You probably heard about the four Chicago youths who kidnapped a mentally disabled 18-year-old male, tied him up, assaulted, tortured him, and taunted him with profanities against white people and Donald Trump. Perhaps you saw the video. The assailants actually live-streamed this 30-minute ordeal over Facebook; the video is revolting. The youths are being charged with multiple offenses and while the hate crime charge is getting the most attention, the most serious sentence exposure for these four relates to the mental disability of the victim.

In Illinois, as in California, certain crimes are “aggravated” when the victim is mentally disabled. This can substantially enlarge the potential sentence. For example, in the case of the Chicago four, the kidnapping charges alone stand to enhance the sentence by an additional 25 years (5 years max for kidnapping but up to 30 years when the victim is disabled).

In California, when the victim of a crime is disabled, whether mentally or physically, it can be an aggravating factor that can tack many additional years on to the defendant’s sentence as it applies to certain crimes. Many misdemeanor assault and battery crimes become a felony when the victim is disabled. Surprisingly, in California, unlike Illinois and many other states, kidnapping is not elevated to an aggravated crime if the victim is disabled.

Mentally disabled adults are at greater risk of violence. According to the Bureau of Justice Statistics report published in November of 2016, people with disabilities were 2.5 times more likely to be a victim of violent crime than those without disabilities. That statistic is troubling. There is no question that this is at least in part due to the fact that disabled persons are easier targets.

While states are addressing this issue with enhanced penalties when the victim is disabled, there are still many gaps in our laws. Many criminal statutes still do not carry an enhanced penalty when the victim is disabled, including many California statutes. However, under California Penal Code section 422.55, a person can be sentenced to additional punishment for a so-called “hate crime” and that statute includes “disability” as a protected condition under this statute.

But to prosecute under the California hate crime statute, it must be alleged that the crime was motivated, at least in part, by the fact that the victim was disabled. (This applies to all categories of hate crimes but I am discussing crimes against the disabled, in particular, here.) To prove that the crime is enhanced by the hate crime statute, there must be evidence that the crime was committed because the perpetrator of the crime is biased against the disability and that bias substantially motivated the criminal act. If a crime is targeted towards a disabled person only because the disabled person is an easy target, that would not fulfill the requirements for charging the defendant with a hate crime.

With almost 25 years of experience in criminal defense, William Weinberg is available to consult with you regarding any criminal matter. You can reach him at his Irvine office at 949-474-8008 or email him at