Why the Feds Won't Prosecute West Virginia Torture Case as a Hate Crime

The Reverend Emanuel Heyliger, pastor of the Ferguson Memorial Baptist Church in Dunbar, West Virginia was livid when he got word that federal prosecutors won't prosecute the attack on Megan Williams as a hate crime. It seemed that if ever there was a case that screamed for the feds to jump in and charge the six crime prone, apparently hate spewing whites that assailed the young black woman with a hate crime, this was the case. The heinous facts seemed beyond dispute. The bunch allegedly kidnapped, tortured, raped and harangued her with racial epithets.

But Heyliger in his understandable anger missed one thing. The feds will do anything and everything possible to stay out of state criminal cases, especially cases that are racial tinged. There are two reasons for their keeping hands off. Federal prosecutors are loath to step on the toes of police and prosecutors in criminal cases, no matter how badly the crime is tainted by race. Federal prosecutors flatly said that William's assailants are more likely to be convicted and get stiff sentences in state court. That makes perfectly good legal and political sense.

The other reason for their non-involvement is much more troubling. Federal prosecutors have rarely placed much stock on bringing criminal civil rights cases. They see them as no-win cases with little political gain, and the risk of making enemies of local police, DAs, and state officials. The rare time that the feds cracked down on civil rights violence was during the 1960s civil rights battles. The wave of violence then stirred national and international revulsion and forced then President Lyndon Johnson to order more civil rights prosecutions.

Though federal prosecutors in recent times have had more than sufficient legal ground to bring cases in the old race murders from the 1960s, the prosecutions have been almost exclusively in state courts. The only exceptions to the set in stone rule that prosecutors stay out of state cases occurs when a hate crime triggers a major riot, generates mass protests or attracts major press attention. The Rodney King beating case in Los Angles in 1992 is still the best example of how it took a mass civil upheaval to move the feds to go full blast after a conviction of the police that beat King, and then only after a failed prosecution in state court. The King case is also an example of how criminal cases with clear civil rights abuses become highly politicized and racially divisive.

The Williams case is a near textbook example of how prosecutors deal with crimes, even possibly racially motivated crimes. They may be horrific, but they are seen as common crimes and are treated as such. Few state prosecutor will chance inflaming racial passions and hatreds by slapping a hate crime tag on a case.

There's also the belief that hate crimes are mostly a thing of the past. When they do occur, they are isolated acts committed by a handful of quacks, and unreconstructed bigots, and that state authorities vigorously report and prosecute the perpetrators of these crimes.

When Congress passed the Hate Crimes Statistics Act of 1990, it compelled the FBI to collect figures on hate violence. However, it did not compel police agencies to report them. Record keeping on hate crimes is still left up to the discretion of local police chiefs and city officials. Many police departments still refuse to report hate crimes, or to label crimes in which gays, and minorities are targeted because of race or sexual preference as hate crimes. Still other police departments don't bother compiling them because they regard hate crimes as a politically loaded minefield that can tarnish their image and create even more racial friction. The official indifference by many police agencies to hate crimes prevents federal officials, even if they wanted to more aggressively enforce civil rights laws, from accurately gauging the magnitude of civil rights violence.

The picture of how much hate violence there actually is in the country and even what constitutes hate violence is even more blurred by confusion and uncertainty over what makes a crime a hate crime. Simply pillorying someone with racial epithets while committing a physical assault may not pass the legal muster of what is a hate crime. The crucial element is whether the racial epithets shouted out were incidental to the attack or were they the precipitating factor in the attack? It's the finest of fine legal hair splitting. But ultimately that's what prosecutors rightly or wrong look at in deciding whether they have any chance to get convictions in crimes where race is involved.

The black ministers in West Virginia are dumbfounded at the apparent refusal of federal prosecutors to recognize what they see as a cut and dried case of white bigots brutalizing an innocent young black woman. That's probably exactly what happened. Yet when prosecutors try to sort out whether a crime is a hate motivated crime or just plain crime it's anything but cut and dried.

Earl Ofari Hutchinson is an author and political analyst. His new book The Latino Challenge to Black America: Towards a Conversation between African-Americans and Hispanics (Middle Passage Press and Hispanic Economics New York) in English and Spanish will be out in October.

Comments

[Libertysconscience]

The blatant ugly truth is America's two tiered criminal system that is long overdue for it's own version of a Civil Rights Equality Act while a political ugly factor surrounds whether these good old boys did this to unseat Senators Byrd and Rockefeller.

A Louisiana Senator who along with another Senator from his own party proclaiming Family Values exhorting morality when caught both fail to execute upon themselves the justice they decried and gave Bill Clintonis. Since their caught they want a genuflecting absolution doing what they campaigned against, passing laws that cops under former AG Gonzales enforced against gays, catching sexual predators' easiest access to children using bathroom stalls, eradicating spreading spousal STD and AIDS transmission by busting organized prostitution rings.
One American truism reflects International Human Rights violations regarding America's criminal system and extreme sentencing waged against blacks or lack of recorded by Ms. Pitts and this teenager's rape tainted by the same racial hate imprisoning a Mississippi teenager for a decade engaged in consensual sex that's lawful Utah's Mormon state involving 14 yr old girls, and the Jena, Louisiana black high school students given a 22 yr sentence for fighting after being tauntingly assaulted by the hanging of three nooses hung after blacks sat under a tree exclusively used by whites, the ulitmate vestige of racial hatred culminating in lynching,that exemplied the poignantly inspired soul rendering song of Billie Holiday's horrific experience performing in the South witnessing countless lynched decaying burnt corpses of blacks titled: Bitter Fruit.
the presidential response is silence as if condoning the disproportionately extreme criminal sentencing including the Floridian police detained a traumatized handcuffed kindergarten girl in a squad car screaming for her mother threatened with arrest by attempting to console her daughter while two senators, White House staffer, and Karl Rove got kidglove treatment, allowed to recant their statements evading prison? West VA's rebutting this hate crime recounts America's history espoused by Hitler's book,and adopted by South Africa's criminal system for blacks.
Iraq's parliament and Sudan scoffs America's insistence both embrace equality watching our presidency's silent hypocrisy of criminal injustice of blacks.

[Nommo]

On point, LC. The song was "Strange Fruit". As for the Nazi's they adopted their strategy, as the apartheid mongers did, from the reservations created here to contain the indigenous people.
It is difficult to keep the despair at bay thinking about the ridiculous things that happen to Black children at the hands of so called educators, police and those who are complicit in their silence.
Thank you for this post.

[CriminallySane]

I believe I heard this morning that the state statutes under which the defendants were to be charged carried heavier penalties than the hate crime legislation.

Which is it you prefer? Having the kidnappers, torturers and rapists punished by incarceration for as long as possible, or making a dubious political point?

[jhNY]

The most disturbing element in much of the commentary here is that the writers are debating hate crimes law as if it were an item pending in congress. They don't think it can be effective, they think other laws already in place are adequate, etc.

The hate crime laws Mr. Hutchinson writes about are on the books, the law of the land. Federal law. What he's pointing out is that the feds are loathe to act on them, which I guess is a kind of prosecutorial nullification. They can get away with this, of course, because for some reason despite their place in the statutes, they are in the minds of many still open to debate.

[MaxD]

Laws put on the books can be taken off the books. Its all always open to debate jhNY. And even if were supported by 99% of the people in this country, it would still be open for debate.
Moreover there is good reason for debate. This isn't a cut and dried issue. I for one enjoy it, and certainly learn a great deal from my discussions in this forum.

[MaxD]

I am completely unconcerned if the assailants of this poor woman were shouting racial epithets while, during or before the actual crime, which was rape, torture and kidnapping. I hope these criminals all fry. But I think whether or not they hate black people is as salient as the fact they like to rape people. Flip the particulars, and insert the words cracker bitch or white ho and I bet the author won't be clamoring for the trial to be adjudicated with any such "hate crimes" rubric.

Hate isn't a crime. Saying mean-spirited things is protected. Raping, kidnapping and torture for any reason is a crime. Was part of their motive racial prejudice? Possibly. Who cares? All violent crime involves some unpleasant emotional state. It all involves some extreme valuing of ones own experience over victims. It doesn't matter why these guys did what they did, except to show they had reason to do it. What does matter is that they chose to do it.

[gerbilsbite]

But it does matter why they did it. Motive is a factor in determining the type of crime was committed (think voluntary versus involuntary manslaughter, or first-degree versus second-degree murder), and in determining the severity of sentence. Our criminal justice system has always considered motive an important factor. Hate crimes legislation simply expands the number of felony crimes where motive can adjust the severity of the prosecution and sentencing.

You're right that hate isn't a crime, but when that hate is used to provide a motive for committing other crimes, it should be taken into account--the criminal is less likely to be rehabilitated, more likely to self-justify or rationalize their actions, and more likely to cause wider societal unrest. All three of those factors would justify longer incarceration and more severe prosecution.

[MaxD]

In my reply to your earlier post, I said that it is taken into account as much as it needs to be. That is to establish first, second and third degree offenses, etc.
I completely agree that motive is an important factor in establishing culpability for a crime, and now these jerks get the book and no soft touch. I think the system has this part of things covered already.
I am just unconvinced that Hate Crimes legislation will do much to reduce this type of crime, beyond that I worry that it will bleed into hate speech laws. Admittedly not a foregone conclusion, but appears to be the way of things in other well meaning modern countries.

[Nommo]

The feds are real busy, anyway. They are just getting around to hate crimes that happened forty to fifty years ago against Blacks in certain states where the Klan and law enforcement were one and the same. Most of the perps are dead or just slightly more addled by age than they were by hate lo those many years ago.
Twenty or thirty years from now they will be proscecuting all those hate crimes against Stewart, Diallo, Smallwood, Richardson, Dorismond, Evans and Glover, just to name a few.

[snaggster]

They've got plenty of time for the likes of Jose Padilla or Tommy Chong, though.

[Lon]

If the federal government is holding the hate crime provisions in reserve for cases in which states fail to do their jobs out of sympathy for the assailants, I am not sure that is a bad thing. The penalties for kidnapping and torture are severe enough that nothing would be added in the form of punishment with the hate crimes charge. In cases in which state officials simply blow a conviction then a retrial is too close to double jeopardy.

But there remain conditions under which state officials may refuse to pursue charges seriously (particularly as in the King case when the assailants are government officials) and that is probably the best use of federal resources here.

As to Ben Dixon's middle question, of course not all crimes are hateful by their very nature if by that you mean that they are done out of hatred as the word is used in "hate crime laws." Actually the majority of crimes are probably done out of avarice with no real concern either way for the victim.

[Ben Dixon]

What is the point of charging someone with a hate crime? Aren't all crimes hateful by thier very nature? Would this crime be any less terrible if a white or asain or hispanic woman had been attacked?

[dn]

"Aren't all crimes hateful by their very nature?" Good point, but the definition of a hate crime is seeking out victims based on their race, religious beliefs, or sexual preferences. When they tell Williams, "This is what we do to n---ers out here" I don't see how that is not classified as a hate crime. The crime was based on the premise that they have some moronic justification of their acts through their disdain for people with pigmented skin.

[MaxD]

It is a hateful thing sure. But most criminals have some moronic justification for what they do. Criminals always seek out people who are weaker than they are in an effort to achieve their goals. Mugging then is a crime? Hate against the weak, and unsuspecting, and then unguarded? Home robberies now should be hate, hate against well to do home owners? The criminals sought them out right?

[gerbilsbite]

Motive matters. If you shoot and kill a person, your motive can make the difference between an NRA award and a needle in the arm. Voluntary manslaughter, involuntary manslaughter, first degree murder, second degree murder, justifiable homicide...they all have the same end result--a dead body by someone else's hand--but they are treated differently based on motive.

Further, some crimes destroy families, and some destroy communities. Certain crimes can be far more destructive to societal order than others. A murder is a tragedy for family and friends, but a lynching is an assault on an entire segment of a community in addition to a tragedy. Society is absolutely within its rights to consider the destructive intent and impact of crimes in determining the scope of prosecution.

[MaxD]

Gerbils,
I think you make a very good point about motive, but it only illustrates my point. Hate is too general a term.
As well you are absolutely right that society is free to debate this. I just think hate figures to prominently in most violent crime. Moreover your distinction of the way punishment is meted out also does more for my case than yours. Had the girl died, this would be a first degree murder case. This is as cut and died a case as it is possible to get. Adding this dimension of hate crimes would likely make things worse for the case. Clearly these people intended to rape and terrorize another human being. Isnt' that enough without adding a dimension that, once allowed, will be un-ending.
Furthermore, I am uncertain if the case has been well made that punishing people for "hate crimes" is more or less divisive for communities. This kind of thing happens in the reverse and no one is clamoring for hate crimes prosecution when the same motivation is extant.

[breakfast]

It is tough enough catching and prosecuting the various perpetrators of crime without adding a political element to the process. The obsession with "hate crime" reporting and prosecution is pointless and counterproductive and is just another way of playing the race card.

[jhNY]

The phrase "playing the race card", if ever there is a context wherein its use is not meant to stifle the very basis for complaint, is out of place here certainly, in that a person was tortured and humiliated on the basis of her race. Most often the phrase is employed by persons who wish to point out the irrelevance or inappropriateness of bringing race into an unrelated discussion. In this case, "playing the race card" is no less appropriate than a person who, having been held up by a robber brandishing a pistol, plays the "armed robbery card."

[gerbilsbite]

And it's tough enough finding killers without having to wade through all that namby-pamby crap about whether there was malice aforethought or justification. This obsession with differentiating between first-degree murder and justifiable homicide is pointless and counterproductive: all killers should be treated the same regardless of motive.

Right?

[Nommo]

Geez, Earl, whaddya want? They kidnapped and tortured a human being, not a dog.
I have always been leery of this "hate crime" notion in that it can subject one to a double jeopardy situation. The question remains as to whether the state can vigorously prosecute the crimes committed there.