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Strategy is the key to prosecuting hate crimes

This article first appeared in the St. Louis Beacon, June 3, 2010 - When hate crimes laws first started making their way onto the books 30 to 40 years ago, they generated dire predictions of log-jammed legal dockets.

"There was this fear there would be an opening of the floodgates, and hundreds and hundreds of them would clog the system," remembered Karen Aroesty, regional director of the American Defamation League (ADL).

But the reality hardly matched the prophesy. "Very, very few are prosecuted," Aroesty said.

Every year, fewer than five such prosecutions take place in the ADL region, which includes Missouri, eastern Kansas and southern Illinois. Reasons for their rarity include limits on which crimes are affected by such laws and the difficulty of confirming motivation beyond a reasonable doubt. Name-calling alone isn't enough.

"It's context, context, context," said Rich Callahan, U.S. attorney for Missouri's Eastern District.


An ideal first case


Only a few months after Missouri's first hate crime law was enacted in August 1988, a Jefferson City incident gave Callahan, then Cole County's prosecuting attorney, a perfect test case. After leaving work, a white Missouri State Penitentiary prison guard stopped off for a beer at a restaurant, crossing paths with a young African-American man picking up a pizza, "What's a nigger doing with a nice car like this?" the guard was heard to say before bashing in the young man's vehicle with a baseball bat.

What would have been a misdemeanor property damage charge was increased to a class C felony because of the hate crimes enhancement law, called an "ethnic intimidation" statute at that time. The jury found the guard guilty. The elevated charge allowed the jury to consider a larger fine than the $1,000 that came with the misdemeanor.

"The jury went with the enhancement. Because it was felony then, they imposed a $2,000 fine," Callahan said.

The punishment was no small hit to the wallet, considering prison guards only made $14,000 a year at the time. Several criteria helped prosecutors nail the case: The guard was of a different race than the victim, and he used a racial epithet against him in a way that made the guard's motivation clear. Discovery and documentation of such factors during the immediate aftermath of a crime are critical to a successful prosecution. It's not always immediately apparent that an attack is a hate crime, so details are important.

"Hate crimes training, which was not existent 20 years ago, is much more significant now," Aroesty said. "If police officers write a report and say racial epithets were uttered, that's not going to do it. Police officers need to report that certain, specific words were said, and said in this particular context."

An even stronger case can be made if a perpetrator has a propensity for white supremacy or xenophobic websites, for example, in his or her browser history.

"Now you have police departments doing things they used not to do, getting search warrants and going to people's homes and looking on their computers to see whether what they're doing online is a reflection of their state of mind at the time they decided to do the crime," Aroesty said.

Enhancements don't always work or make sense

Missouri law has no such thing as "a hate crime," according Ed Postawko, chief warrant officer for St. Louis' circuit attorney's office. The state statute doesn't give any offense that particular name. It only allows prosecutors to bump a charge up to a higher level when hate is the motivation.

Components of Missouri's hate crimes law specify which charges can be enhanced and includes seven protected classes:

  • Race, color, religion, national origin, gender, disability and sexual orientation, which include criteria that also apply to transgender persons, are covered categories.
  • Crimes of assault, harassment, property damage, trespassing and rioting are misdemeanors that can be changed to felonies.
  • Some felonies such as carrying a concealed weapon can be increased from class D to class C, elevating the maximum four-year prison sentence to seven years.

There is a "lot of strategy involved" when considering whether to use hate crimes enhancements, according to Postawko. Often, the existing crime is already a greater offense than those covered under the statute.

"My experience is that most of the time, the underlying crime already has a more serious punishment than the enhancements," Postawko said.

Proving motivation can be difficult, a challenge that's especially tough outside of a major city. Prosecutors don't want to increase the charge, only to lose the case.

"With a rural jury, you're going to have less diversity and you're going to have more concern as a prosecutor about your ability to make the case," Aroesty said. "It's going to be a lot easier for the prosecutors to stick with the underlying crime. I think a lot of cases don't get prosecuted as hate crimes for that reason."

When local police aren't giving a case enough attention, the FBI will sometimes step in.

"Local law enforcement has the primary responsibility for investigating a hate crime," said special agent Tim Feeney of the St. Louis FBI office. "Usually the FBI will get involved if they ask for our assistance or if we have information the locals are not pursing something as we think they should."

In October 2009, the 1969 Federal Hate Crimes Law was expanded to include sexual orientation and gender identity. But just like the state statute, proving anti-gay or any other such motivation can be tricky. Even when a perpetrator uses an epithet during an attack, the incident can miss the mark for a hate crimes enhancement. If the primary motivation seems to stem from greed, lust, personal vendetta or some other impulse, no slur is enough to make it a hate crime, according to Feeney.

"A lot of times we investigate a matter and find out it may be a hate incident and not a hate crime," Feeney said.

Statutes, evidence of hate have other merits

If a prosecutor can show that bias against a particular race, religion or other factor was involved in a crime, the issue can be used in sentencing even if the hates crimes statute wasn't used in prosecution. A harsher sentence may result if hate was a factor, in much the same way that assaulting an elderly or child victim figures into a punishment.

"The judges want to have as much information as possible. The courts tend to be very inquisitive as to aggravating and mitigating factors." Postowko said.

Even when hate crime laws are not used in prosecution, their very existence has value. Beyond their ability to elevate charges and produce stiffer penalties, they serve to educate the public about crimes committed because of a victim's identity. That public awareness has convinced former hate crimes skeptic Callahan that the statues are important.

"My initial reaction as a prosecutor was that I wasn't sure why we needed the extra complexity because in trials it [the hate motive] comes out anyway," Callahan said. "But now I think it is a good development because it focuses public attention on these special kinds of assaults."

The state of hate

Last November, the Jewish Light received a grant from the Press Club of Metropolitan St. Louis to study hate violence and its affects not just among Jews, but also other groups. The St. Louis Beacon partnered with the Light on two of the stories, as part of our Race, Frankly series.

Nancy Fowler Larson is a freelance writer in St. Louis.