Roy L. Austin Jr. is a former deputy assistant attorney general in the Civil Rights Division of the Justice Department. Kristen Clarke, a former prosecutor in the Civil Rights Division, is president of the Lawyers’ Committee for Civil Rights Under Law.
We already have powerful tools for prosecuting hate crimes — criminal offenses motivated by bias toward an individual’s race, color, religion, national origin, gender, sexual orientation, gender identity or disability. The first federal hate crime law was passed in 1871 to address the Reconstruction-era racial terrorism experienced by African Americans, including lynchings. These laws have evolved over time. In 2009, President Barack Obama signed the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, which expanded existing laws to protect a broader range of threatened communities.
On the other hand, domestic terrorism (unlike international terrorism) is not a chargeable offense. It never has been, nor does it need to be. Such a law is unnecessary and would be harmful to communities of color.
The USA Patriot Act defines “domestic terrorism” as an act that occurs primarily within the United States that is dangerous to human life and is intended to intimidate or coerce a civilian population, influence the policy of a government by intimidation or coercion, or affect the conduct of a government by mass destruction, assassination or kidnapping. That term is used for purposes of investigation only.
Unfortunately, however, in an inherently biased criminal-justice system, the concept of domestic terrorism has long been used in discriminatory and harmful manners. In the post-9/11 world, the counterterrorism framework targeted and discriminated against Arab Americans, American Muslims and South Asian Americans. This securitized frame of engagement with specific communities sent a false message that Arab, Muslim and South Asian Americans somehow warranted suspicion. An increase in hate crimes against members of these communities soon followed.
Historically, federal law enforcement agencies have used this kind of framing to target not only those who commit acts of violence but also those who advocate social and racial justice — including the FBI’s covert operations against the Rev. Martin Luther King Jr. in the 1960s and, five decades later, its creation of the term “black identity extremists” to target those protesting excessive force used by police.
Law enforcement agencies and prosecutors already have the tools they need to investigate and prosecute acts of mass violence. There are 57 terrorism-related charges in federal law — 51 of which would apply to acts of both international and domestic terrorism, including hate crimes. What our government lacks is the will to consistently use these charges when a threat involves white supremacists. What our government also has done is disproportionately allocate its resources in this area to acts of terrorism, though hate crimes have led to far more deaths of Americans and on U.S. soil than terrorism over the past decade.
Furthermore, should history repeat itself, a stand-alone charge of domestic terrorism would do more harm than good for communities of color. First, it would suggest that white supremacists of today are somehow different from the white supremacists of 1871, diminish the importance of existing hate crime laws and ignore why they were enacted in the first place. Second, in an inherently biased system, it would heighten the possibility that law enforcement agencies would have yet another tool for targeting the very communities that are most vulnerable to acts of violence.
The national conversation we should be having is how to respond adequately to an increase in reported hate crimes — including those perpetrated by white supremacists. We can do that without a new charge that has the potential to harm the communities we seek to protect. Indeed, we can best do that by actually using the tools that we currently have and elevating our response to hate crime on the local, state and federal levels.