PICK THE LOWEST HANGING FRUIT: HATE CRIME LAW AND THE ACKNOWLEDGMENT OF RACIAL VIOLENCE.

• Author: Bell, Jeannine

INTRODUCTION 692 I. CAPTURING THE PROBLEM OF HATE CRIME 694 A. Hate Crimes and the Legal Attack on Bias 694 1. From Federal Civil Rights Remedies to the Hate Cime Statistics Act 696 2. The National Criminalization Survey (NCVS) 698 a. The Failures of Both Governmental Databases 701 B. Non-governmental Organizations (NGO) Hate Crime Data 703 1. Victim's Advocacy Groups 703 a. The Anti-Defamation League 704 b. Stop AAPI Hate 705 2. Non-identity Based Research and Advocacy Organizations 707 a. Center for the Study of Hate and Extremism 707 b. ProPublica 708 3. Making Sense of Data Failure in Official Statistics 711 II. HATE CRIMES AS ANTIDEMOCRATIC VIOLATIONS OF THE FAIR HOUSING ACT 713 A. The Complex Roots of One Type of Hate Crime 713 B. Anti-Integrationist Violence in the Trump and Post-Trump Era 717 III. THE AHMAUD ARBERY MURDER AS AN ACT OF ANTIINTEGRATIONIST VIOLENCE 717 IV. THE AHMAUD ARBERY FEDERAL HATE CRIMES TRIAL AS THE NEW WAY FORWARD 722 A. A Mother Steps in and the Hate Crime Trials Begin 723 B. The Quest to Prove Intentional Selection on the Basis of Race 724 CONCLUSION 725 INTRODUCTION

As a society, we roundly criticize racism. (1) Hate crime laws--criminalizing certain actions motivated by bias on the basis of race, religion, sexual orientation, and ethnicity--are a clear recognition of this fact. One popular (mis)understanding of hate crime laws is that they are the criminalization of hatred expressed by those who have particular biases.

For instance, some academics have suggested that hate crime laws were created to punish bigots for their biases. (2) Those in favor of the "punishing bigots for their bias" characterization of hate crime legislation have fundamentally misunderstood the way hate crime law works: hate crime laws punish acts of intentional selection, not bias generally. (3) In addition to being factually inaccurate, the "punishing-bigots-for-their-biases" characterization greatly overstates the reach of hate crime legislation. Rather than being broad enough to respond to all attacks stemming from bigotry, hate crime law actually has a tiny footprint. Despite the widespread promulgation of hate crime law in most states, (4) the criminal legal system is largely failing most victims of bias-motivated violence. (5)

Perhaps deliberately, the very existence of hate crime law holds out a false promise. In actuality, for the vast majority of those targeted by hate crimes, there will be no remedy for the crimes they experience. (6) No one understands this sad truth better than a victim who has been targeted but does not have a remedy which recognizes the violence they experienced. (7)

In some cases, the gap between the promise of a remedy created by the abundance of hate crime law and its ability to address what victims experience is a failure of the way in which the law is structured. For instance, in March 2021, a Nigerian family living in Woodbridge, Virginia awakened to find their garage door defaced with a racial slur. (8) They dutifully reported the crime to the police. (9) Unfortunately, reporting the crime provided no legal relief, as Virginia does not recognize vandalism under the state's hate crime penalty enhancement law. (10) Thus, even though the incident would be noted as a hate crime by police and reported in the official statistics for Virginia, it could not be prosecuted as a hate crime." Though this case is notable for Virginia law's failure to address bias-motivated violence, the inability of legal remedies to offer redress to victims of hate crimes is not unusual. (12) This article addresses the many ways in which the law, police and prosecutors often fail to provide any tangible remedy to victims of bias-motivated crime.

These issues will be addressed in the following manner: Part I explores the current state of hate crime and hate crime law. Part II introduces one common (but largely overlooked) form of hate crime--racially based antiintegrationist violence--violence directed specifically at racial and ethnic minority newcomers to predominantly white neighborhoods. Part III applies the frame of hate crimes as anti-integrationist violence to the murder of Ahmaud Arbery in Brunswick, Georgia, in 2020. (13) Part IV concludes with a discussion of the Department of Justice's (DOJ) exemplary handling of the hate crime charges brought against Arbery's murderers, which serves as a potential model for addressing hate crimes going forward.

1. CAPTURING THE PROBLEM OF HATE CRIME

   1. HATE CRIMES AND THE LEGAL ATTACK ON BIAS

      The United States has long had identity-focused criminal acts. (14) In response to these acts and activist demands to address those targeted by biasmotivated violence, the government responded by creating new remedies. (15) In the case of hate crimes, these new remedies arose out of the fact that for a variety of reasons, the general criminal law often fails in hate crime cases. (16) Though hate crime laws sometimes have difficulties addressing biasmotivated violence, as the incident described above in Woodbridge, Virginia demonstrates, hate crime law has at least one advantage over the ordinary criminal law--it signals that the incident is bias-motivated. (17)

      In some circumstances, the failure of hate crime law to respond effectively to hate crime victims is complicated by the interaction between the reality of most hate crimes and the structure of the criminal law. The typical hate crime involves being called a racial slur while being beaten. The criminal law classifies crimes by offense level with the most serious crimes having the most serious penalties and so-called low-level crimes not having serious penalties. Many hate crimes have tremendous psychological impact on their victims, but they often fall into the category of simple assaults. (18) Having a low offense level impacts more than just the punishment. Crimes with low offense levels do not provide sufficient incentive to either police or prosecutors to investigate and prosecute.

      There are also normative issues with using the criminal law. The idea of prosecuting hate crimes using the general criminal law is sometimes rejected by victims and victims' advocacy organizations, who may see hate crime prosecutions as the only way of acknowledging the additional harm done to the victim during the bias-motivated attack. (19) Hate crimes are especially damaging to victims, and a separate category of crimes outside of the normal criminal law is a nod to this notion, (20) recognizing "[i]t is not enough simply to punish an offender, or even to punish him in some general sense for what he has done. Rather, we must punish him in a way that rejects the intolerable messages sent by his conduct." (21) What Professor Taslitz noted is one of the most significant justifications for hate crime law--that in addition to violating the criminal law the hate crime offender has engaged in behavior that violates American ideals of equality, and this is something that must be communicated to the offender. (22) The hate crime charge does that.

      The creation of hate crime as a separate category solves all the problems that I have described above. The attention-grabbing term "hate crime" has the capacity to capture the attention of prosecutors and police officers by pulling them into the victim's experience, even for otherwise minor offenses.

      1. From Federal Civil Rights Remedies to the Hate Crime Statistics Act

         This previous section focused on the advantages of hate crime law over the ordinary criminal law in response to the frequently used argument that we already have laws to deal with this conduct. Though it is rarely raised by critics of hate crime, existing civil rights law has long been used to prosecute incidents that are now labeled as hate crimes. (23) That being said, for a series of complicated reasons that I will explain below, if the incident is a hate crime, hate crime law may be easier to use than civil rights law. Before the 2009 Matthew Shepard and James Byrd Hate Crimes Prevention Act (HCPA), on the federal level hate crimes needed to be prosecuted under federal civil rights law, which required a deprivation of federal civil rights. (24) The complex difficulty of connecting the use of federal rights with the situation in which hate crimes occur was obviated by the creation of hate crime law like the HCPA, which targets actions motivated by bias irrespective of the behavior in which the individual victimized is engaged. (25) By contrast, when hate crime law is used to address acts of bias-motived violence, rather than focusing on the victim's actions at the time that they were targeted, the focus of attention moves to the perpetrator. (26) Previously, in order to fit into a civil rights standard for identity-based attacks under the federal law, individuals had to be enjoying federal rights at the time of an attack. (27)

         Eliminating the requirement that the victim be enjoying a particular federal right when they are attacked was not easy to remedy. (28) In fact, the very first piece of legislation aimed at violent bigotry and using the term "hate crime" was not a criminal law at all. (29) It did not punish bigotry. The Hate Crime Statistics Act of 1990 (HCSA) required the U.S. Attorney General to collect statistical data on "hate crimes," which it described as "crimes that manifest evidence of prejudice based on race, religion, sexual orientation or ethnicity, including where appropriate the crimes of murder, non-negligent manslaughter; forcible rape; aggravated assault; simple assault; intimidation; arson; and destruction, damage or vandalism of property." (30)

         The HCSA required the U.S. Attorney General to collect statistical data on hate crime. The FBI quickly became the agency to which police departments around the country were asked to submit hate crime reports. (31) Though many agencies, as discussed in the next section, collect data on hate crime, the HCSA placed the responsibility for...