Charlottesville, Virginia. August 12th, 2017. White nationalists, alt-right members, and neo-Nazis clashed with counter-protesters. A grey Dodge Challenger plowed into a group of counter-protesters. When the dust cleared, three people were dead and many others were injured.
A few days after the violence ended, the United States Department of Justice announced a civil rights investigation into the deadly car crash. Meanwhile, state officials charged the suspect, James Alex Fields Jr., with second-degree murder. While the criminal and civil rights investigations continued, a strong point of contention was whether the crime should be considered a hate crime, an act of domestic terrorism, or something else entirely.
What does it take to classify something as a “hate crime?” The federal Hate Crime Acts, 18 USCA § 249, created, among other things, federal protection for hate crimes even where there is no connection to interstate commerce. Specifically, the statute focuses only where the crime occurred due to race, color, religion, or national origin. Additionally, the provisions of the statute could be prosecuted only through the Attorney General’s certification that (1) the State requested federal involvement or (2) the State prosecution is not possible or produced an unjust outcome. Currently, only five states have no hate crime laws: Wyoming, Indiana, Arkansas, Georgia, and South Carolina.
Along with the federal statute, it is necessary to turn to the state statute in determining whether the fatal car crash can be considered a “hate crime.” The Virginia hate crimes statute defines a hate crime as “a criminal act committed against a person or his property with the specific intent of instilling fear or intimidation in the individual against whom the act is perpetrated because of race, religion, or ethnic origin.” While both statutes give a similar definition of “hate crime,” neither provides for an immediate decision of whether or not a crime can be considered a “hate crime.” In either case, it is up to the prosecutor, or Attorney General, to use his or her discretion.
Unfortunately, the discretion of a prosecutor or Attorney General is more important now than ever as statistics released by the Federal Bureau of Investigations show a drastic increase in the number of reported hate crimes for 2015. The Southern Poverty Law Center, also, counted 900 incidents of hate or bias in the ten days immediately following the 2016 election: 1,094 incidents in the first month, and 1,863 between November 9th and March 31st. As hate crimes continue to spike, it is important for law enforcement agencies to combat the rising storm.
When battling the uptick in “hate crimes,” three methods that may be used by state law enforcement agencies are (1) the criminalization of hate, or bias-motivated crime; (2) the use of a proof of hate crime checklist; and (3) the creation of a “hate crime task force.”
Firstly, almost all states have criminizalized hate-, or bias-motivated, crimes. As stated earlier, only Arkansas, Georgia, Indiana, South Carolina, and Wyoming do not have hate crime laws covering bias-motivated violence. Within the states that do have such criminal statutes, most legislation takes the form of penalty-enhancement, rather than new statutory crimes.
Secondly, when attempting to convict a defendant under a specialized “hate crime” statute, a prosecutor can follow a specialized checklist, requiring evidence that the defendant (1) committed an act prohibited by law; (2) selected the victim because of the victim’s race, color, religion, national origin, disability, gender, sexual orientation, etc.; and (3) demonstrated bias or prejudice against that characteristic of the victim.
Lastly, some states have supplemented their criminal “hate crime” statutes with special training for law enforcement officers. The training would focus on identifying hate crimes and dealing with them specifically. Specially trained officers may also be divided into task forces or enforcement units.
With hate crimes on the rise, and federal response unsure, it is imperative that state law enforcement and legislation prepare to identify and handle bias-motivated crime. Increased penalties, the use of checklists, and further training for officers are just a few steps that can be taken. Hopefully, with these tactics in place, the United States will return to the peaceful country it once was.