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What qualifies as a hate crime and why are they so difficult to prove?

People participate in a protest demanding an end to anti-Asian violence on April 4 in New York City. (Spencer Platt/Getty Images)

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On March 31, a White man allegedly threw rocks at an Asian American woman’s car in Orange County, Calif. He was charged with a hate crime.

A few days later, in Riverside, Calif., Ke Chieh Meng was stabbed to death while walking her dog. The woman accused of stabbing her was not charged with a hate crime, but the victim’s family wonders whether she was targeted because of her race.

What makes one incident a hate crime and the other not? It’s a perplexing question for victims’ families and allies.

In the first case, the suspect told authorities that “Koreans in the area were trying to control him,” according to the Orange County District Attorney’s Office. In the second, the suspect didn’t mention the victim’s race to police or the victim when she was said to have attacked her, according to authorities. “The attack could have happened to anyone,” Riverside police officer Ryan Railsback told Patch.com.

Hate-crime laws, in their modern form, began with the 1990 passage of the Hate Crime Statistics Act, which required the Justice Department to keep track of crimes motivated by hatred based on race, religion, ethnicity or sexual orientation. Hate-crime laws would evolve over the years, with some state statutes varying in both what constitutes a hate crime and which groups are protected.

To help untangle the complex issue, About US spoke with Frank S. Pezzella, an associate professor at John Jay College of Criminal Justice’s Department of Criminal Justice, who has written and co-written books on hate crimes, offending and victimization reporting.

This interview has been edited for clarity and length.

About US: What was the original intent behind creating a hate-crime law?

So for the most part, hate-crime laws were enacted because there was an identification that these kinds of crimes were somewhat more injurious to somewhat more unique. And that’s the reason 46 states and, in the new Georgia statute that was enacted in June of 2020, you find enhanced penalties for hate-crime offenses.

What are some ways that hate crimes affect communities differently compared to other crimes?

Hate crimes, unlike ordinary crimes, are an offense against people because of what they are; ordinary crimes are offenses against people for who they are. For instance, a person is a victim of an aggravated assault and there’s a fight because of something about the personal attributes of that person. In a hate crime, it’s done because that person is Black, because that person is Jewish, because that person is Latinx.

Number two, whereas an ordinary offense is basically an attack on an individual and of the primary victims, hate crimes affect not just the primary victim, but the members of the victim’s immediate community as well as society at large. So say someone puts a swastika on a synagogue. It affects everybody who goes to that synagogue and everybody who doesn’t go to that synagogue. You could arguably say it’s impacting the quality of life of all Jewish people.

Hate crimes also have more injurious effects not just physically, but emotionally and psychologically. When you’ve been a victim of a hate crime, you don’t walk the same way or to the same place that you walked before. Your sense of safety of the world is differentially impacted as compared to an ordinary crime. You have a heightened sense of fear, many of the victims that we study really had an array of emotional and psychological problems. It includes everything from hypertension and they just tended to withdraw from society. That’s unlike the victims of ordinary crime. So I just wanted to say that about the not just the physical, they tend to be physically more severe.

How do federal hate-crime laws differ from state hate-crime statutes?

The federal hate-crime statute protects from actual or perceived race, color, religion, national origin or sexual orientation to include gender, gender identity and disability status. So it includes almost all groups.

Many states vary by the number of groups they protect. Only 31 states protect against sexual orientation bias. Only 18 states protect against gender identity bias. Some states protect against police officers.

I think hate-crime offenses are probably one of the most underreported offenses that there are because of this variation in definitions of what constitutes a crime. We still don’t know the extent of the prevalence and the scope of this kind of offending because there’s so much variation in definitions, of course, the states have variation in evidentiary criteria.

So how do federal hate-crime laws differ from those that states have and is the person usually charged under both?

No, generally not, but oftentimes when a state doesn’t charge someone, the federal government will come in and do their charge. Rarely are you charged under both. It’s the one or the other. Obviously, the question of double jeopardy comes into play.

In the Atlanta attacks, the Cherokee County Sheriff’s office spokesman said that the perpetrator told them that he didn’t target his victims because of their race. What are some ways that police determine whether there was racial animus?

It’s very, very difficult to prosecute a hate crime and to prove racial animus in the face of somebody saying it wasn’t about race. You don’t know whether the federal government is going to step in because you could argue that because he chose three Asian American massage parlors and he chose women, race is implicated there and gender is implicated there.

Ultimately, if you’re a prosecutor, you have this elevated burden of proving that this was about bias against a particular race. Why make it difficult for yourself when you already can arrest a person for murder? And to what extent are you going to be able to enhance the penalty? Most prosecutors want to win, that’s the way you move up, that’s how you get promoted, by having a very good conviction record. If I’m a prosecutor, I’m probably electing to prosecute it as a non-biased crime because I know this is a win.

We’ve been talking about the Georgia murders, but there also have been incidents where Asian Americans have been shoved to the ground. Are those hate crimes?

Words are often very indicative of the bias motivation of a perpetrator, like when you hear words like “coronavirus” or telling them to go back to their country. Words without actions don’t quite do it, the words in conjunction with actions definitely, definitely do. But these hate incidents are precursors to hate crimes.

Are hate crimes underreported and why?

Oh, very underreported. I wrote a paper entitled “The Dark Figure of Hate Crime Underreporting.”

The FBI every year puts out an annual hate-crime report. And generally, what you see is roughly probably 7,500 to 8,000 offenses a year dating back to about 1994 up to 2019 on average.

About 15 years ago the National Crime Victimization Survey began to interview victims. Now the victimization survey, otherwise known as the NCVS, is a survey of victims by the Bureau of Justice Statistics. They speak to 60,000 homes in America every six months to adults in the household 12 years and older. Victims report roughly 250,000 hate-crime offenses a year. So how do you reconcile the difference? Now, I want to be clear. Police are reporting incidents while the NCVS is reporting victimization. In many ways, this is oranges to apples. But those 250,000 people were asked if they reported to the police; 100,000 said they did.

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So there is a major discrepancy between the NCVS reports of 100,000 and 250,000 victimizations and the 8,000 reported by police. And so, we ask, “Why don’t they report?” Well, the NCVS asks questions like if you reported the crime and if you didn’t report, why didn’t you report? And we looked at the national survey over five years of 250,000 victimizations, 29 percent of them was because: 1) Police inefficient, 2) police ineffective or 3) police bias. To us, that represented a substantial amount of things the police could do to improve to improve reporting practices.

What are some ways that police can improve relationships with communities targeted in hate crimes?

There are five ways. Police need to have a written hate-crime policy and that policy needs to be very, very apparent and obvious as soon as you walk into the police station. And not only that, their policy needs to be implemented top down, not just from the police commanders, but all the way down to the line officer.

Police also need to include community engagement. Make a good-faith effort to let them know that we are here. We want to hear from you.

The other recommendation is to improve hate-crime data collection and mandatory reporting. Of the 18,000 police departments in the U.S., only maybe 75 percent participate in the uniform crime report. Interestingly enough, of those that do participate, roughly 80 percent reported zero hate crimes every year. Now, either we don’t have a hate-crime problem or we have a systemic reporting problem.

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We also need to engage state and local participation. State and local politicians are key because they provide funding.

The next recommendation is to enhance the role of the prosecutor. In some of the cities with what we call “best practices,” the role of the prosecutor is included in what they may have as a hate-crime task force. The prosecutor is in the loop with the community, with the police department to prosecute these types of crimes as exactly what they are, a bias-motivated crime that’s subject to enhanced penalties.

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