Federal law enforcement got it right when they announced they would prosecute Frazier Glenn Miller under the federal Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act (HCPA). Miller, the suspect who was arrested in connection with the April 13 shootings at a Jewish community center and a Jewish assisted-living facility in Overland Park, Kansas, is a self-proclaimed anti-Semite and white supremacist. It is likely, based on the facts as reported in the media, that he went to both facilities with the intent to kill Jews. The fact that the three murder victims were not Jewish does not make this crime any less heinous, nor does it eliminate the possibility of a hate crime prosecution.
And yet how many of us heard someone say, “And they weren’t even Jewish,” after news about the victims emerged?
When the Anti-Defamation League (ADL) drafted its first hate-crime law more than 30 years ago, the point was to recognize that hate crimes are different from other crimes and warrant tougher sentences. Furthermore, in cases like this one, where there can be little doubt that Miller targeted his victims because he perceived them to be Jewish, hate-crime laws can and should be applied, even if the victims are not members of the group targeted. Why should the penalty be greater when someone commits a hate crime? These crimes have an emotional and psychological impact that is distinct from many other types of crime. In committing these crimes, perpetrators are sending a message to an entire community that says, “You are not safe; you are not protected.” This, in turn, makes members of the targeted communities fearful, angry and suspicious of other groups — and of the power structure that is supposed to protect them — which can damage the fabric of our society and fragment communities.
It is also important to understand that the emphasis of the hate-crime laws is on the perpetrator’s perception of the victim’s status; the actual identity of the victim of a hate crime is wholly irrelevant. Take, for example, the tragedy of the Sikh man murdered in Arizona in the wake of the Sept. 11 attacks. The gunman wanted to “kill a Muslim” in retaliation for the attacks, and shot and killed Balbir Singh Sodhi. Sodhi was targeted at his workplace because he wore a beard and a turban in accordance with his Sikh faith. The gunman selected Sodhi because he perceived Sodhi to be Muslim, and he was convicted of first-degree murder with a hate-crime enhancement. Sodhi’s actual identity as a Sikh did not have any bearing on the case.
Hate-crime statutes don’t create new crimes; there still has to be an underlying crime. Hate-crime statutes simply allow prosecutors to seek greater penalties if they can show the crime was motivated by bias against an actual or perceived protected class. This has been the ADL’s approach, and we are proud that 45 states and the District of Columbia have now enacted hate-crime laws based on or similar to the ADL model.
Prosecuting bias-motivated crimes under the hate-crime laws sends a message of reassurance to the targeted community, and that message is especially important in the aftermath of a crime that has been covered so extensively in the media.
That may, in fact, be one of the reasons that federal authorities plan to use the HCPA. In homicide cases like this one — unlike nonlethal crimes such as gay-bashing, a racially motivated mugging or a cemetery desecration — adding a hate-crime enhancement to the prosecution may not functionally increase the punishment meted out. But classifying the crime as a hate crime and prosecuting it under hate-crime laws underscores the message that bias-motivated violence is unacceptable. That message is critical, which is why the ADL routinely reaches out to government officials to seek statements denouncing such crimes. We are gratified by the reactions of our political leaders this month, including President Barack Obama and many other federal, state and local officials.
In Kansas, the suspect had a prior affiliation with white supremacist ideology. He allegedly asked people if they were Jewish at the scenes of the crimes, was reported to have yelled “Heil Hitler” upon his arrest, and clearly targeted two Jewish community institutions. The fact that the victims of this unspeakable and heinous act of violence did not turn out to be Jewish is irrelevant. He should be prosecuted under hate-crime laws because it’s the clearest way to send a message back to the criminal and to others similarly inclined that says, “We stand with the community you targeted; it is you we will not tolerate.”