by Jeannine Bell, Loyola University Chicago [This article first appeared in The Conversation, republished with permission]
The 22-year-old suspected gunman at a gay nightclub in Colorado Springs, Colorado, who allegedly killed five and injured dozens, faces five counts of murder and hate crimes.
Hate crimes are known in Colorado as “prejudice-motivated” crimes. Charges against the shooter are still preliminary, although Colorado Springs Mayor John Suthers said the attack had “all the hallmarks of a hate crime.”
The mass shooting brings back memories of the 2016 massacre at the Pulse nightclub in Orlando, Florida, which killed 49 people.
Hate crimes are on the rise in the US, but officials are often reluctant to quickly classify incidents as hate crimes. Hate crimes are subject to specific legal requirements. And even when police and prosecutors believe the elements of a hate crime are there, such crimes can be difficult to prove in court.
What is a hate crime?
I have been involved with hate crime and policing for over 20 years.
Hate crimes are crimes motivated by prejudice based on race, religion, sexual orientation or ethnicity. In some states, gender, age and gender identity are also recorded. Hate crime laws have been passed by 48 states and the federal government since the 1980s, when activists began urging state legislatures to recognize the role of prejudice in violence against minorities.
To be charged as a hate crime, attacks – whether assault, homicide, or vandalism – must be directed against individuals because of the prohibited bias. In other words, hate crime laws punish motives.
The prosecutor must convince the judge or jury that the victim was assaulted because of race, religion, sexual orientation, or some other protected characteristic.
If the accused is found to have acted out of biased motivation, hate crime charges often add an additional penalty to the underlying charge. Accusing people of a hate crime adds complexity to what might otherwise be a straightforward case for prosecutors. Bias motivation can be difficult to prove, and prosecutors can turn down cases they may not win in court.
But it can and will happen. In June 2020, Indiana resident Shepherd Hoehn placed a burning cross and a sign with racial slurs and epithets in front of the construction site where his new neighbor, who is black, was building a home.
Hoehn was arraigned and later pleaded guilty to Indiana hate crime charges. A few months later, Maurice Diggins was convicted by a federal jury of a 2018 hate crime for breaking the jaw of a Sudanese man in Maine while shouting racial slurs.
How to accuse a hate crime
The first use of the term “hate crime” in federal law was the Hate Crimes Statistics Act of 1990. This was not a criminal law but rather a data collection requirement requiring the US Attorney General to collect information about crimes that was “evidence of prejudice”. based on race, religion, sexual orientation, or ethnicity.”
States soon began enacting their own laws recognizing crimes of prejudice. But hate crime legislation has not led to many indictments and convictions.
Law enforcement officials struggle to identify hate crimes and prosecute offenders. Although 48 states have hate crime laws, 88% of law enforcement agencies, including local and state police departments, reported to the FBI that not a single hate crime was committed in their jurisdiction in 2020.
I have found that police departments are rarely organized to develop the expertise needed to effectively investigate hate crimes. When police departments have specialized police units and prosecutors dedicated to fighting hate crime, they can develop routines that allow them to investigate hate crime in a way that is supportive of victims.
In the late 1990s, I studied a specialized hate crime police unit in a city I dubbed “Center City” for the sake of anonymity. My book revealed that these detectives could distinguish non-hate crimes — for example, when the perpetrator angrily used the N-word in a fight — from cases that were genuine hate crimes, such as when the perpetrator used it during a targeted attack on a black person .
Without the proper training and organizational structure, officers are unsure of what are common indicators of biased motivation and tend to assume they must go to extraordinary lengths to find out why suspects committed the crime.
limits of the law
Advocates for victims of hate crime claim that police and prosecutors can do much more to identify and punish hate crimes.
Empirical evidence supports their claims. The FBI’s 2019 report includes 8,559 bias crimes reported by law enforcement agencies. But in the National Crime Victimization Survey, victims say they experience an average of more than 200,000 hate crimes each year. This suggests that the police overlook many hate crimes that have taken place.
Distrust of the police, particularly in black communities, may even discourage minorities from calling the police when they are victims of a hate crime for fear they may also be victims of police violence.
All of this means that hate crime perpetrators may go uncaught and commit crimes again, further harassing communities that hate crime laws are designed to protect.
Hate crime laws reflect American ideals of fairness, justice, and justice. But if bias-motivated crimes go unreported, well-investigated, charged, or tried, it doesn’t matter what state law says.
Editor’s Note: This story incorporates material from a previous story published on March 19, 2021.
Jeannine Bell, Professor of Law, Loyola University Chicago
This article was republished by The Conversation under a Creative Commons license. Read the original article.