Why Hate Crimes Can Be Tricky to Charge

This Tuesday, a 21-year-old man killed eight people in Georgia, six of them Asian-American women. After Robert Aaron Long was apprehended, he claimed his actions were motivated by sex addiction rather than race. Law enforcement appeared to take him at his word, with the Cherokee County police captain and spokesman for the case county chalking up the murder spree to “a bad day.”

This comment promptly drew widespread criticism, and the captain has been removed from the case. “This [captain] really offended a lot of Asian-Americans, and a lot of Americans in general,” Stanley Mark, Senior Staff Attorney for the Asian American Legal Defense and Education Fund, told GQ. Given that the shooter ignored nearby strip clubs in favor of massage parlors, and reports in local Korean-language newspapers that he shouted, “I’m going to kill all the Asians” during the attack, the official statement seemed premature at best, and willfully ignorant at worst. In fact, according to legal experts, not only was racism likely a factor in the shootings, but Long could be charged with hate crimes in addition to murder. So why hasn’t that happened yet?

From a legal perspective, hate crimes—a criminal act perpetrated on the basis of someone’s race, religion, gender, nationality, or sexual orientation—can be tricky. Though they’ve been a federal crime since 1968, not every state has hate crime laws, and different states recognize different forms of bias. Notably, states in which two of the most infamous hate crimes in US history occurred still don’t have hate crime laws on the books: Wyoming, where Matthew Shepherd was murdered, and South Carolina, where neo-Nazi Dylann Roof killed 9 people at Mother Emanuel AME church.

Georgia itself didn’t recognize hate crimes until last year, when legislation drew bipartisan support after the murders of Ahmaud Arbery and Rayshard Brooks. But State Representative Karen Bennett, who sponsored the legislation last year, notes that Georgia’s hate crime law “was a soft bill, easy to read and to understand.” This week’s attack is the most high-profile hate crime in Georgia since the bill passed. “It’ll be a test case, won’t it?” said Bennett.

Certain acts, like burning a cross in someone’s yard or desecrating a church, are automatically hate crimes. In cases like the attack in Georgia, however, the state must first prove a person committed a crime, then additionally show that the crime was motivated by bias in order to add further jail time to their sentence. Penalty enhancements can be difficult to get because they require the prosecution to demonstrate a specific motive—which makes the report that Long shouted about killing Asians extra important. But law enforcement can still investigate a person’s background for signs of bias: their Facebook activity, known affiliations, etc.

“It’s very much in the prosecutor’s discretion as to whether he or she seeks an advanced penalty for a hate crime,” said Scott McCoy, Interim Deputy Legal Director of the Southern Poverty Law Center. “If the prosecutor thinks there’s a possibility that he or she is going to seek the sentencing enhancement later on, he or she is going to want the investigators to be looking for evidence that supports the notion that the victim is chosen because of race or sex.”

This is why the early narrative coming out of Georgia is so troubling. “At the very least at the investigative level, this should be classified [as a hate crime],” said Mark. While the legal question of whether the shooter committed a hate crime is technically secondary in terms of the legal process, the investigation that lays the groundwork for such a conviction is happening right now. “So the prosecutors have to be signalling to law enforcement, ‘Look, if I’m going to successfully prosecute this as a hate crime, I need you guys to do more than ask the defendant whether or not he did it because of race,’” McCoy said.

Can we count on that happening in Georgia? “I believe there is implicit bias in our officers,” says Mark. “I’m not saying that’s the controlling factor, but it is true.” Indeed, the police captain who made the “bad day” comment was later found to have promoted shirts with racist comments blaming China for the pandemic. The freshness of Georgia’s hate crime laws could be a factor too. “Just because the law is new doesn’t mean they won’t get it right,” says McCoy, “but there are presumptions that come along with hate crimes that might not be in law enforcement’s minds because they haven’t had hate crime statutes in the past.”

Rep. Bennett is confident that Georgia law enforcement will ultimately get it right. “I don’t think there will be much of a problem categorizing this as a hate crime,” she said.

Regardless, it’s important to remember why hate crimes are important. “Hate crimes by their nature are meant to send a message to the targeted community,” says McCoy. “Naming something as a hate crime is an important way to counter that. It’s important that society sees and knows that we’re not going to leave crimes that spread fear unanswered.” Prosecuting hate crimes also increases confidence in law enforcement, McCoy argues, by signaling to the general public that police are taking things seriously.

Mark adds that hate crime charges also allow the government to see where hate-based bias is flourishing and divert resources to the communities that need them. “It gets people to realize that these are not just isolated problems,” says Mark. “If the numbers are there, you have to acknowledge it, and the numbers themselves are hopefully used for community based solutions in education, health services, and bilingual, culturally competent services.”

In the past year alone, more than 3,800 Asian-Americans have been the target of hate-based attacks. In New York alone, Mark notes that there’s been a ninefold increase in hate crimes against Asian-Americans over the past year. Underreporting is also a serious issue. “People don’t want to report biased incidents because they don’t think anything is going to be done,” he says.

“The numbers also force people to acknowledge that this is a recurring problem, not something that’s just happening now,” says Mark. “These aren’t isolated incidents. They occur in the context of a historical anti-Asian legacy that’s in our laws themselves.”

As the case continues to develop, some experts have noted that the shooter could be convicted for a hate crime on the basis of gender rather than race. While local law enforcement has yet to fully acknowledge the race-based element of the crime, the shooter’s claim of sex addiction and that he was somehow “removing temptation,” certainly suggests underlying misogyny. To Mark, condemning hate is more important than exactly how it’s classified. “From a political perspective, it’s both,” says Mark. “Don’t get diverted by the legalese.”