US Attorneys Prosecute Small Slice Of Hate Crime Probes

By Justin Wise | July 11, 2021, 8:02 PM EDT

U.S. attorneys led federal investigations of over 1,800 hate crime suspects between October 2004 and September 2019; however, they ultimately declined to prosecute the vast majority of them, according to a new report from the U.S. Department of Justice's Bureau of Justice Statistics.

Published on Thursday, the report covers U.S. attorneys' investigations and prosecutions against suspects accused of violating five federal hate crime statutes over a 15-year window. Of the 1,864 suspects, federal officials declined to prosecute 82%, showing the evidentiary challenges attorneys can sometimes face in proving bias motives, experts told Law360. One percent of cases were resolved by U.S. magistrates and 17% were prosecuted.

The new federal data arrives as Attorney General Merrick Garland moves to increase the federal resources directed towards combating hate crimes, in response to legislation Congress passed earlier this year amid a rise in attacks against Asian Americans during the COVID-19 pandemic. The bill also includes provisions aimed at improving reporting at the state and local level, which has remained a long-standing problem.

Garland in May laid out plans to, among other things, expedite the review of federal hate crimes and deepen partnerships between the more than 90 U.S. attorneys' offices and state, local and tribal authorities. Nearly all states and Washington, D.C., also have their own hate crime statutes enforced by state and local officials.

The initiatives, as well as improved data collection, suggest that the DOJ's strategies around preventing and investigating hate crimes could become more effective in the coming years, said Michael Lieberman, senior policy counsel at the Southern Poverty Law Center.

"Improved data collection means there's a much better chance you're going to be able to identify cases ripe for federal jurisdiction and federal prosecution, but also to work in consultation with the state and local officials that are prosecuting cases," Lieberman said, noting state and local offices take on most of these investigations. 

The BJS federal investigations tally is a fraction of the hate crime incidents reported by law enforcement agencies throughout the U.S. and annually logged by the FBI. From 2017 to 2019, the agency's Uniform Crime Reporting program tallied more than 7,000 bias-motivated criminal incidents recorded by law enforcement each year. 

Experts say those statistics don't fully reflect the scope of the issue, however, as many victims elect not to report incidents and the majority of state and local agencies do not acknowledge hate crimes in reporting to the FBI.

Roughly 90% of the U.S. attorney investigations stemmed from FBI referrals, according to the BJS. Violation of the Hate Crime Preventions Act — which covers violence perpetrated on the basis of factors including actual or perceived race, ethnicity, religion and sexual orientation — represented a plurality of the probes. The report did not include granular breakdowns on victims' identities, such as their religion or race.

Insufficient evidence was the most common reason given for declining prosecution. About a quarter of cases were no longer pursued because they were either referred to other authorities or federal officials lacked jurisdiction to file charges.

But while the declination rate was high, the report also showed that prosecutors' conviction rate has improved over time. U.S. attorneys secured a conviction in 94% of cases they prosecuted between 2015 and 2019, compared to 83% from 2005-2009. The convictions include that of Dylann Roof, who was convicted of federal hate crimes in 2016 for fatally shooting nine Black parishioners in a South Carolina church.

State and local officials take up hate crimes investigations in most cases because they are in a better position, Lieberman said, due to both resources and jurisdictional issues.

"The people that work on these issues do not think that the federal government is going to be the lead prosecutor in most of these cases," he said. "Forty-six states and the District of Columbia have these laws, and it's more likely that a local police department is better able to do an investigation and a prosecution where appropriate than the FBI."

There is still much more that the DOJ can do, said Michael German, a retired FBI agent and fellow at New York University's Brennan Center for Justice. German cited a past BJS survey report that found there were an average of 230,000 violent hate crime victimizations each year between 2004 and 2015.

Given the thousands of incidents that happen every year, as well as the five federal statutes covering hate crimes, added German, it's "remarkable" the DOJ only successfully prosecutes a small number each year.

"If the Justice Department made hate crimes a priority and stopped deferring to state and local police and instead devoted resources to federal investigations, they could find substantially more cases worthy of prosecution," he said.

The recent DOJ efforts follow a pronounced uptick in attacks against Asian Americans, triggered by what some say was the racist rhetoric about COVID-19's origins from former President Donald Trump and other politicians. The Biden administration has also identified white supremacy as a top national security threat, and in June issued a strategy for confronting domestic terrorism, including an initiative to combat extremist groups' recruitment efforts.

Law enforcement policies can still fall short in getting at the root of the problem, experts note. A report released in June by Stanford Law School urged local communities to experiment with alternative methods to confront hate crimes, as a response to the persisting gaps in the traditional legal model.

The report called for allocating greater resources to social service programs and noncarceral solutions, noting they can have greater impacts on targeted communities and criminal offenders.

"You cannot arrest and prosecute your way out of this national problem," Lieberman said. "The number of cases brought per year is way less important than what the Justice Department is doing to prevent these crimes in the first place."

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--Editing by Katherine Rautenberg.

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