Will courts act as hate crimes surge?

Rights groups fear there could be less fed­eral fo­cus on bias at­tacks

The Washington Post Sunday - - POLITICS & THE NATION - BY ANN E. MARIMOW AND RACHEL WEINER ann.marimow@wash­post.com rachel.weiner@wash­post.com

Threats, van­dal­ism and re­cent shoot­ings across the coun­try have sparked out­rage and have been quickly de­cried as hate crimes:

The fa­tal stab­bing of a home­less black man in New York City on Mon­day by a white Mary­land man who po­lice said trav­eled to the city to act on his long har­bored ha­tred of black men.

The killing in Kansas of a man from In­dia and the wound­ing of an­other. Bomb threats against Jewish schools na­tion­wide and the des­e­cra­tion of Jewish ceme­ter­ies. The wound­ing of a Sikh man near Seat­tle.

But con­demn­ing a re­pug­nant act as a hate crime is far eas­ier than mak­ing that charge stick in court, and pros­e­cu­tions could be even less fre­quent if the Jus­tice Depart­ment shifts its ap­proach un­der a new at­tor­ney gen­eral who has in­di­cated that states should take the lead.

Some states do not have hate­crime laws. The ma­jor­ity that do don’t agree on what acts qual­ify. And atop con­flict­ing and cum­ber­some lan­guage, a court rul­ing in a case in­volv­ing Amish beard­cut­ting has raised hur­dles to pros­e­cu­tions even higher.

Win­ning a con­vic­tion means prov­ing that a per­son was mo­ti­vated, for in­stance, by the vic­tim’s re­li­gion, race, eth­nic­ity or sex­ual ori­en­ta­tion.

Yet ar­rests in a spate of bomb threats called in to Jewish schools and cen­ters na­tion­wide show how hard it can be to pin down mo­ti­va­tion. Po­lice say an Is­raeli teen ar­rested Thurs­day was be­hind the bulk of the threats, his mo­tives un­clear. Sev­eral ear­lier threats were made by a man try­ing to ha­rass his girl­friend, ac­cord­ing to law en­force­ment.

Some­times mo­ti­va­tion is ob­vi­ous, some­times not, said Steven M. Det­tel­bach, a for­mer U.S. at­tor­ney for the North­ern Dis­trict of Ohio who has pros­e­cuted hate crimes. “It’s an ad­di­tional bur­den” in a case, he said, “but it can be done.”

Fed­eral hate-crime charges gen­er­ally carry stiffer penal­ties than state statutes, which is one rea­son they are used. But as im­por­tant, pros­e­cu­tors said, is that a fed­eral pres­ence makes a broad pub­lic state­ment that the crime is dif­fer­ent in its in­tent and im­pact, ex­tend­ing well beyond an in­di­vid­ual vic­tim to strike at an en­tire com­mu­nity.

Treat­ing a hate crime in the same way as other crimes “be­lit­tles and min­i­mizes it,” said Det­tel­bach, who pros­e­cuted the Amish case.

Fed­eral pros­e­cu­tors long have been the back­stop for state of­fi­cials when it comes to bring­ing hate-crime cases. But At­tor­ney Gen­eral Jeff Ses­sions op­posed ex­pand­ing fed­eral hate-crime pro­tec­tions as a U.S. sen­a­tor and has sig­naled his pref­er­ence for hav­ing states be the spear­head — a stance that could have sig­nif­i­cant im­pact, given the patch­work of laws.

Dur­ing the Obama ad­min­is­tra­tion, fed­eral pros­e­cu­tors pur­sued a suc­ces­sion of hate-crime cases. One was against Dy­lann Roof, who was sen­tenced to death in Jan­uary for killing nine black parish­ioners in a church in Charleston, S.C. A con­vic­tion late last year in the mur­der of a trans­gen­der wo­man in Mis­sis­sippi was the first to rely on fed­eral pro­tec­tions based on a vic­tim’s gen­der iden­tity.

Some ad­vo­cates and aca­demics who track hate crimes say they are con­cerned that the Trump ad­min­is­tra­tion will in­ter­vene less, even as their or­ga­ni­za­tions record a rapid rise in threats and at­tacks, par­tic­u­larly against Mus­lims. Re­ported hate crimes against Mus­lims surged in 2015 by nearly 67 per­cent, to 257 in­ci­dents, ac­cord­ing to FBI statis­tics re­leased in Novem­ber.

A new re­port by the Cen­ter for the Study of Hate and Ex­trem­ism at Cal­i­for­nia State Uni­ver­sity at San Bernardino shows an over­all in­crease of 13 per­cent in hate crimes re­ported in 2016, with 1,812 in­ci­dents, ac­cord­ing to data col­lected from 15 U.S. cities and New York state.

At Ses­sions’s con­fir­ma­tion hear­ing in Jan­uary, Democrats pressed him about his vote against the 2009 hate-crimes law that cre­ated pro­tec­tions for peo­ple tar­geted be­cause of sex­ual ori­en­ta­tion and gen­der iden­tity. Hate crimes, Ses­sions said, are be­ing “pros­e­cuted ef­fec­tively in state courts where they would nor­mally be ex­pected to be pros­e­cuted.”

“We are ex­traor­di­nar­ily con­cerned that there will be a sig­nif­i­cant cut in pros­e­cu­tions, train­ing, me­di­a­tion, re­search and data col­lec­tion ini­tia­tives,” at the fed­eral level, said Brian Levin di­rec­tor of the cen­ter in San Bernardino.

Threats and com­plex­i­ties

Most hate-crime cases are han­dled at the state and lo­cal level, with fed­eral pros­e­cu­tors de­fer­ring to lo­cal law en­force­ment.

Five states — South Carolina, Ge­or­gia, Wy­oming, In­di­ana and Arkansas — have no hate-crime laws. Oth­ers, in­clud­ing the Dis­trict of Columbia and Kansas, leave it to judges to de­cide whether to im­pose stiffer penal­ties for hate crimes at sen­tenc­ing.

Most fed­eral pros­e­cu­tions of crimes in­volv­ing race, re­li­gion or gen­der re­quire sign-off from the at­tor­ney gen­eral or a hand-picked rep­re­sen­ta­tive. Thomas Wheeler, who was gen­eral coun­sel to Vice Pres­i­dent Pence when Pence was In­di­ana gov­er­nor, has been des­ig­nated by Ses­sions as the act­ing as­sis­tant at­tor­ney gen­eral over­see­ing civil rights cases.

After the bomb threats re­ported by Jewish schools and com­mu­nity cen­ters in at least 33 states and van­dal­ism of Jewish ceme­ter­ies, all 100 se­na­tors on March 7 signed a let­ter urg­ing “swift ac­tion” in­clud­ing “in­ves­ti­gat­ing and pros­e­cut­ing those mak­ing th­ese threats.” A Jus­tice Depart­ment spokesman de­clined to com­ment on the let­ter, which was ad­dressed to Ses­sions, FBI Di­rec­tor James B. Comey and Home­land Se­cu­rity Sec­re­tary John F. Kelly.

Beyond pros­e­cu­tions, the Obama-era Jus­tice Depart­ment be­gan manda­tory bias train­ing for more than 28,000 em­ploy­ees, formed hate-crime task forces through U.S. at­tor­neys’ of­fices and pro­vided grants to lo­cal or­ga­ni­za­tions work­ing to pre­vent hate-mo­ti­vated vi­o­lence.

“That’s the level of in­volve­ment that we’re hop­ing and press­ing for,” said Michael Lieber­man, Wash­ing­ton coun­sel for the An­tiDefama­tion League, one of the groups that pushed for pas­sage of the fed­eral 2009 Matthew Shep­ard and James Byrd Jr. Hate Crimes Preven­tion Act.

The chal­lenge in bring­ing fed­eral hate-crime cases has much to do with how the laws are writ­ten.

A ho­mo­pho­bic slur scrawled on the side of a gay club, for in­stance, is more dif­fi­cult to charge as a hate crime than the van­dal­ism of a church, syn­a­gogue or mosque be­cause re­li­gious in­sti­tu­tions have spe­cial pro­tec­tions as places of wor­ship un­der fed­eral law.

A 2014 rul­ing by the U.S. Court of Ap­peals for the 6th Cir­cuit in the Amish beard-cut­ting case added an­other ele­ment to the cal­cu­la­tions on when to move fed­er­ally, pros­e­cu­tors say.

The rul­ing came in the 2012 con­vic­tions of more than a dozen mem­bers of a break­away Amish sect in Ohio who cut off the beards of other Amish who had crit­i­cized their leader in what pros­e­cu­tors said was an at­tempt to pun­ish and hu­mil­i­ate the vic­tims.

The ap­peals court de­ci­sion over­turned the hate-crimes con­vic­tions, say­ing the in­struc­tions given to ju­rors had been too broad. For the at­tacks to have been hate crimes, the court said, the re­li­gion of the vic­tims had to be the prime mo­ti­va­tion be­hind an at­tack, not just a “sig­nif­i­cant fac­tor,” as ju­rors had been told.

‘A strong and clear mes­sage’

On Feb. 23, the day after the fa­tal shoot­ing in Kansas of an In­dian en­gi­neer by a white man who wit­nesses said had shouted, “Get out of my coun­try,” the Coun­cil on Amer­i­can-Is­lamic Re­la­tions called for state and fed­eral hate-crime charges to send a “strong mes­sage that vi­o­lence tar­get­ing re­li­gious or eth­nic mi­nori­ties will not be tol­er­ated.”

In Kansas, John­son County Dis­trict At­tor­ney Stephen M. Howe has worked closely since then with fed­eral agents who are in­ves­ti­gat­ing the shoot­ing as a hate crime. Howe said, how­ever, that fed­eral hate-crime charges may not be nec­es­sary as a means to en­hance penal­ties when a sus­pect can face a death sen­tence for a killing in state court.

“We’re more nim­ble than the fed­eral gov­ern­ment. We can move a lot quicker,” he said.

But fed­eral pros­e­cu­tors have at times de­cided “it is uniquely im­per­a­tive for the fed­eral gov­ern­ment to send a strong and clear mes­sage against par­tic­u­larly vi­cious acts of hate that ter­ror­ize vul­ner­a­ble com­mu­ni­ties and re­ver­ber­ate na­tion­ally,” said Vanita Gupta, the for­mer head of the civil rights divi­sion in Obama’s Jus­tice Depart­ment.

To un­der­score a broader state­ment about tol­er­ance, the divi­sion pur­sued hate-crimes cases even when lo­cal author­i­ties had filed charges with sim­i­lar penal­ties, es­pe­cially when states “do not have ro­bust hate-crimes laws on the books or have weak en­force­ment,” Gupta said.

In South Carolina, which has no hate-crime statute, the lo­cal dis­trict at­tor­ney had al­ready charged Roof with cap­i­tal mur­der, mak­ing him el­i­gi­ble for the death penalty, be­fore the Jus­tice Depart­ment also de­cided to act.

In an­other re­cent case, Joshua Bran­don Val­lum al­ready had been con­victed on state mur­der charges in coastal Mis­sis­sippi when fed­eral in­ves­ti­ga­tors got in­volved at the urg­ing of the lo­cal dis­trict at­tor­ney. Mis­sis­sippi does not have a hate-crimes statute that pro­tects peo­ple from bias crimes based on gen­der iden­tity.

Val­lum pleaded guilty in the fed­eral case to the bru­tal 2015 mur­der of Mercedes Wil­liamson, a trans­gen­der wo­man he had dated in a re­la­tion­ship he tried to hide.

Tony Lawrence, the dis­trict at­tor­ney, said that the joint in­ves­ti­ga­tion yielded crit­i­cal cell­phone ev­i­dence and that the sep­a­rate fed­eral pros­e­cu­tion made clear that “what­ever life Mercedes chose to live, she had a right to live it.”

DAVID SWANSON/PHILADEL­PHIA INQUIRER VIA AS­SO­CI­ATED PRESS

A group prays amid top­pled Jewish head­stones at Mount Carmel Ceme­tery in Philadel­phia on Feb. 27. Sev­eral hun­dred stones were felled.

BRENDAN MCDERMID/REUTERS

A rabbi sits out­side the Jewish Chil­dren’s Mu­seum in Brook­lyn with New York po­lice of­fi­cers nearby March 9 after a bomb threat.

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