Maryland Bar Bulletin
Publications : Bar Bulletin : September 2008

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A 2002 National Sheriffs’ Association handbook on the response of law enforcement to victims with disabilities or of older age instructs that, while any citizen can fall pray to crime, the disabled and/or older adults may be especially vulnerable, as a particular mental or physical disability or condition may affect noticing, reacting and responding to crime. Criminal offenses that target an individual because of the immutable characteristic of disability and/or older age deserve, as a means of addressing the unique circumstances of such individuals, heightened opprobrium and law enforcement response.

Another form of criminal offense perpetrated against the disabled in Maryland, especially service animal handlers, is that of all too common attempted or real denials to places of public accommodations. The MSBA, law enforcement and the disabled can individually and collaboratively undertake steps to prevent and address criminal offenses and victimization.

A May 21, 2007, joint Statement issued by, among others, the National Council on Disability (an independent agency that advises on disability policy), indicated data cannot be generalized or extrapolated on a national basis concerning crimes against the disabled. The statement, at the same time, indicated that, because of their unique circumstances, inclusive of the affects of particular disabilities and a lack of equal access to programs and services, the disabled suffer victimization at higher rates than the able-bodied.

Legislation entitled “The Crime Victims with Disabilities Awareness Act” (Pub. L. 105-301), which President Clinton signed in October 1998, composed an early attempt to address this lack of statistics.

The Act requires the Attorney General to collect data to measure the magnitude of crimes perpetrated against people with developmental disabilities and to develop strategies to address the safety and justice needs of such victims. The Act, however, is limited in that it only addresses a specific subpopulation of the disabled and is otherwise flagging due to its lack of implementation.

In May 2007, the House of Representatives passed H.R. 1592, “The Local Law Enforcement Hate Crimes Prevention Act”. The Act, which never successfully moved out of the Senate (probably because of the threatened veto of President Bush), sought to address crimes perpetrated against individuals because of immutable characteristics by, among others, amending existing, but narrow, panoply at Title 18 of the U.S. Code, to include, sexual orientation, gender identity and disability within the definition of existing so-called Hate Crimes.

Prosecutors may consult the Federal Sentencing Guidelines, as an alternative, if pyrrhic, course. Section (3)(A)(1) of the guidelines allows for an increased sentence, where “…the defendant intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation…or vulnerable status…of any person.”

On the local level, however, §10-304 of the Maryland Code provides that it is unlawful to perpetrate an offense, inclusive of the actual or attempted defacing, damage to or destruction of personal and/or real property, or burning an object, based on the race, color, national origin, religious beliefs and/or sexual orientation of a person.

During the 2008 general session of the Maryland General Assembly, unsuccessful bills sought to expand this range of protections to the homeless. As may be the circumstance from time to time, the disabled were not included in those bills.

In addition, most Maryland police and prosecutors are unaware that the provision at §7-705 of the civil rights statutory scheme for the disabled provides for a criminal misdemeanor, with a fine not to exceed $500 for the access denial of a handler of a service animal and a fine not to exceed $25 for the access denial of a trainer of a service animal.

Concluding Disputation and Call to Action

Federal H.R. 1592 as well as the 2008 unsuccessful bills ignited debate about offenses known as Hate Crimes.
A persuasive, if simplistic, argument is that, as all criminal offenses involve a component of hate, society should be loath to cherry-pick one group of victims versus another, just because one of them is gainsay disabled. Offenses targeted at immutable characteristics seem especially injurious to the public sensibilities because the nefarious perpetrate them for their own sake regardless of any other underlying action or intended gain. As such, statutes to sanction such offenses are necessary and proper. Statutes that seek to sanction the imprecise term of Hate Crimes are supportable, on the federal level, by way of the Commerce Clause or by way of the Post Civil War Amendments, and on the state level, by way of the police powers.

With issues of this gravity to the social fabric, it is critical to have tried and to have expressed a policy stance rather than not to have introduced legislation at all, despite the Sisyphus-like endeavor of pushing a rock up a legislative mountain.

Introducing legislation during the 2009 session to expand existing protections found at §10-304 of the Maryland Code to include the disabled would be in the interest of the public. Any such legislation would also attempt to address broader issues of crime prevention and restorative justice for such individuals. The same bill or concurrent legislation would also continue the struggle to pass protections against dog attacks of service animal handlers. Beyond legislative approaches, other avenues exist to address the criminal victimization of the disabled.

In an attempt to address issues of crime prevention and redress for the handlers of service animals, an avenue that an advocacy non-profit named the Maryland Area Guide Dog Users, Inc., encourages is for police agencies to designate an officer to serve as a liaison with the disabled.

MSBA Sections and Committees can collaborate on a range of initiatives to address Hate Crimes, especially, as targeted at such specific subpopulations as the disabled. For instance, select Sections and Committees can collaborate in hosting a daylong conference to discuss and formulate strategies to address issues encountered by the disabled in law enforcement.

Gary C. Norman is the 2008 recipient of the Edward F. Shea, Jr., Award, Chair-Elect of the MSBA Animal Law Section, and a frequent writer and speaker on disability law and policy.

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Publications : Bar Bulletin: September 2008

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