THE BLOG

Why Are Hate Crimes So Difficult to Prosecute?

02/16/2015 09:32 am ET | Updated Apr 18, 2015

The tragic and violent deaths of students Deah Barakat, Yusor Abu-Salha and Razan Abu Salha, in Chapel Hill, North Carolina, have reignited a fierce debate about the propriety of "hate crimes" or "bias-motivated" crimes, as they are also called. Craig Hicks has been charged with first-degree murder related to these deaths. Many community members are outraged that local authorities, who maintain that the deaths were sparked by a dispute over parking, have yet to charge him with a hate crime because all three of the victims, who were shot execution-style in the head, were Muslim.

Hate-crime statutes typically allow for a penalty enhancement if the defendant committed the crimes because of the victim's membership in a protected class such as race, ethnicity, religious affiliation, and in some jurisdictions, sexual orientation. Many critics of hate-crime statutes note that if the defendant could be punished for murder, assault or another crime established under the law, then the motivation for the crime is irrelevant. However, proponents of such legislation argue that hate crimes are distinct in their harm and that the enhanced penalties offer deterrence and a symbolic denouncement of the bias that precipitated the crime. For example, in describing the particular harm that hate crimes visit upon the victims and the broader community, former President Bill Clinton poignantly noted that "[Hate crimes] weaken the sense that we are one people with common values and a common future. They tear us apart when we should be moving closer together. They are acts of violence against America itself."

Aside from the arguments about the merits of hate-crime statutes, these crimes are notoriously difficult to prosecute because of the high burden prosecutors face when proving that the defendant's bias indeed motivated the crime. It is this issue that has angered many community members who wish to see Craig Hicks charged with a hate crime. Authorities have said that the crime was caused because of a dispute over a parking space. Authorities state that they have not yet found evidence of bias, despite the fact his online postings contained negative views of religion in general and that family members say his behavior toward the students increased when two of the students married, and the wife, who wore traditional Muslim dress, began to reside at the complex.

Given the increase of hate crimes against Muslims in this country over the past several years, it is understandable that many community members would encourage authorities to conduct an investigation to determine whether Hicks targeted his victims because of their religion. Hate crimes against Muslims in the United States have increased since the September 11, 2001, attacks on the United States, and according to the Southern Poverty Law Center, there was a dramatic spike in these crimes since 2010.

Whether the deaths of the three students in Chapel Hill will be considered hate crimes depends upon the evidence investigators find in connection with the crime. A defendant's statements about wanting to harm members of certain groups would be the strongest evidence to demonstrate motivation, but unsurprisingly, such confessions are rarely forthcoming. Other evidence might include the defendant's membership in a group that espoused hatred for certain groups, the defendant's writings including online posts, or the use of slurs during the crime. Without this or similar evidence, a prosecution based on bias would be difficult to sustain.

If the local authorities decline to prosecute the crime as a hate crime, it is possible that the federal government could bring criminal charges under the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, and the Federal Bureau of Investigation has already launched an investigation into the students' deaths. The evidentiary burden at the federal level essentially is the same in terms of the proof of motivation, and therefore federal investigators will be searching for the same evidence of bias.

Hate crimes statutes are an important step in deterring and prosecuting crimes based on membership in certain groups, and can help ease the secondary victimization and marginalization that members of targeted groups experience when a bias-motivated crime occurs in their community. Criminal statutes necessarily carry high burdens given the liberty interests at stake. Our nation has a long and violent history of domestic terrorism against groups that went unpunished. Less than a century ago, lynchings of African Americans were common place, and spectators spread blankets and enjoyed picnic lunches at these events, while the perpetrators of violence were never prosecuted. One question to ponder, however, is whether our nation's laws have achieved a proper balance between protecting victims of these crimes and the rights of the defendants accused of committing them.