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 hate crime 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 beard-cutting 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 filed 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 at 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.
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 Anti-Defamation 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.
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 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.”