When a man opened fire at the Chabad of Poway, near San Diego, on Saturday, it was the last day of a major Jewish holiday and the six-month anniversary of the mass shooting at Pittsburgh’s Tree of Life synagogue. The 19-year-old suspect — accused in the killing of one and wounding of three, all of whom were Jewish — is reported to have espoused white-supremacist and anti-Semitic dogma.
Political and religious leaders around the nation were quick to condemn the attack and voice their support of the Jewish community.
“We forcefully condemn the evil of anti-Semitism and hate,” Poway Mayor Steve Vaus said during an interview with MSNBC. “I can tell you that it was a hate crime, and that will not stand.”
President Trump also expressed his “deepest sympathies” for the victims of the shooting, which he said “looks like a hate crime.” The president condemned anti-Semitism and hate crimes at a political rally in Wisconsin on Saturday night.
But the colloquial “hate crime” differs from the criminal conduct that bears the same name — and they are not always interchangeable under the law.
What is a hate crime?
The definition of a hate crime varies from state to state.
In most states, crimes can carry heavier sentences if the victim was singled out because of his or her gender, nationality, race, religion or sexual orientation. Many states, including California, also have a stand-alone hate-crime section in their penal code.
“One difference between states is whether the list of protected categories align,” said Robert Weisberg, co-director of Stanford Law’s Criminal Justice Center. Some states do not include “sexual orientation” or are ambiguous about whether transgender people are legally included under “gender,” he said.
The federal government also has its own hate-crime laws, which include religion among the protected statuses. The Hate Crimes Prevention Act, passed in 2009, added gender, sexual orientation and disability to the list of protected characteristics. The act allowed the federal statute to be more in sync with many state laws.
The biggest discrepancy across state and federal jurisdictions is the possible punishment for a hate crime, particularly when sentencing is discretionary for the prosecutor.
How does California define ‘hate crime’?
In California, a hate crime can be defined two ways:
There is a stand-alone, hate-crime statute for interfering with someone’s civil rights because of his or her protected status, including religion.
A hate crime can also be used as a factor to increase the penalty of an underlying crime. Under state law, a hate crime is motivated, in whole or in part, by a protected characteristic of the victim; California’s definition includes disability, gender, nationality, race or ethnicity, religion and sexual orientation.
“If you commit a crime against someone because they’re Jewish, that’s a hate crime under California law, and it can elevate the penalty,” said David Sklansky, co-director of Stanford Law’s Criminal Justice Center.
If someone is convicted of first-degree murder and prosecutors prove it was a hate crime — that the killing was committed in whole or in part because of the victims’ religion — that person faces life without the possibility of parole.
“If there’s evidence that the [Poway] shooter targeted his victims because they were Jewish, that’s a hate crime in California. That’s all the prosecutors would need to show to make it a hate crime,” Sklansky said Sunday. “The shooter doesn’t need to have targeted them exclusively because they were Jewish.”