Why Anti-Asian Hate Crime Is Not Being Charged Enough

demonizing Asian communities, enough is enough. We need leadership across our country, in every state, at every level of society to take action and bring justice to our victims. We've got to stand up to these hate crons. Prosecutors in the Georgia case have not yet decided whether to pursue a hate crime sentencing enhancement to the murder charges the defense and is already facing. In fact, incidents of assault and harassment that look like hate crimes are often not

charged as hate crimes because of the legal requirements. Joining me is Jack mcdevit, a professor at the School of Criminology and Criminal Justice at Northeastern University and director of the Institute for Race and Justice. What is the definition the legal definition of a hate crime. I hate crime is a criminal incident that's motivated either entirely in part by a person's difference. And we're talking about hate crimes, we're talking about criminal incidence. We're not talking about things

that would be non criminal. So, for example, if someone uses a racial slur, that's protected speech in the United States, so that wouldn't be a hate crime. Even if someone gave a speech and said, you know, I believe that all of this group should not be in the United States, that's not a hate crime. So we're talking about crimes like assaults, threats, harassment, things like that that are already criminal incident. And then the motivation for it is the

person's difference. But the important out of that is in most states it has to be only partial motivation. So in other words, if you think about a crime where someone might decide to go rob people and they choose to rob immigrants, so people they perceived to be immigrants because they think they won't go to the police, and

that's still a hate crime and a robbery. It seems as if it, I don't know, if it's you know, the fault of police, the fault of prosecutors that hate crimes aren't being charged in all the incidents when they could be. That's absolutely true. Both groups have some fault in this. So for example, if we're talking about a victim comes to the police and says that they were a victim of a hate crime, sometimes the police we'll tell him, no, it wasn't just go on about your business.

It was just kids playing or something. And in that way, the police would be the ones that were causing it not to be recorded as a hate crime. On the other side, process cut is frequently say, let's think about the cases in Oakland. When you see on the video take people being thrown to the ground, that's an assault, assault and battery. And what the prosecutor might say is with this video, I can get a jury to convict

pretty easily on an assault and battery charge. But if I then add on a hate crime charge that says that they assaulted them because they were Asian, I have to have different evidence and more evidence to prove that part. And it's easy for me to get the conviction on the assault. So why would I make my life more complicated by trying to get the conviction on the hate crime too? And the reason to get the conviction on the hate crime is so that the perpetrator, if convicted,

gets more prison time. I'd say that's one, but not the most important reason. The most important reason is to say to the members of that community that we understand these crimes are motivated by bias, and that we are gonna take them seriously and we're going to try to

protect you. And so the more important reason to use the hate crime charge is to send a message back to the members of the community that's being attacked that we don't share the bias of the offender, and that we reject the notion that you shouldn't be in this community.

Hate crimes are symbolic. The offenders want to send a message that we don't want you in our community, our workplace, our college, campus, are high school, and we have the society have to send a message back that we reject those notions, that we want a more diverse society and we want everyone to be a functioning part of that society. What kind of evidence can a prosecutor introduce to prove something is a hate crime. I take it if someone yells a slur and while they're committing the crime, but

what other kinds of things, Well, you're exactly right. The most common evidence is nin calling and slur during the course of an event. Often offenders will say you know you so and so go back to your own country,

or you don't belong here or whatever. But more commonly these days are increasingly common these days, one of the things that happens is that individuals will go into chat rooms, and so when the police make an arrest, they generally seize the computer to see what kinds of searches people have been doing. And we see more and more these days that offenders go into chat rooms of like minded people who feel that, you know, that share their biases, and they get egg gone to act them out in

these chat rooms. So if they see somebody who's been in the chat room been saying things like we should get rid of all of this group of our community or whatever, that is also part of the evidence that can be used at trial. Now, in order to charge a hate crime, does the state itself have to have hate crime legislation in place, or we now have federal legislation with the James Bird Matthew Shepherd Act, we have

federal legislation that could be charged federally. But the vast majority of them will be charged at the state level, right, and each state has a differention of hate crime laws, which makes it complicated. So, for example, lgbt Q for oaks are protected in most states, but not all as a protected group. Women interestingly enough are not protected in every state, but only in some, so we do have a bit of a patchwork across the country of laws. Some of them are standalone laws that say, you know,

if you commit this or bias, it's a crime. Others, as you suggested before, what they call sentence enhancements, which means that if you commit an assault and you get a penalty of five to ten years in prison, if it's bias motivated, we can add a year or two years onto that penalty. What does it take to get federal prosecutors to charge a hate crime? They're rare. But what we're looking at from January six is a bunch of federal prosecutions for the rioters who went at the capital.

And so generally speaking, it has to be a federal nexus, and what I mean by that it has to be on federal land or dealing with someone who's involved with providing federal services. And we can then go ahead and Chary gen on the federal system. Those more common federal approaches though, that what will happen is the FBI will offer services support services to a local law enforcement agency. And that's really helpful and important because these are rare events.

We you know, we see them a lot in the media, but an individual jurisdiction where you might have a police department who's dealing with regular, normal crime, they may not see more than a handful of them in a year, and so to have the expertise of the FBI be able to come in and help you, and also the resources of the FBI to help with an investigation is

very beneficial. Even though forty seven states have hate crimes, eight six point one per cent of law enforcement agencies reported to the FBI that not a single hate crime had occurred in their jurisdiction in according to FBI data. Is that because they don't want to show that those crimes are there, because they just don't recognize them. I think it's both of those things, and it's also honest reporting in some cases. So I think you're you're very

insightful what you say. Some police departments go back. I started training police on this with the FBI in the so and then those days, they were all afraid that their community was going to be called racist, and they didn't want to report hate crimes because they're afraid of what it will do to businesses and property and their community. I think we're mostly past that now, but obviously some departments still are afraid of that. So there's some of that.

The other thing is that frequently, as I was saying, police don't want to get involved in a case where some of those rocks to someone's window, and they would rather report as vandalism, and so they just make mistakes. And I'll give you an example of one in a moment. And then we also have places where there are obviously hate crimes. We've had big cities of over a hundred thousand population that have reported zero hate crimes over the years.

And that's just crazy, and that means that there's not a commitment to prosecuting hey crimes. What we've done in our research and others have looked at it is and we talked to police departments across the country about hate crimes, and and I'll give you one anecdote. We went to a police department in California one time, and we were saying, you have reported zero hate crimes. Have you ever had one that you thought was a hate crime? And they said, yes, you know, I want to tell you about it. We

thought we had a hate crime. We investigated and it turned out it wasn't. And so I said, well, what did you learn. Well, a black family moved into an all white neighborhood and somebody burned a couple of crosses on their lawn. And I was lit incredulous and said, um, how could that not be a hate crime? And they said, well, we went and we got the crosses and we looked at them, and it turned out they were really small crosses. They were less than a foot tall. There were four

of them, but they were all really small. And in the police department's mind, you know, it had to be a six ft cross wrapped in rags like they've seen intelligion and they said, oh, this was just kids. This isn't a real hate crime. So sometimes agencies just need to understand more about how these things manifest themselves. So that brings up Atlanta, where out of eight victims, six were Asian, two were white, from two different businesses, and

the suspect denies being motivated by racial animus. How should the police and the prosecutors be proceeding here to get to the bottom of it. It's a great question and it is a difficult case, but they should be looking at, you know, what made this individual target these particular establishments. They individual and the media reports is saying that they have a sex addiction and they were trying to remove temptation. But that's what a lot of hate creme offenders say.

If these people weren't here, I would be better off. What we find is most hate creme offenders tend to be people who are not successful. There are people who are to work, or their marriage has dissolved, or their families having fights with them, and they're blaming somebody else for the situation they find themselves in. And it seems like this individual fits that model to a t blaming the women working in the massage powers for his sex addiction. And so I would definitely look at it as a

potential hate crime. Obviously the murders as well. But I mean to send the message to the Asian community. As you know, looking across the country right now, members of the Asian community are incredibly frightened and they go out in groups as opposed to singly. They have patrols to support their elderly members of the community, and we need to send messages back that we're not going to tolerate people attacking members of the Asian or the Asian American community.

And one way to do that is to charge and get convictions in hate crime offenses. So what would they have to show in Atlanta? It's not enough that there were six Asians out of eight victims of the businesses were owned by Asians. If he doesn't actually say it, they look through his background to find to his background, they look through the computer sits he's been saying it, as he'd been going into anti Asian you know, chat rooms talking about you know, what's wrong with the Asian community.

Has he himself sent threats via his computer, emails or texts that say, you know, anti Asian sentiments, those kind of things would be the kind of evidence that would help the police understand that this is part of the motivation. It's also true, you know, it is It is the case that if we look back before the last administration, we saw a spike in anti immigrant hate crimes, and

that spike was associated with legislation in multiple states. Studies in California, as you remember, anti immigrant kind of legislation that denied them rights or privileges or try to keep immigrants out of community. And we saw that was followed by a spike in hate crimes in those states. And what happened is when we start to demonize a group like that, at that point, it was immigrants. At this point, because of the pandemic, it appears to be Asians and

Asian Americans. You know, that emboldened some people out there to say, well, yeah, they don't deserve to be here. Well, yeah, if I hurt one of them, no one's going to care. And so that's the dynamic. And so that dynamic may

have been part of this. In other words, this individual could have been emboldened to say he was always thinking about something to do to them, but now with the rhetoric of you know, the Asians associated with the pandemic, which is completely wrong, it emboldened him to say, Okay, well if I go out and act on this feeling, I have, nobody's going to care. What's your take? Do you think that the Atlanta shooting should be charged as

hate crimes? Well, obviously it should be charged as murder first, but I also think that it would be very helpful if they had the evidence to charge it as a hate crime. And so they should be looking for, as we talked about before, what kinds of state this individuals made on social media, what kinds of chat rooms and websites he's visited, to see if there's a case that says he has articulated anti Asian bias and that that may have contributed to the murders that he committed. Should

the bar be lowered for bringing hate crimes? Absolutely, we don't have many. There's five thousands in a year in the United States, so that's not a huge amount compared to all of the other crimes that are being reported. But to give you an example in Massachusetts, for a hate crime to be found against a woman, in otherwise the woman was the target of a hate crime, the person hated women, which may be the case in obviously

the Atlantis situation. One has to show that the person committed the act against a woman, But then they have to show that they prior incidents where they had restraining orders by different women in their path. So the bar is so high to be able to get a anti female hate crime. You know, you have to find this case where this person has been a serial offender for

women and the documentation of it. And so I think that yes, like I gave you the case with the crosses, we tend to look for the most egregious crimes as hate crimes and not some of the more everyday crimes that we see. There are also bias motivating. It's important to understand that people are incredibly vulnerable hate crime victims, and the reason for that is that you carry the

cause of the victimization with you. And what I mean by that is, as a criminologist, I could tell you if your house was robbed, how to make it less likely that your house would be robbed again, and you can put in alarms, we could tell the police, We could do a lot of things. But if you're attacked because you're black, or somebody perceives you as Jewish or your Asian, what do you do to make yourself feel safer? Wherever you go? You still carry that characteristic with you.

And so that's one of the reasons that hate crimes are different and they call for different kinds of responses. Thanks for being on the Bloomberg Law show Jack. That's Professor Jack McDevitt of the School of Criminology and Criminal Justice at Northeastern University and director of the Institute for

Race and Justice. Supreme Court Justice has indicated Tuesday that an Appeals Court ruling could harm public safety on American Indian reservations, with several justice is raising concerns ranging from drunk drivers to serial killers. Joining me is Bloomberg Law reporter Jordan Ruben. Jordan tell us about the incident in the case, So, Joshua James Cooley was pulled over on the side of the road US Roots Well around one

in the morning one night in February. And this road that he was pulled over to the side of runs through the Crow Reservation in Montana, and there was a Crow Highway officer who went over to check on the truck because it's an area that didn't get great phone reception, so it wasn't necessarily looking for criminal reasons, just to check to see what was going on. And there was a lengthy encounter. Then when the officer went to the car, Coolie actually had a young child with him as well

as multiple guns. And it turns out the methamphetamine and Coolie wound up getting charged federally because as a non native person, the tribe didn't have jurisdiction over him. But even though he was being charged in federal court, Coolie said that because he was initially detained and searched by a tribal officer, that tribal officer didn't have jurisdiction, and so he moved to suppress the evidence on those grounds. And what did the Ninth Circuit rule? The Ninth Circuit

approved the granting of the suppression motions. So the Ninth Circuit, like the federal district court, ruled in favor of Coolie. They said that the tribal officers jurisdiction is limited in

the following way. They said that an officer can stop a person who's traveling on this public right away within the reservation to determine whether they're Indian and therefore whose jurisdiction they'd fall under, and if they're not, or if they're not able to determine this, then the officer can only detain the person to then turn them over to state or federal authorities if it's a parent or obvious

that state or federal law is being violated. So in this instance, wasn't it apparent when he saw the guns that state law is being violated. Well, there's a question over at what point those laws would kick in, and so Coolly would say that by the time that they were deeper into this interaction, that the officer had already violated his jurisdiction because at the point where the officer determined that he is a non Indian, that should have

ended the matter. And then the Crow officers should have called for back up at that point and not done anything further in terms of delving into the car and continuing the interaction. And so it's an additional question which came up during the argument in the case as to what counts as a parent or obvious. But the government is saying that this is a basically an additional, unnecessary standard that's grafted onto the usual reasonable suspicions standard that

cops would need in normal roadside interactions. So the Justice Department is fighting the Ninth Circuit decision and with the backing of the tribes, yes not just the Crow tribe, but many other tribes and other similar interest groups as well, because it's a ruling that could have wide implication across

the country. Is this a challenge to tribal sovereignty. I think that that's certainly one way to look at it, because the whole backdrop of these cases is stemming from this really long and pretty sordid history of tribes being dispossessed of their land, and they're all of these important questions of what jurisdiction they have left. And so it's

against that backdrop that the federal government is saying. The tribes are saying too, that they have at the very least this limited authority to maintain some semblance of order on their reservations, and so they see it as a challenge to that. They see Cooley's argument and the Ninth Circuits argument as really challenged them at least being able to maintain this order on their reservations. So the geice's concerns seemed to run the gamut from drunk drivers to

serial killers. Tell us about that, right, So this complicated setup where you can only do limited things in terms of determining someone's status, raises all these questions of what exactly an officers allowed to do and what they're supposed

to do. Justice Thomas, for example, raised the question of what if the driver fits the description of a known serial killer, but they didn't commit any crimes on the reservation and they're non Indian under the Nine Circuits rule, would the officer then just have to let that person go? Questions like that where it raises the issue of what exactly officers are allowed to do and whether the Ninth

Circuits rule is workable and safe. And a bunch of the justices, obviously along with the Justice Department, suggested that the status quo in the Ninth Circuit is not good and not safe, and that's what's leading them to challenge that ruling on appeal. So, Jordan, what was the best argument made by the defendants attorney? So in a lot of cases, there will be one side that's focusing on all of these negative consequences that can come out of

parade of horribles. I think the the sense was looking to not really get into that and just say, look, this is more of just a straightforward matter of whether the tribe has this jurisdiction, and his arguments was that they don't, and this is the legal argument that he made, but it also could potentially go to the practical concern.

He said that a lot of issues can be avoided by cross deputizing tribal officers with other jurisdictions than that way, they'd be able to act under the authority of these other jurisdictions. And the Justice Department in turn had responses to that and talking about why the government thinks that that's unworkable. But there certainly are arguments to be had on the other side. Just after the argument, it's not clear to me that they're going to carry the day here.

And Chief Justice Roberts said that the Supreme Court has recognized that tribes retain some inherent authority. Did he explain what he meant by inherent authority? Well, that's an important point that really sets the whole backdrop here in what I mentioned before and talking about how, you know, just the fact of a reservation. We're talking about land that

is still left that tribes have. And so the issue, and this is an issue that the government is putting forth, is that that's what gives them this jurisdiction, at least this limited instance temporarily before they turn a person over, is this inherent authority to act in this way. And so it's really an issue that kind of paints the whole backdrop here because even though the justices seemed sympathetic

to the government's argument. There's still debates over where exactly this native authority comes from, and there are different aspects to that. And so while it does seem like the Court is sympathetic deciding with the government, it's not exactly

clear on what grounds they're going to do that. Former federal prosecutor is appointed by both Democratic and Republican presidents, told the court in a statement that Indian country criminal jurisdiction is quote a confounding morass for tribal, federal and state authorities. After hearing these arguments and in studying this case,

does that sound about right? I think so. And that's the point that I think Justice Kavanaugh latched onto during the argument where Justice Kavanaugh raised the point that and this was while the defendant, Cooley's lawyer, was arguing and saying, look, the government's argument might have some things to criticize about it, but Justice Kavanaugh was saying, there's something to be said for trying not to do further damage in a sense to this complicated morass and just trying to keep being

simple here. And so there's no doubt, no matter which side of this year on that This is a complicated area of the law, and so hopefully at least one thing that the court can do here is maybe try and clear up just how all these different interlocking laws

apply here. What was justice course? It just take in particular, since he was the justice who wrote the opinion in the Oklahoma case, that's right, he wrote the mc grant decision last year, and that was an incredibly important opinion for tribal sovereignty, which also arose in a criminal case. So at a very broad level, it does have some similarities with this case. It does seem like justice Course,

which is inclined to side on the tribal side of things. Again, although in this case the issue is being raised by the federal government and that's the tribes who are as an amaricust supporting the government. He raised again this issue which I think tribal observers appreciated in talking about looking at it from the standpoint of what authority do the tribes have left? And starting from that standpoint, and so from the point of if it hasn't been taken away,

then its authority that they still have. And that's a very important principle that Native American law practitioners looked to, and so they saw Justice Gorsuch's questions as good ones for the federal government and the tribe in this case. Just a general question, if a crime is committed on an Indian reservation by a non Indian, can that person be tried in the tribal courts? No, they can't, and that's based on prior Supreme Court precedent, which isn'n at

issue here. But it's one thing that complicates matters. That's part of what goes to the jurisdiction argument that the officer in this case, the crow Chipe officer, didn't have jurisdiction even for this limited purpose. Let's turn to something else Supreme Court related, and that's the appeal in the case of the marathon bomber Joe Harris and Nayev, and the Supreme Court decided to take the appeal. What's the

focus of the appeal. The focus of the appeal has to do with pre trial publicity, and the First Circuit Court of Appeals this past summer said that the trial judge in the case didn't do enough to probe jurors about it. And so obviously this was a hugely public case and a lot of media attention and the Appeals Court wounds up reversing the death sentences on those grounds,

and this petition was pending for months. Does it seem odd that the Justice has decided to take the case even when the administration has changed and the position on the death penalty may change. Does it seems strange? Yes? And no. So the reason that you could argue that

it's strange is because there is this new administration. Obviously, President Biden has said that he opposes the death penalty, and so you might think that the Court will be at least waiting to see whether the Justice Department now

under him might withdraw the petition. But on the no side of it, I think, by looking at the way the calendar worked out here is that there was a conference, a whole conference at least a week that went by since the time that Merrick Garland was appointed Attorney General, And that was one important step that I thought maybe the Court was waiting on to see whether they would

take the case or not. And between the time that Garland was appointed and the Court's decisions to grant the case, there was a couple of weeks that had gone by

and there was no word from the Justice Department. So I think it it's very possible that the Court was waiting to see what the Justice Department did, and that's why the Court didn't do anything for all these months, and then perhaps said, look, this new administration, whatever it's going to do, it had the opportunity to change its position,

and so we're going to grant the case. Now the administration could still change its position, but now it's going to have to do it in a slightly more awkward

posture if it does. The administration has changed position in at least five times since Joe Biden became president, so I suppose it won't be so unusual for it to do it here, right, And so again that goes to the point of the Court knows that this administration knows how to change positions, and so it certainly had the opportunity to do so before the Court granted review in the Cernai of case. But for whatever reason, the Justice Department chose not to do anything, at least not yet.

Thanks Jordan's that's Bloomberg Law reporter Jordan Ruben, and that's it for the edition of the Bloomberg Law Show. Remember you can always at the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com slash podcast slash Law. I'm June Grasso. Thanks so much for listening, and please turn into The Bloomberg Law Show every week and then at Chenpian Eastern right here on Bloomberg Radio