In 2018 it was a synagogue in Pittsburgh targeting Jewish people. In 2019 a Walmart in El Paso targeting Latinos and now in 2022 a supermarket in Buffalo targeting African Americans and a grammar school in Uvalde, Texas, whose motives remain unknown. These, are just a few of the high-profile crimes targeting people solely because of their race and/or religion. For the common person, clearly a hate crime. Yet, under the eyes of law it’s more nuanced and technical. It also begs the question, why is it so hard to get these heinous acts prosecuted as hate crimes? A category that provides a more appropriate level of justice and disincentive to engage in this conduct. We decided to look at the law, the problems in practice and if there is a fix.
The Law
According to the Department of Justice a “hate crime” is at the federal level, a crime (such as assault, murder, arson, vandalism, or threats to commit such crimes) motivated by bias against race, color, religion, national origin, sexual orientation, gender, gender identity, or disability.
Easy enough when viewed on an academic level and even in the eyes of a layperson. However, many authorities will tell you, while some hate acts may rise to the level of hate crimes, investigators would initially need to demonstrate that, first, the act is a crime and, second, that it was motivated by hate. It’s the second part that poses the challenge. As it is always an uphill battle to prove since no one can read a criminal’s mind. This means there needs to be an overwhelming amount of evidence demonstrated the crime was motivated by one of the enumerated categories.
The Problem
Aside from the challenge of proving an act was motivated by hate of someone’s race, religion, gender or sexual orientation there exists a gap between federal and state law. The Federal government has a hate crime law that bans crimes based on the above definitions and standards. Although the Federal government will take on some of cases, it doesn’t have the resources to enforce its law against all hate crimes nationwide. Which leaves it to the states, which have a Hodge podge of laws. Some protect race, but not sex, some sex but not race and so on. Some states such as Arkansas, Indiana and South Carolina have no such laws at all.
Then there is the practice of regarding charging and prosecuting hate crimes. Many states will view it as an enhanced crime. In other words, there is the initial underlying crime, such as for example an assault, and if race, gender, religion, or any of the enumerated categories is involved and prosecutors can gather enough evidence to support it, a prosecutor may seek an additional enhanced charge of a hate crime.
However, even if prosecutors can gather enough evidence and get an indictment that includes a hate crime charge, plea bargaining often ensues and hate crime charges are dropped by the time a conviction occurs.
According to data obtained by The City.NYC from the Division of Criminal Justice, of the 569 hate crime arrests in New York City between 2015 and 2020 only 65% ended with convictions. Of that the hate crime component was dropped in most of the cases with only 87 or 15% of hate crime arrests resulting in hate crime convictions.
The Fix
Unfortunately, there may not be one. A multitude of factors contribute to the problem. Including lack of resources, lack of reporting and the view held by many that characterizing a crime as a hate crime does not actually serve as a deterrent.
The issue of resources is clearly not lost on the Department of Justice. Who recently unveiled new guidelines and $10 million in new federal grants to combat hate crimes as well as helping states develop hotlines for reporting bias incidents. The State of New York has also addressed the resources issue, albeit from a different angle. Rather than fund law enforcement they are supporting the communities directly. In their new enacted budget, they direct $25 million towards grants to non-profits, churches and community-based organizations that may be targeted based on their ideology, they also increase the reimbursement cap for victims of hate crimes by $2,000.
Yet, the biggest issue remains, even if states were to have more uniform hate crime laws, resources, and reporting. Would it be an effective deterrent? If not, why should the Federal, State, and local citizenry continue the fight? Perhaps Jack Levin, an expert on hate crimes from Northeastern University summarized it best when he told Vox.com “Hate crime laws have important symbolic meaning,” Levin said. “Hate crimes are message crimes — that is, they send a message not only to the primary victim but to every member of this group…That’s the kind of message that has to be counteracted. And I think hate crime laws do that. They send a message to two groups: They send it to the perpetrator, informing him that our community will not tolerate his intolerance. And then at the same time, they send a message to potential victims that they are welcome in our community.”