The Anti-Violence Project of Massachusetts strongly condemns the decision of a judge of the Boston Municipal Court May 27th to allow an admitted, convicted gaybasher to walk free. Defendant Fabio Brandao pled guilty to various charges including hate crimes charges arising out of his August 24, 2008 attack on three gay men and a woman walking along Columbus Avenue in Boston. According to Bay Windows, Brandao and three unapprehended fellow perpetrators “beat two of the men in the group so severely that they sustained concussions and have no memory of the assault. Throughout the attack the assailants allegedly called the victims ‘fucking faggots’.” See “South End Gaybashing Suspect Pleads Guilty,” May 27, 2009, at http://www.baywindows.com/inde… .
Judge Thomas Horgan of the Boston Municpal Court, an appointee of former Governor Paul Cellucci, rejected the recommendation of Suffolk County District Attorney Daniel Conley that Brandao be incarcerated. Commenting on the “wrist slap,” Anti-Violence Project Chairperson Don Gorton accused Judge Horgan of “transgressing the will of the people of Massachusetts, as expressed by our legislature. Not one, but two criminal statutes provide for enhanced penalties for hate-motivated violence against LGBT people: G.L. c. 265, § 37; and G.L. c. 265, § 39.”
Ironically, the Governor who appointed Horgan to the bench was himself instrumental in securing tougher legal penalties for gaybashing. Former Governor Cellucci, as Lieutenant Governor, helped pass amendments to G.L. c. 265, § 39 in 1996 which provided a 5 year felony prison sentence for anti-gay hate crimes that leave victims injured.
Gorton denounced the sentence as “a brazen act of judicial nullification. The safety of LGBT Bostonians is put at unacceptable risk when anti-gay violence, marked by the legislature for enhanced punishment, is met with leniency instead. The criminal justice system failed our community in the Brandao case, as it has done so often in the past.”
Discuss
21 Comments . Comments are closed.Forget hate crime enhancements.
My question is why would a judge let anyone who "beat two of the men in the group so severely that they sustained concussions and have no memory of the assault" walk regardless of motive. Personally, I believe the state should be allowed to appeal sentences and judges should be required to submit a written opinion for the record when those sentences do not adhere to the legal guidelines.
I have a theory as to why
The victims were gay. In many years of anti-violence advocacy, I have noted that judges show a marked aversion to punishing violent criminals who beat up LGBT people. Hate crimes statutes are supposed to counteract the historic reluctance of prosectuors and judges to treat crimes against unpopular groups less seriously. But there is no recourse against jury or judicial nullification.
Judicial discretion was clearly abused. The Anti-Violence Project is looking for reforms and solutions to the problem this sentencing decision reflects.
I'm not buying it.
Maybe it's wishful thinking, but I can't quite fathom a Massachusetts judge being blatantly hostile to the LGBT community. (The Bible Belt would be another story.) Again, here the operative concept is "violence" regardless of victim. I'd also now like to know what this judge's sentencing record is overall. Is he generally soft on crime and/or generally homophobic?
Only lawyers who appear before him would know that
Your optimism about Massachusetts judges is less plausible with respect to the District Courts.
I don't buy your not buying it,
at least unless you provide an alternate, plausible explanation for the judge's actions. Why do you think there is no longer homophobia in high places in MA? Don't you remember the knock down drag out fight over that only ended last year? Do you think all the opponents of decency just vanished the day the amendment was defeated?
$quot;fight over marriage equality$quot;
left out a few words there...
There may be other explanations
I have no idea and would need to know the record. Maybe I have a streak of Massachusetts exceptionalism in me or something, but I just cannot imagine our state's elites tolerating violence on this basis, or at least such being confirmable for a judgeship. Like I said above maybe it is wishful thinking. This is a lot more fundamental to humanity than marriage equality. I doubt the vast majority of people who oppose marriage go to the extreme of condoning violence against LGBTs.
It only takes a small minority to terrorize the populace
and some of the "vast majority" purporting to oppose anti-gay violence use hateful rhetoric that propels the bashers' fists.
I would say that many Massachusetts judges are quite willing to "condone" anti-LGBT violence, by which I mean unwilling to send convicted bashers to jail despite serious injury to victims. A short stint of volunteer work with the Anti-Violence Project would disabuse you of your "Massachusetts exceptionalism."
That's really sad.
Might be a good time to consider
having a wise Latina woman with the richness of experiences who might often than not reach a better conclusion than a white male who hasn't lived that life.
She might have had a point.
My gut feeling was that this guy should have done time.
More useful than my gut feeling would be an investigation (by reporters, academics, or regular folks) of similar cases of first time A&B convictions, where injuries were sustained, and the sentences handed down by Horgan in these cases.
Sorry- not $quot;convictions$quot; but $quot;guilty pleas$quot;
I originally missed the part about the attacker pleading guilty.
Hate crimes that leave victims injured are supposed to draw stiffer punishment
Massachusetts law has two penalty enhancement statutes that should have triggered more than the usual sentence for first time A&B. The comparison is inapposite. To ignore the evidentiary difference would be to nullify enacted laws.
For all those who believe, differently from the Mass. legislature, that hate crimes are "thought crimes" that shouldn't draw extra punishment: your logic proves too much. By such reasoning there could be no anti-discrimination laws. Remediable discrimination is merely, e.g., an adverse job determination coupled with the same degree of politically incorrect "thought" as the hate criminal brings to his violence. Motive defines unlawful discrimination, which the courts will remedy even while denying relief where the same adverse action is taken for a different, non-prohibited reason.
The late Chief Justice Rehnquist, no mean liberal, pointed out this flaw in the "thought crime" argument against hate crimes when he rejected the constitutional challenge to hate crime laws for a unanimous court in Wisconsin v. Mitchell in 1993.
Fair enough.
That is indeed more accurate.
There is a difference though.
Employers legally have broad discretion in whom they hire/fire and the ONLY illegal part would be the discrimination, provided that a specific law against such discrimination has been enacted. Assault, on the other hand, is already a crime regardless of motive (save perhaps self-defense). It reminds me of an exchange Bush and Gore had at one of the 2000 debates. Gore challenged Bush for not signing hate-crimes legislation in TX and brought up the case of James Byrd, a black man who had been dragged to his death. Bush pointed out that Byrd's murderers were going to face the death penalty and implicit in his tone was the question, "What more do you want?", which is ironic since liberals generally oppose the death penalty. In this case, it seems the sentence was too lenient for assault regardless of the suspect class status of the victim.
The difference between discrimination and violence
does not undermine the logic of penalty enhancement. If the bias motive turns an otherwise legal act into a civil wrong, it can certainly aggravate the severity of an otherwise illegal act. In states that have the death penalty a profit motive for murder is considered an aggravating circumstance, more likely to trigger the ultimate penalty. Is a bias motive somehow worthy of greater First Amendment protection than a mercenary motive for murder, or when it propels a crime of violence as opposed to an adverse job determination?
Wyoming is a death penalty state, and Matthew Shephard's murder involved multiple aggravating circumstances. Yet his killers are alive today. The LGBT movement tends to be liberal and our leaders largely oppose the death penalty, so we could hardly protest when the less severe punishment was meted out. But the disparity in the treatment of James Byrd's murderers and Matthew Shephard's killers is instructive. What more do we want--equal justice, and we're not there yet. Bush was just clueless.
For a good account of how crimes against gays have long been historically treated as less serious, check out David Eisenbach's "Gay Power" about the work of the Gay Activists' Alliance in the early 70's. It is the fact that the system is less solicitous of gay victims that necessiates hate crimes laws in the first place, and sometimes they don't work, as here.
At the same time I fully agree that this aggravated A&B should have been punished with jail time regardless of the victims' minority status. The District Court judges generally don't take violence seriously enough, and prosecutors would rather concentrate on drug crimes to take advantage of asset forfeiture incentives.
Question
All of Matthew Shepards are serving life sentances, and 2 of Byrds killers got the death penalty and 1 got life.
This might just be me, but the death penalty seems more merciful than the rest of your life in a prison. I don't really see where the disparity it is.
You can hear one of the victims describing his experiences
at this web site: http://jrh456.blogspot.com/
From The Reddest Ass In Massachusetts
Yes, it is an outrage!
Has anyone looked into this judges record
To see if he is habitually lenient or anything like that?
For those too lazy to read the article
It's worth noting that the DA recommended 1 year jail term, six months of it suspended. The guy got 2 year jail term, 2 year suspended. If he doesn't do anything like this for the next two years, everyone is better off -- nobody else will be hurt, he won't harden in jail, and the taxpayers won't pay for it. If he does do anything like this again within the next two years, he'll pay more dearly than the DA recommended due to the judge's sentence.
Nothing in the article indicated if Brandao had any prior history.
Nothing in the article explains how the other three men are at large -- why didn't the judge hold Brandao's feet to the fire to get him to drop the dime on his friends?
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