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When is a Crime a Hate Crime?

Dylann Roof and the challenges of proving bias.

When a white gunman opened fire at South Carolina’s historic Emanuel African Methodist Episcopal Church on Wednesday night, killing nine African-American worshippers, Charleston Police Chief Greg Mullen said, “we believe this is a hate crime; that is how we are investigating it.” Attorney General Loretta Lynch likewise announced the Department of Justice had opened a hate crime investigation.

But “‘hate crime’ is a term that means something legally different than it’s used publicly,” says Barry Kowalski, a recently-retired lawyer with the Department of Justice’s Civil Rights Division, which is responsible for these prosecutions.

Dylann Storm Roof, center, is escorted from the Shelby Police Department in Shelby, N.C.

To prove a hate crime, prosecutors must prove not only that someone committed a particular crime, but also why: in this case, a jury would have to believe beyond a reasonable doubt that Dylann Roof killed nine people and that his actions were motivated by racial animus. In the Charleston case, this seems like a relatively straightforward proposition: The shooter didn’t just target a historically black church with a rich history of African-American activism. He allegedly said, in the course of his attack, “I have to do it. You rape our women and you’re taking over our country. And you have to go.”

It’s unusual that the motive is stated so clearly at the time of the crime, however. In cases where the motivation is less obvious, prosecutors must cast a wider net for proof: “Does the guy belong to a hate group? Can we get a search warrant for his computer? Did he say anything either immediately before or immediately after the crime? What is his connection to these victims?” says Bill Fitzpatrick, the Syracuse, NY District Attorney and President-Elect of the National District Attorneys Association. “It’s really no different than so much about the criminal justice system. What can you prove?”

Hate crime laws are generally “enhancement” statutes: when a crime is motivated by bias toward people of a particular race, religion, or other protected group, the punishment is more severe than it would be if the crime were committed for some other reason. In New York state, for example, if an assault was motivated by bias, the hate crime statute would allow a jury to add five additional years in prison to the sentence for assault. This is appropriate, says Richard Cohen, Executive Director of the Southern Poverty Law Center, because “hate crimes have the unique ability to send shock wave through communities,” Cohen says. “A hate crime is a terroristic act because it puts others who are similarly situated in fear.”

Prosecutors weigh other factors when deciding whether to bring hate crimes charges: the potential additional years “can be used as a hammer to try to get someone to plead guilty,” says Fitzpatrick. Additionally, a hate crime conviction “does bring some additional comfort to a victim’s family,” says Fitzpatrick. “Not only did the DA prove that my brother/sister/father was intentionally killed, but they also proved why they were killed. You give them a sense of justice.”

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These laws are not without their critics. “Is this penalizing free speech?” asks Michael Bronski, a Harvard media studies professor and co-author of the book, “Considering Hate: Violence, Goodness, and Justice in American Culture and Politics.” “The reality is that everyone, myself included, harbors any number of feelings of animus towards somebody.” The criminal justice system already provides for a crime to be punished. It may be emotionally gratifying to levy additional punishment for racist motivations, Bronski argues, but locking someone in prison for more years is not going to address the root causes of racism — and, given the racial gangs and alliances in prisons, perhaps might make it worse. “Hate crime laws are really this sort of psychological-emotional-cultural Band-Aid,” Bronski says. “The reality is that racism is rampant throughout our culture. To single out certain individuals as ‘haters,’ the media — and certainly white people — distances themselves from their own implicit part of how the system works.”

Because South Carolina lacks a hate crimes statute — it’s one of only five states that does not provide for additional punishment for crimes motivated by bias — the state prosecutor will not have that tool in her toolkit. But as Lynch indicated in her comments, the federal government can in certain cases prosecute hate crimes itself. Most of the Justice Department’s legal firepower comes from the 2009 Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, named for two hate crime victims (a Wyoming man targeted because he was gay and a Texas man killed because he was black). “The underlying authority for the federal government to get in on a murder is that if it’s done because of race, then it’s an offense against the 13th amendment to the Constitution, which gives people the right to equal treatment regardless of race,” says Kowalski, who oversaw many of the federal government’s most high-profile bias cases, including the 1993 prosecution of the Los Angeles police officers who beat Rodney King.

But whether or not the Justice Department will get involved is an open question. Kowalski says the Justice Department will typically investigate a case in tandem with the state so the feds are prepared to bring a case if they decide to do that later. But they will certainly wait to see what happens with the state case first. “My guess is, the department would probably watch that case closely. If there’s a successful state prosecution, and even if it doesn’t get the death penalty — if it gets life imprisonment without parole — they would probably say that vindicates the federal interest,” says Kowalski. If on the other hand “for whatever reason they only get a conviction for manslaughter, now the federal government has to decide whether that’s a vindication for the wrong that was committed. In that case, the answer is probably no, and the federal government would probably do something more.”

Because Roof faces the death penalty, a hate crimes statute would not likely have changed the outcome in his case. There’s no enhancement beyond death. But state legislators — colleagues of Clementa Pinkney, the pastor and state senator who was slain in the shooting — had been trying unsuccessfully to pass a hate crimes law for years. Charleston County Representative Wendell Gilliard said last year, “We have to have things in place to counterattack these situations because they're popping up everywhere in our society.”

Today Rep. Gilliard announced he "will make it his first priority" to reintroduce the hate crimes legislation in the coming term.