Federal Hate Crime Prosecutions Are Critical, But Are They Enough?

By Melissa Garlick | National Civil Rights Counsel

May 22, 2018

Harvard Law & Policy Review

Three militia members from southwest Kansas were recently convicted on federal civil rights charges and conspiring to use a weapon of mass destruction for targeting Somali Muslim immigrants for a plan of mass murder in 2016.  On a recording made available to the jury, one of the defendants said: “The only good Muslim is a dead Muslim.” The convictions sent an important message of reassurance to a small community left rattled and fearful.  The unique impact of this crime – like all bias-motivated crimes demanded that our criminal justice system treat these crimes very seriously, with serious consequences.

But while the jury in Kansas got it right, we are living at a time when reported anti-Semitic incidents are increasing, extremists and hate groups are emboldened, and reported hate crimes, especially against Jews and Muslim, are on the rise.  In this environment, in the aftermath of the violence in Charlottesville last year, the question is: while U. S. Department of Justice hate crime investigations and prosecutions are critical – are they enough to prevent and respond to the broad and devastating societal impact hate crimes have?

Maybe not.

Consider this: The Anti-Defamation League saw 57 percent increase in reported anti-Semitic incidents around the country– the largest single-year increase on record and the second highest number reported since ADL started tracking such data in 1979.  And according to the most recent FBI hate crime data available, from 2016, one hate crime is committed in this country every 90 minutes.  Consider also that that data documented a nearly 5 percent increase in hate crimes from 2015 to 2016.  Yet more than 90 cities with 100,000 or more residents either did not provide hate crime data to the FBI or affirmatively reported that there were zero hate crimes in their jurisdiction.

That is simply not credible – and clearly an obstacle to addressing hate crimes effectively.

At the same time, ADL has seen a resurgence of white supremacist activity in the United States. Extremists and anti-Semites are using technology in new ways to spread their hatred, both online and off.  The threat they pose is serious and widespread.

While the Justice Department’s successful prosecution in Kansas was welcome, the law is a blunt instrument in confronting hate violence.  And our government absolutely cannot adequately and genuinely address the problem while also continuing to implement and defend policies that target communities of color, further marginalize minorities, and undermine trust between communities and law enforcement.

Addressing this disturbing climate and identifying, reporting, and responding to all forms of hate violence demands that we not cast aspersions on vulnerable and marginalized communities.  Instead, our federal government must take a leading role in speaking out against hate, implementing policies that protect the civil and human rights of everyone in the United States, and fostering trust between law enforcement and communities to encourage reporting, documentation, and investigation of hate crime.  After the violence in Charlottesville over the summer, more than 80 civil rights organizations, including ADL, outlined concrete recommendations to the Department of Justice in order to effectively prevent and respond to hate crimes. These included a federal inter-agency Task Force on fighting hate, improving federal hate crime data collection by creating incentives for hate crime reporting, and improving training and outreach for law enforcement officials on hate crimes.  But above all, in order to prevent and respond to hate crimes, the federal government must restore funding cuts to key civil rights office budget and it must rescind policies that undermine trust and relationships with communities of color.  And, as the League pointed out in our May, 2018 testimony before the United States Commission on Civil Rights, the federal government must use its bully pulpit and the full force of federal resources to make clear that bias-motivated violence, all forms of bigotry, and discrimination is unacceptable in our society.

The rule of law is currently being tested in this country. Dark forces of bigotry and extremism are surfacing much too frequently.  States, cities, and communities across this country have spoken against discrimination and injustice and undertaken extraordinary efforts to build shared understanding, including the Mayors’ Compact to Combat Hate, an initiative involving more than 300 mayors across the country working with the public and private sectors to reject hate.

“Sanctuary city” policies protect and welcome immigrants, and many cities have also adopted a variety of policies to welcome and protect their LGBTQ residents.

The threats today are real, and more serious than they have been in many years. And, though our founding principles, constitutional guarantees, and historic national commitment to equality, justice and fair treatment are strong, they are not self-executing. Ultimately, effective prevention and response to a rise in incivility and hate violence requires a multi-faceted comprehensive approach by all levels of society.