On June 13, 2009, 15-year-old African American Walter Currie Jr. [1] was set on fire by a white schoolmate. 

 

Was this a hate crime?  That's a question that is unlikely to be answered inside the criminal justice system or in the annual hate crime report by the FBI. The case, which goes to trial December 7, 2009  in Missouri, is not being prosecuted as a hate crime.  In their initial report, local police did not state that racial bias might have been a motivation for the attack; and the resultant investigation did not explore it as a hate crime. Because of that, the attack will probably not appear on next year's FBI list of hate crimes in the United States.

 

That's because of the way hate crimes are reported to the nation's highest crime-investigating body.

 

“2008 Hate Crime Statistics,” released Nov. 23,2009 by the FBI and Department of Justice,  reports 7,783 hate crime incidents nationwide. It is the main resource for data on hate crimes committed the previous calendar year. But the report draws only upon information collected by local agencies and forwarded to the FBI. If local agencies don’t do that work—and many do not—the FBI has no record of the crimes. It’s as if they never existed. The real number of hate motivated crimes is much higher, according to a special study by the Department of Justice. That report by the Bureau of Justice Statistics estimates that an average of 210,000 people per year [2] are victims of hate crimes.

 

Hate crime experts cite a variety of reasons for the hate crimes reporting gap.

 

“A lot of police departments don’t want to deal with it,” says Paul Sheridan, West Virginia’s deputy attorney general for civil rights. “The vast majority of under-reporting happens because of departments that don’t want the paperwork.”

 

California, with a population of 36.7 million, reported 1,381 hate crimes in 2008. Florida, with 18.2 million people, reported 153—a state with half the people allegedly suffered one-tenth the number of hate crimes.

 

New Hampshire and New Mexico both have about a million and a half residents, but New Hampshire reported 44 hate crimes in 2008, versus just nine in New Mexico. Are people in New Hampshire particularly violent? More likely, experts point out, the discrepancy is because just four of New Mexico’s 49 participating agencies submitted hate crime data to the FBI.

 

“The FBI gives us an incomplete picture at best,” wrote CSU-Stanislaus Criminal Justice Professor Phyllis Gerstenfeld [3]in Jurist, an online legal blog. “Even among the agencies that do report hate crimes, the accuracy and completeness of the reporting differs a great deal.”

 

It’s up to the investigating police officer to determine whether a crime involves bias motivation, a requirement for it to be considered a hate crime. If the police report doesn’t include that, the incident does not show up in the Uniform Crime Report as a hate crime, even if it is later prosecuted as such.

 

Some local agencies are more diligent than others in fighting hate crime. " I'm proud that in Santa Clara County, all of us--police, prosecutors, civil rights organizations, schools, community groups--are 100% committed to the reporting, investigation, and prosecution of hate crimes," says Jay Boyarsky, deputy district attorney on special assignment to hate crimes in Santa Clara County, Calif., where five hate crimes show up on the 2008 FBI report. "Hate crimes have always struck me as among the most Un-American of crimes."

 

Law enforcement in Southern Missouri did not ignore the seriousness of the attack against Walter Currie, but they said hate crime charges seemed like a moot point under Missouri law. Walter Currie’s assailant has been charged with felony assault and armed criminal action. Police in Poplar Bluff told Not In Our Town that under Missouri law, the young man, who is being charged as an adult, faces greater penalties from the felony charges, so there was no reason to investigate the possible hate motivation of the crime.  The Poplar Bluff police diligently sent their original police report to the FBI in Southern Missouri, who told Deputy Chief Jeff Roland that there was no indication in the report that merited the FBI investigating the case as a hate crime.

 

 

 

Prosecutors go for charges they feel they can prove, as well as those carrying the severest penalties, Sheridan points out. In many cases, adding a hate crime to the charges will not increase the penalty, and in fact complicate the prosecutor’s job by forcing him or her to prove motivation. Some states’ hate crime law is so narrowly written that a given incident doesn’t fall within its purview. Prosecutors want convictions, not good public relations.

 

The Megan Williams case is a prime example. In 2007, this African American woman in West Virginia was kidnapped, raped and tortured by six white residents of Logan County. The initial police report did not include bias motivation . The authorities told reporters they wanted to focus on the charges with the toughest penalties, noting that the maximum sentence for a hate crime in the state was 10 years. All six assailants were convicted of the attack and are serving prison time; one assailant confessed to a hate crime. Even though this one case was prosecuted as a hate crime, the Megan Williams attack does not appear in the FBI's hate crime roster for 2007 because it was never reported as such by the local police.

 

"There was community demand to prosecute them for a hate crime, because it was a heinous crime and there is a public sense that if a crime is horrendous, it should be a hate crime," Sheridan says. "But 'hate crime' is a very technical term. Sexual assault is easier to prove. You don't have to prove 'state of mind.'"

 

But the social fallout when such cases are not investigated or prosecuted as hate crimes can be tremendous. When a person is attacked or killed for reasons that include gender, sexual orinetation, race, religious or ethnic bias—however hate crimes are defined in that locale—people want their pain acknowledged. Naming the violence a hate crime brings that acknowledgement, and can set a community on a path toward healing. Ignoring it brings further pain, increases anger, and deepens social divisions.

 

What are the  hate crime statutes in your state? When a person or institution is attacked, and the motivation is at least partly based on bias, does it matter whether the case is prosecuted as a hate crime, so long as the perpetrator is punished?