(Photo: Paul Sableman/Flickr)

Facebook live has become an unexpected witness to the best and worst of us — it has streamed multiple police shootings, allowed BuzzFeed staffers to mutilate a watermelon, and, in early January, broadcast a gruesome torture scene. In the shaky, poorly lit video, four people surround a bound 18-year-old disabled man, shouting at him, kicking his head, and cutting him. The incident appears to have gone viral not so much because of the disability angle, but because of a racial one: The young man is white, and his four attackers, charged with committing a hate crime, kidnapping, and battery, among other things, are black.

The case quickly became a cause celebre among white supremacists, who have referred to it as the “Black Lives Matter Kidnapping” and claimed it to be a “hate crime” — a crime of black people terrorizing a white man because of his race. Even a police official appears torn: Is this about race, or is it about disability?

Answering this question proves complicated. Disability often makes people minimize cases of abuse and torture, turning them into “pranks” or “bullying” rather than recognizing them for what they are — unless the victim is white and young, and the crime involves one or more perpetrators of color. Exploring the tangled circumstances surrounding this case and others like it reveals that, as elsewhere, the race of victims and perpetrators has an influence on how crimes are handled. It also demonstrates the need for reforms to shift the way we talk about race, disability, and the legal system.

In September of 2003, law enforcement found a severely beaten disabled black man, Billy Ray Johnson, by the side of the road after receiving a tip-off from a member of the public — who ultimately turned out to be one of the people who’d participated in his beating. As a result of the injuries, Johnson, 42, now requires continuous skilled nursing care and has been moved to live in an institution. Juries in the cases of his four assailants rejected felony convictions, instead convicting the white men of misdemeanors and recommending suspended sentences. In 2007, the Southern Poverty Law Center successfully sued for $9 million in damages in civil court.

Three years later, in 2010, Jennifer Daugherty, a white disabled woman, was tortured and killed by a group who came to be known as the “Greensburg Six.” Her case sparked a horrified response and harsh sentences for some of her killers — Melvin Knight, the one black defendant, was sentenced to death, as was Ricky Smyrnes, considered the group’s ringleader.

Is this about race, or is it about disability?

In October of 2015, a black disabled football player was attacked and raped by two white teammates in a case that sparked concern because it was labeled “bullying” and neither hate nor sex crimes charges were brought. Despite the fact that his teammates referred to him using racial slurs and forced a coat hanger up his rectum, John R. K Howard, the leader of his assailants, was able to enter an Alford plea, pleading guilty to a lesser charge and maintaining his claim of innocence.

The horrifics go on, but it’s clear: Disabled lives are often devalued, especially when they are disabled people of color, with white-on-black crime in particular taken less seriously, while white victims of people of color are more likely to see justice. Disabled people are more than twice as likely to be victims of violent crime overall, but law enforcement may be reluctant to consider these cases as hate crimes, notes the Leadership Conference — they may instead be lumped together as “abuse.” Consequently, in 2014, disability accounted for a little over 1 percent of hate crimes reported to the Federal Bureau of Investigation, and the nature of disability hate crimes is poorly understood.

Overlap between disability and race cannot be brushed aside when discussing how and why crimes against disabled people are prosecuted. Recent Census data show that 22 percent of black people in the United States are disabled, in contrast with just 17 percent of whites. This has to factor into discussions about how to address and accurately identify crimes against disabled people — often they are not just disability hate crimes, but also racial hate crimes. But hand-in-hand goes the issue of racial inequalities in the justice system, determining who is sent to prison, why, and for how long; a “tough on crime” approach to disability-related crimes could exacerbate social and judicial inequalities.

This response to this kind of violence is often a legal crackdown. Hate crimes laws reflect this approach by creating a specialized classification for crimes deemed to be motivated by bias, but they may not be effective, and could, in fact, have hidden consequences.

A great deal of the research on hate crimes comes from the push to more aggressively prosecute crimes against LGBQT people, particularly through the Matthew Shepard and James Byrd Act of 2009, which dedicated resources to assisting with the prevention and prosecution of hate crimes. Hate crimes legislation may reclassify crimes or enhance sentences, including creating a framework for mandatory minimums. The argument in support of such laws is that they should act as a deterrence, but the Department of Justice notes that there isn’t really enough data to draw firm conclusions.

Yet, research on such laws suggests that they aren’t very effective. Organizations like the Sylvia Rivera Law Project actually oppose them, arguing that they have a tendency to perpetuate injustice for people of color. The civil rights organization notes that mass incarceration is a significant problem for communities of color, and that hate crimes legislation can feed unjust incarceration without resolving the underlying problem: “As an organization that centers racial and economic justice in our work and that understands mass imprisonment as a primary vector of violence in the lives of our constituents, we believe that hate crimes legislation is a counterproductive response to the violence faced by LGBT people.”

Because it can be difficult to categorically define a hate crime, they become victims of selective enforcement, the very issue that makes many organizations helmed by people of color nervous. When the definition of a “hate crime” is slippery and prosecutors are facing pressure from the public, that can result in a racist outcome. The white football player is suddenly engaging in teenage hijinks when he assaults a black teammate, for example, while the black youth is committing a hate crime against an innocent white victim. Both victims are disabled and the crimes are similar, but racial dynamics have disrupted the way people view the two cases.

If a justice system-driven approach to reform isn’t the solution, perhaps the answer lies closer to home, with law enforcement and community interventions. Does the answer lie in better training for law enforcement to help agencies identify and prosecute bias-motivated crimes, paired with community outreach to act as a deterrent?

Law enforcement reforms aimed at identifying and prosecuting bias-motivated crimes, with or without hate crimes laws, have been proposed as a means of addressing disability hate crimes, paired with community outreach. However, these measures are not necessarily effective: Systemic racial bias in American policing makes weighing considerations of race challenging, as officers with unexamined racial bias will carry it with them when they interact with suspected hate crimes.

Several cities, including Sacramento and New York, have formed hate crimes task forces to take these issues on. These units include dedicated, specially trained investigators who explore suspected hate crimes, often with support from state and federal agencies. This approach, however, still relies on the justice system and the response to hate crimes, not their prevention. Such task forces place a heavy emphasis on prosecution, but it may not necessarily be informed by a look at which crimes are classified as hate crimes and how they are handled.

“I’ve been told several times that talking about race and intersectionality within the disability community is divisive or a distraction from the ‘real’ issues.”

The International Association of Chiefs of Police expands the conversation about law enforcement involvement in hate crimes investigation, discussing legal interventions but also probing into the role of community outreach and involvement to prevent hate crimes. That includes monitoring hate groups, leading workshops and training, working with youth, and collaborating with community leaders.

However, there’s a glaring problem: Systemic racial bias in American policing makes weighing considerations of race challenging, as officers with unexamined racial bias will carry it with them when they interact with suspected hate crimes.

Conversations about disability hate crimes have to include the community itself in discussions about solutions, not least because social movements tend to steer classifications of hate crimes, and, thus, their approach to the problem matters. The way the disability community responds to individual crimes can become a factor in their prosecution, and the advocacy work of leaders in the disability community may influence how law enforcement and other authorities handle suspected disability hate crimes.

And the disability community, it turns out, has a race problem.

While disabled people are sometimes viewed as a monolith, the community itself is actually quite diverse. Some view the disability rights movement as white-dominated, and driven by the concerns of the white disability community, in contrast with the disability justice movement, led by people of color and taking an explicitly intersectional approach to disability. Disability is also plagued with the same respectability politics that dog other underrepresented groups, which means that, when the non-disabled community turns to the disability community for input, some voices tend to be weighted more heavily than others.

Those voices are often white, and may be unfamiliar with the racial complexities of talking about hate crime, which creates intracommunity tension: When the people who claim to be speaking for you are advocating against your interests and expressed concerns, it suggests that they are not listening to your needs. “I’ve been told several times that talking about race and intersectionality within the disability community is divisive or a distraction from the ‘real’ issues,” says Alice Wong, a disability activist and leader of the Disability Visibility Project. “These experiences show a fear by some in the community of losing their perceived capital or leverage. To me, this is all part of the scramble for power pitting the disability community in competition with other groups.”

“The delivery of justice and treatment disparities and why this grave failing doesn’t ring more alarm bells and receive amplification throughout disability community is astounding and sadly not surprising,” says Heather Watkins, a disabled black woman who notes striking disparities in the response to hate crimes from the media, the justice system, and the disability community.

As the math on crimes against the disability community paired with an understanding of the racialized shortcomings in hate crimes enforcement overall illustrates, racial issues cannot be viewed as a secondary distraction. In fact, they’re core to tackling the issue of crime against the disability community, for they determine who is viewed as an easy victim and the kinds of cases that the disability rights movement tends to agitate around, as well as who actually faces harsh sentences for hate crimes. While the solution to disability hate crimes isn’t simple, one thing is clear: It needs to be led by the disability movement itself, because it knows the issue most intimately, and that movement must address its racial problems before it can hope to present a cogent, intersectional approach to resolving the issues that make the disability community so vulnerable to violence.