albany.

The Democratic governor is throwing her support behind legislation that would allow district attorneys to prosecute an additional 31 charges as hate crimes. It’s a legal determination that pushes misdemeanors and low-level felonies up to higher-level charges that carry stiffer sentences — but only if a prosecutor can prove a person was motivated by a bias against the victim’s race, religion or gender, among other attributes.

The bill would apply to everything “from gang assaults to graffiti,” Hochul noted last month. Her push comes in response to a bump in reported hate crimes in New York City following the Oct. 7 attacks in Israel, as well as a sharp statewide increase over the past several years. It comes at the request of district attorneys like Manhattan’s Alvin Bragg, who say the current list of potential hate crimes is too restrictive.

But some say the governor’s approach goes too far — particularly when it comes to lower-level crimes like making graffiti, which would be bumped up to a felony with a possible sentence of up to four years in prison if charged as a hate crime.

“We’re giving a lot of power to prosecutors here and we’re relying on them to use it wisely,” said Kathryn Miller, co-director of the Cardozo School of Law’s Criminal Defense Clinic. “They already have a lot of tools. I’m not really sure why they need this one, too.”

New York currently has 66 charges that can be tried as hate crimes, a broad list that includes everything from harassment and assault to terrorism and most arson crimes.

It doesn’t mean those crimes are automatically considered hate crimes regardless of the circumstances. To attach a hate crime designation, a prosecutor must prove the underlying crime was motivated by a bias against the victim’s background — such as an attack on a person because they’re Muslim or Jewish, or because they identify as LGBTQ+.

The hate crime designation bumps the alleged crime up by one category — a class A misdemeanor, for example, would become a class E felony, which is the lowest felony level.

The Hate Crime Modernization Act would increase the list of eligible crimes to 97.

The legislation, which is now part of Hochul’s $233 billion state budget proposal, was first introduced late last year by state Sen. Brad Hoylman-Sigal and Assemblymember Grace Lee, both Manhattan Democrats. It was crafted in consultation with district attorneys including Manhattan’s progressive-leaning Alvin Bragg, who say the current list of 66 eligible crimes doesn’t encompass the full range of crimes that can be motivated by hatred.

“What our district attorneys are finding is that there’s a rise in hate crimes that they want to prosecute,” Hochul told reporters in late January. “There are a lot of loopholes because no one could have contemplated how many crimes like this would be committed.”

Reported hate crimes increased by 82% across New York state from 2018 to 2022, from 527 to 959, according to data compiled by the state Division of Criminal Justice Services.

Statewide data is still being compiled for 2023, but New York City data showed that reported hate crimes spiked following the Oct. 7 attack in Israel. The NYPD reported a total of 257 hate crime incidents in the last three months of the year, a 137% increase from the same period in 2022. Of those, 63% were allegedly against Jewish people.

More than a dozen Democratic lawmakers have signed on to the hate crime expansion bill.

But much like previous battles over rolling back the state’s cash bail reforms, progressives in the Legislature are making clear they aren’t on board and are raising concern over the idea that more punitive criminal penalties will deter hate.

“I don’t believe that adding additional crimes to the penal code is going to prevent additional hate crimes,” said Sen. Julia Salazar, a Brooklyn Democrat. “I think that we need a more holistic approach to preventing hate crimes from happening in the first place and trying to remedy these situations when, tragically, they do happen.”

In particular, Salazar and other left-leaning Democrats take issue with adding graffiti crimes to the list. As it stands, making graffiti is not on the hate-crime eligibility list, though prosecutors often charge alleged perpetrators with criminal mischief, which requires property damage of at least $250.

Salazar said the proposal could have significant harm on young people before they’ve had a chance to get their footing in life. Assemblymember Zohran Mamdani, a Queens Democrat, said he has similar concerns.

“There’s a clear need for state intervention so that every New Yorker feels safe and is safe,” Mamdani said. “The governor’s proposal of [longer] max sentences for graffiti is not the solution.”

Hochul and district attorneys say their plan to make graffiti eligible for hate crime prosecution is no accident.

They point to a number of recent incidents in which potentially threatening graffiti has been found on Jewish-owned businesses, including as recently as last month in the Westchester County village of Scarsdale.

There, someone scrawled “genocide supporters” in black spray paint on the storefronts of two Jewish-owned businesses, according to local police.

When she was asked on Wednesday about why graffiti is included in her proposal, Hochul said: “Because it is a hate crime.”

“First of all, it’s vandalism, but it’s hate-inspired vandalism,” she said, pointing to the Scarsdale case. “And that has to be reckoned with. This is the state of New York. We’re not tolerating any forms of hate.”

Westchester County DA Mimi Rocah said being able to label something a “hate or bias crime” is “important to the victims, it’s important to the community and it’s important to our sense of justice.”

“This is how hate and bias crimes work,” she said at a news conference with Hochul. “Even low-level crimes, like graffiti, can instill fear in not just the victims who had that done on their store — you can wash graffiti off eventually — but in the whole community.”

Miller, of Cardozo Law, said Hochul’s efforts are misguided.

The fact that hate crimes have risen even without the expanded list of eligible crimes is evidence that the threat of tougher penalties isn’t deterring people, she said. And including the crime of making graffiti — which focuses on content, rather than criminal mischief, which focuses on property damage — could bring up potential free-speech issues, she said.

“From my standpoint, money should be invested in community programs that involve diversity, equity and inclusion, and educational programs that are against hate,” Miller said. “Hate crimes just don’t change minds.”

Hochul’s budget proposal includes $35 million for a state program that allows organizations to apply for $200,000 grants for physical security and cybersecurity upgrades, which she calls the Securing Communities Against Hate initiative.

But Hochul says the hate crime expansion is a necessary tool for prosecutors.

“Let [people] know there’s real consequences when you engage in these activities,” she said. “That’s what this legislation is all about.”