black lives matter
What Does It Take To Prosecute a Hate Crime?
The killings of Ahmaud, Breonna, George, and so many others, were unquestionably motivated by racial bias. But our justice system has a shaky history of prosecuting hate crimes.
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We’re now entering our third month of protests and widespread calls for action against racial injustice and discrimination in America. The current Black Lives Matter movement was sparked by a series of killings of Black people this year—Ahmaud Arbery gunned down by white men while jogging; Breonna Taylor shot in her own bed; George Floyd suffocated under the knee of a white police officer. But these are just the recent incidents, the freshest haunting memories. This movement is for all of the lives lost. But while cries for justice are being heard more than ever, there’s another issue that needs urgent attention: When are we going to start examining these murders as hate crimes?
Arbery’s death is now being investigated as a possible federal hate crime, something advocates say law enforcement needs to be more aggressive in pursuing.
“Hate crimes are unique because they target an individual but they have a huge impact on entire communities,” says Becky Monroe, director of Fighting Hate & Bias at The Leadership Conference.
However, statistically, hate crimes are difficult to charge. The FBI defines a hate crime as a “criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.”
These crimes have a strong burden of proof. The motive for the crime has to be tied to some kind of bias and that bias has to be the reason the crime was committed. For example, if a Black person was randomly beaten up on the street by a white person, the white person could face assault and battery charges. If a prosecutor wanted to add a hate crime charge to the offense, whether at the federal or state level, they would have to prove that the white person attacked the Black person because of his race or religion or any other specific reason that would lead to bias. Experts say that the extra layer of proof is difficult to suss out and charge.
“A hate crime has to be bias-motivated and it can’t just be one of several possible motivations. It has to be the main reason,” Myesha Braden, a former Department of Justice prosecutor and current director of special justice initiatives at Alliance for Justice says. “You have to prove the existence of racial animus and that can be difficult.”
For the above example, prosecutors would need to know if the attacker said any racial slurs to the Black person that they beat up. They would want to know if the attacker has a past of making offensive racial comments, whether online or directly to people. Without information like this, it would be tough for a prosecutor to charge a hate crime.
Despite the difficulties, Braden says that when a hate crime is actually charged, it sends a clear message.
“The message of prosecuting and investigating a case as a hate crime is significant. You are telling the public that this is important and certain behavior isn’t acceptable,” Braden says.
According to the Department of Justice, three states (Arkansas, Wyoming, and South Carolina) do not have hate crime laws.
At the federal level, laws like the Civil Rights Act of 1968, The Violent Crime Control and Law Enforcement Act of 1994, and the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act allows the federal government to pursue these specific charges.
Experts, however, say that hate crime data is not reliable. Despite nearly all states having hate crime laws, 18 of them are not required to collect any data on these crimes so the actual number of hate crimes that happen are unknown.
“The vast majority of hate crimes are not even reported, so law enforcement doesn’t know that they are happening,” says Roy Austin, a former prosecutor in the U.S. Attorney’s office in Washington D.C. “Most prosecutors would prefer to just charge the underlying crime than the hate crime anyway. We don’t have a good track record.”
In 2018, The FBI reported a total of 7,120 hate crimes, which was slightly lower than the total in 2017, but The Bureau of Statistics reports that 250,000 hate crimes can happen in any year.
“The data, to use a technical term, sucks. It’s horrendous data,” Austin says. “Most of the states that have to share their data report close to no hate crimes. The laws on reporting crime must be changed.”
Over 16,000 law enforcement agencies in the country reported hate crime data to the FBI in 2018. Wyoming and Alabama did not report any hate crimes in 2018. Mississippi, Montana and Alaska all reported less than 10 hate crimes in their respective states.
“Law enforcement does not have the [proper] training to identify a hate crime,” Monroe says. “When the numbers go up, it shows that there is some trust [in law enforcement] from the community.”
Some examples of hate crimes being charged to a suspect at the federal level include the El Paso Walmart shooting and the Charleston Church massacre. Both of the perpetrators in these incidents had clear racial motivations for their crimes.
Other examples include incidents like cross burnings, burning Black churches, or hanging a noose.
Back in 2009, Braden was a prosecutor for a case in Shenandoah, Pennsylvania that went up to the federal level, when four white teenagers taunted a 25-year-old Mexican immigrant, Luis Ramirez with racial slurs. The altercation led to a fight and Ramirez was beaten to death. Witnesses said that the teenagers continued to use hateful language as they beat Ramirez.
At the state level, the teenagers were charged with hate crimes but the two who were facing the most serious charges (Brandon Piekarsky and Derrick Donchak), were acquitted of those charges and instead found guilty of misdemeanor assault and received up to 23 months in prison. The Latino population in Shenandoah was furious. Over 25,000 people signed a petition asking the Department of Justice to intervene. That’s when the U.S. Attorney’s office stepped in and both Donchak and Piekarsky were eventually charged with federal hate crimes. They each received nine years in prison.
This is an example of what can be done when dealing with hate crimes at the federal level, but it’s still very hard to prove these kinds of crimes, especially with the inconsistencies that exist at the state level. Some states don’t have penalty enhancement for crimes motivated by race, ethnicity, or religion. Others don’t penalize crimes motivated by sexual orientation. Only a handful of states have additional punishments for crimes motivated by political affiliation.
Last summer in Arizona, Elijah Al-Amin, 17, went into a convenience store after finishing a shift at his summer job. He was by the soda machines when a man, Michael Paul Adams, walked up to Al-Amin and stabbed him.
Witnesses said that there was no confrontation between the two and when Adams was arrested he told authorities that he heard Al-Amin listening to rap music in his car before he went into the store and that he felt “unsafe.” Al-Amin later died at the hospital. Al-Amin was Black, Hispanic and white. Adams is white. Adams also told law enforcement that he had previously been attacked by people who listen to rap music and those attacks came from “Blacks, Hispanics, and Native Americans.”
Al-Amin’s murder was followed by calls for a hate crime investigation. #JusticeForElijah began to trend on social media (and the hashtag now includes a call for justice for Elijah McClain, who died after he was put in a chokehold by a white officer and later heavily sedated last August). Referring to Al-Amin’s case, civil rights advocacy group, The Human Rights Campaign, said at the time, “We must call this what it is — a hate crime — and demand a thorough investigation at the highest level.”
Senator Cory Booker also tweeted about the incident, calling for the DOJ to investigate the crime. Despite the calls, Adams was not charged with a hate crime. According to police, even though Adams pointed out multiple races when he confessed in the killing “did not meet the threshold for hate crime charges.”
Adams was charged with first-degree murder and is awaiting trial.
Although community members can do more to report hate crimes and demand justice in situations where they feel someone was the victim of a hate crime, like the civilians did in the Shenandoah case, Austin believes the brunt of the responsibility is on law enforcement. “If law enforcement and legislatures fail to properly create laws and fail to properly investigate these then people aren’t going to report it,” Austin says.
Additionally, in light of the George Floyd, Breonna Taylor and, Rayshard Brooks killings, police officers themselves are being challenged for their actions and there are questions as to whether or not they should be charged with hate crimes in these incidents.
Braden says it’s even harder for a police officer to be charged with a hate crime since they’re committing these violent acts while doing their “police work.”
“When a police officer shoots someone or commits an act of violence against someone while performing their duty, you are going to have trouble proving causation,” Braden says. “The mindset of policing is ‘I have the right to bring you into submission using violent means when you fail to comply [with my orders]’”.
Police can typically fall back on the idea that they felt they were in danger or someone else was in danger when these shootings occur. Like civilians, unless the officer has a detailed and comprehensive background of making racially offensive comments or actions and those kinds of comments were made during the act of violence, it would be difficult to prosecute.
A case in New Jersey did see a former police chief charged with a hate crime. In 2016, former Bordentown Township Police Chief Frank Nucera Jr. arrested Timothy Stroyer, an 18-year-old Black man, at a Ramada hotel because he was using the pool without paying his bill at the hotel. Nucera reportedly slammed Stroyer’s head into a door jam. He was charged with a federal hate-crime assault and civil rights violation. When the charges came out, it was revealed that Nucera had a history of making racially charged comments. He allegedly said that he wanted to join a firing squad and shoot Black people. His 2019 case ended in a mistrial, but he will be tried again.
However, for the most part, these kinds of cases rarely happen. For activists, it all goes back to police doing a better job of building relationships and trust with the minority communities they’re supposed to be protecting.
“The responsibility is on law enforcement to gain trust in these communities,” Monroe says. “The people who are targeted are the same communities that will likely not have trust in law enforcement because of an ongoing history with discrimination. Targets fear reporting.”
In light of the Arbery killing, Georgia passed a hate crime bill on June 23rd. Judges can now increase the punishment for those who committed a crime against someone based on their race, religion, sex, gender, sexual orientation, physical disability, or mental disability. Activists hope that the attention on the Arbery case will lead to more aggressive prosecution of hate crimes across the country.
“This case is terrifying. We as a country need to show that we will fight for justice for all people,” Monroe says.
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