Q & A with Oscar Garcia, San Diego Deputy District Attorney, Hate Crimes Unit
Editor’s Note: Oscar Garcia has been a prosecutor for 24 years, and for the last three years, he’s specialized in hate crime cases in San Diego County. His team prosecutes on average 15 to 20 cases every year. NIOT.org spoke with Garcia about California’s hate crime law, the challenges in doing this work, and the role law enforcement can play in helping improve underreporting of hate crimes, as well as hate crime prevention.
NIOT.org: Who is protected under the California hate crime statutes?
Oscar Garcia: I like to refer to hate crimes more as crimes of bias, because that focuses in on what as a prosecutor I need to prove to a jury. I need to prove that the offender was substantially motivated by a bias against a particular group. In California, the protected categories are race, ethnicity, nationality, sexual orientation, gender, religion and disability, which can be both a physical, and/or a mental disability.
NIOT.org: How do you respond to the belief that all crimes involve hate and that hate crime laws are redundant?
Oscar Garcia: I hear that a lot, even at the judiciary level. One judge told me in open court on the record that he really didn’t agree with the hate crimes statute or that we should be punishing people for what they’re thinking. It’s important to understand why California passed this legislation in the first place. Victims of bias crimes tend to take twice as long to recover on an emotional level, because it’s a very personal attack upon them -- be it because of their skin color, sexual orientation, or religion. These crimes are message crimes, not just to that one victim. We really have an entire community that’s victimized when one person of a certain group is targeted because of who they are.
I analogize hate crime enhancements to the fact that we have additional penalties when someone is seriously injured [in an assault.] We call it serious bodily injury and you can get up to three more years prison time. In the case of a hate crime, it may be even more significant for the victim because the physical wound may heal, but the mental injury takes a lot longer to recover from, and sometimes victims of hate crimes never do recover.
NIOT.org: Do hate crime enhancements, whether they involve extra prison time or a fine, make a difference?
Oscar Garcia: I think they do make a difference, even if ultimately we don’t get a judge to give that extra penalty. Every opportunity we have when a hate crime occurs, I want to get the message out to would-be hate crime offenders that we’re going to fervently prosecute these cases, that we treat them differently and that they are looking at a more severe penalty -- sometimes up to double the penalty if it’s a group attack. The hardcore white supremacists are probably going to continue to commit these crimes of opportunity. But for those who are maybe on the fence, who are the wannabes, and especially the juvenile offenders, hopefully we can reach them.
NIOT.org: Are there situations in which bias is clearly involved, but the law doesn’t allow your office to act?
Oscar Garcia: We live in a country where we value the first amendment, so when someone says a slur, that doesn’t mean it’s a hate crime, and we do not file hate crime charges every time somebody says a slur. (Though I will also point out that the first amendment was never intended to protect hateful speech.) Even if it’s a fight and someone yells a slur, that alone may very well not result in hate crime charges. It is something we’ll look at, and it’s a red flag, depending on the totality of the circumstances. Sometimes the absence of a motive is enough and we’ll base hate crime charges on the fact that there isn’t any other reasonable explanation why an attack happened. We had one case where a perpetrator took off his tank top, displayed a swastika [tattoo], and no words were said before he sucker punched an African-American male in a bar. The victim hit his head on the concrete and was brain damaged for life. We filed hate crime charges after looking at the evidence, including white supremacist paraphernalia we found at his house. So we have to look at the totality of the circumstances.
Still, we do encourage people to report slurs and encourage the police to take reports, because we see some people who feel empowered that they can’t get arrested just for saying a slur. And then it leads to vandalism or violence.
NIOT.org: Describe some of the challenges you face in your work prosecuting hate crimes.
Oscar Garcia: Most experts agree there’s a lot of underreporting of hate crimes both in California, as well as nationally. From the victim’s perspective, sometimes they may be very fearful because of retaliation. So one of the challenges is trying to get the victims to cooperate. Another is identifying the perpetrators because attacks are often committed by groups and occur at night, and victims often have a difficult time identifying the perpetrators. So for every reported incident in which we’re able to identify a suspect, we have at least maybe 10 times as many where the victims are unable to identify their attacker. And unfortunately in these instances, the case goes unsolved. The apprehension rate of perpetrators for my own local county averages out to about 10 – 15 percent. In comparison, for other crimes, perpetrators are typically apprehended in at least 50 percent of cases. Then, even when we are able to identify perpetrators, it’s challenging to try these cases in front of twelve jurors, members of the community, to get them to understand why these cases are so important to prosecute and treat differently. It’s the only time where the prosecution is required to prove motive for the crime. Every other crime, including murder, the prosecutor is not required to prove motive.
NIOT.org: What role can law enforcement play in helping victims feel less frightened and more supported?
Here in San Diego we have mandatory education for police officers. I teach, with a police detective specializing in hate crimes and a representative from the Anti-Defamation League, new recruits at the police academy. We try to educate them about what hate crimes are about, how they can better investigate them and the ramifications to the entire community. We talk about how these crimes deteriorate an entire community and why there may be additional penalties for these crimes. We’re also trying to make it so that recruits are also tested on this, as they are required to do in many other classes at academy.
I think across the nation we should make bias crime training and testing mandatory of police officers. It’s important that officers are sensitive to what hate crime victims experience and why a victim may not want to cooperate with the police. Maybe a victim comes from a country where they don’t trust the police. Or here in our country, in the South in the 1960s, we had groups like the Ku Klux Klan infiltrating police forces, and older generations remember this history. So there’s still a lot of distrust towards the police that we need to overcome.
In other cases, sometimes the victims don’t think to highlight to the police when they’re interviewed, “oh, yeah, by the way they yelled out these slurs to me.” They may not see the significance of it until we question why did this happen or see some red flags, and then we go out and re-interview the witnesses. So a lot of it is education – education of our police, but also the greater community.
As part of what I do here, I also chair the San Diego Regional Hate Crimes Coalition, which brings together law enforcement agencies in San Diego County with community- based organizations to educate and respond to hate crimes. We also run separate intelligence committee meetings bi-monthly for just law enforcement, where we talk about ongoing cases and strategize and look at trends.
In addition, we hold trainings and also organize a yearly contest called Unity in Action at the local schools, rewarding students for their efforts emulating anti bias and tolerance. We want to highlight when youth are doing something very positive to try to combat hate crimes. One year we tied the contest in with an annual video contest organized by the San Diego County Office of Education. We helped get a new competition category created for videos promoting the message of tolerance and anti-bias, and the winner of it that year won one of the highest awards for the entire program.
NIOT.org: With San Diego so close to the U.S.-Mexico border, have you seen a rise in anti-immigrant organizing and hate crimes against Latino immigrants?
Oscar Garcia: We’ve had problems with the San Diego Minutemen, which has been identified by the Southern Poverty Law Center as a nativist group with confrontational tactics. These types of groups have spread out throughout the nation especially along the border cities, but we seem to have some of the most active groups coming out here trying to act like vigilantes. They claim they’re doing it merely to exercise their political first amendment rights of wanting those that are here illegally out of the country. But organizations like Southern Poverty Law Center have documented some very hardcore white supremacist group members infiltrating the San Diego Minutemen in the past. And this group does cause a lot of problems here with law enforcement, which have to monitor their demonstrations at day labor sites. The Minutemen are out there sometimes intimidating both the persons trying to get work and those hiring laborers.
We’ve [prosecuted] some hate crimes targeting Latino immigrants. But unfortunately we’ve had more cases where we’ve had unidentified perpetrators. As is consistent with a lot of these cases, identification of the perpetrator can be a big issue.
NIOT.org: What drew you to do this work?
Oscar Garcia: What drew me to prosecution in the first place was I had a family member, my father, who was brutally murdered when I was child. That drew me to prosecution and police work, and to work towards helping crime victims, especially victims of violent crimes.
I’ve been a prosecutor for about twenty-four years now, and worked gang cases for a number of years. This current position prosecuting hate crimes is a very close cousin to the gang cases I would prosecute. Not always, but oftentimes the attacks in hate crimes are committed by groups. And unfortunately some of those groups are taking on a lot more behaviors of the traditional gangs and that’s a concern to us -- that they are becoming more organized. So much so we’re starting to look at prosecuting more of these cases also under the gang statutes, which carries even more significant penalties.
The mental trauma, in addition to the physical trauma, that victims of hate crimes and their families are left to endure, and the fact that these victims can be anybody, also draws me to work hate crime cases. In other crimes, a lot of times you see victims think back to the trauma, for example being robbed at an ATM, and they tell themselves, “I won’t go to that ATM late at night anymore.” But victims of hate crimes don’t do anything to make themselves more vulnerable, and we see these attacks even happen in broad daylight or in a public setting. It’s just they unfortunately crossed paths with someone who’s prone to commit these crimes.