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Why Americans can’t agree on which crimes are hate crimes

Kenneth James Gleason is escorted to a waiting police car in Baton Rouge, on Tuesday. He is facing two counts of first-degree murder and other charges for shootings that resulted in the death of two black men.(Gerald Herbert/AP)
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Little, at this point, is known. But as is so often the case, there is an image that says a lot.

Witness a man, Kenneth James Gleason, young and white with what looks like bed head and a three-day shadow. Gleason was arrested Tuesday in Baton Rouge and charged with two counts of first-degree murder and other crimes. Gleason’s pallor, his clothing, his hunched posture and squinted eyes — a look on route to either a scowl or a smirk — bring to mind someone’s sullen, basement-dwelling son. News reports indicate Gleason’s neighbors sometimes spotted him sleeping outside his parent’s home in his car.

Gleason is accused of killing two black people. At the moment Baton Rouge police took him away for those alleged murders, Gleason was flanked by two black officers. Each wears a facial expression best described as professional neutrality with hints of disgust (left) and determination (right). They likely brought with them knowledge of the suspect’s alleged crimes and the customary way that race — his and theirs — functions in the United States.

Gleason, as news stories have told us, is a college dropout, an Eagle Scout whose former roommates, neighbors and family — race unidentified, meaning that they are likely white and the reporters regarded their read of Gleason as neutral, rather than also influenced by their race — generally say Gleason is no racist. They have no tales of a Dylann Roof-like manifesto describing a plan to ignite race warfare. Gleason, his friends and relatives say, is fond of reading philosophy and, police have added, in possession of at least one Hitler speech.

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The city’s interim police chief has been vocal about the potential social damage that might have been done if an arrest were not made, but at the same time, circumspect about using the term “hate crime.” Baton Rouge is where, two years ago, officers shot and killed Alton Sterling, a black man, under questionable circumstances and ultimately faced no criminal charges. After Sterling’s death, three countries issued warnings to citizens traveling in the United States and a United Nations panel issued a statement saying the country has “a high level of structural and institutional racism.” The pronouncement also said the nation’s “existing measures to address racist crimes motivated by prejudice are insufficient.” By the month’s end, a black man who may have been mentally ill shot six law enforcement officers and killed three in what he deemed a revenge attack directed at police. People opposed to police accountability measures took the incident as evidence that activists calling for police reforms and, when necessary, prosecutions, are terrorists who hate cops.

Each year law enforcement agencies report about 5,500 hate crimes to the FBI. Baton Rouge, home to about 228,000 people, ranked among the 88 percent of law enforcement agencies that reported zero hate crimes. Hate crimes, according to the FBI’s 2015 report, were a problem in fewer than 2,000 jurisdictions patrolled by the 14,997 agencies reporting hate crime data.

That’s the official tally, one that the FBI makes clear in voluminous qualifiers and footnotes should not be regarded as a complete depiction of hate crime in the United States. But each year, when the FBI releases its hate crimes data, that’s precisely the way that it is described and viewed, said Heidi Beirich, who leads the Southern Poverty Law Center’s Intelligence Project, which tracks hate crime and hate groups.

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“It’s not great to have an average of 5,500 hate crimes. And we do know that there has been a significant increase in the last few years,” Beirich said, “but by and large, the takeaway for too many people [from the FBI report] is,’Well, things aren’t that bad. This is a country of, what, 323 million people?’ In reality what we have is a pretty massive undercount.”

In fact, another division of the Department of Justice asks Americans directly — via a scientifically sound survey — about hate crimes of which they have been the victim. Each year, the results are quite different than the landscape of crime delineated in the FBI’s report. Between 2004 and 2015, people living in the United States reported experiencing an average of 250,000 hate crimes each year, according to a report released by the U.S. Justice Department’s Office of Justice Statistics in June. In the last five years of that period, nearly half of the hate crimes — 48 percent — self-reported by victims were “motivated by racial bias” and 90 percent involved violence, according to the DOJ report. During that time, racial bias outranked self-reports of hate crimes motivated by ethnicity, gender, sexual orientation, religion and disability.

The majority of law enforcement agencies — see that 88 percent figure above — report no hate crimes at all. This includes several states in the Deep South and communities with known surges in hate group activity or incidents studded with slurs, known hate symbols and the calling cards of the KKK. The problem is manifold, Beirich said.

Many hate crimes are not reported to police because of victim shame, fear or concerns about the way that sometimes sensitive matters involved in the crime will be managed. Those crimes that are reported are investigated by agencies with different levels of knowledge about the ways that bias can manifest and motivate crime. There are police departments that arrest trans people for possessing condoms on the grounds that this is evidence of illegal sex work. There are agencies that fail to explore the potential hate crime element when investigating a rape in which an attacker used racial slurs or harmed women who frequent a certain religious institutions or ethnic grocery store. Understanding the contours of hate crimes and developing the insight to understand experiences that may be far different than the investigator or prosecutor’s own can be difficult, Beirich said.

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Consider the way that the family of a biracial (black and white) New Hampshire boy allegedly taunted with racial epithets then strung up by white teens say that the local sheriff first described it as an “accident,” outside of law enforcement’s purview. That is what the teens said, the local police chief told the family. When the boy’s mother, who is white, posted an image of the cuts and bruises on her 8-year-old son’s neck and described the medical care needed, this generated news.

In Baton Rouge, Gleason is in position to benefit from the caution — and some might say skittishness — that exists around hate crime classifications and the enhanced sentences a conviction can bring. The city’s white prosecutor has said they are taking care before referring to Gleason’s alleged crime spree as a “hate crime.” Prosecutors will seek the death penalty as these were, “cold, calculated,” crimes, the parish prosecutor said. In reference to a hate crime designation, he said, “we don’t need to prove motive.” But the prosecutor’s reasoning hints at a failure to grasp the public interest in delineating the physical and social threats posed by Gleason’s alleged crimes in a criminal justice system replete with well-documented racial inequities.

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