Preventing Hate Crimes

By Shayna Frieden.

Beginning around 5 p.m. on Tuesday, March 16, a shooter killed eight people at three different spas in and around Atlanta, Georgia. Six of the victims were Asian women. Although authorities have not yet confirmed a motive, these fatal shootings come amidst a year of increasing anti-Asian discrimination and violence. Nearly 3,800 hate incidents have been reported since March of 2020, and more than double of the attacks were against women. Forty-three incidents of anti-Asian discrimination have also been reported in Arizona since March of 2020.

The existence of hate crimes is unfortunately not new in our society. In Arizona in 2019, crimes motivated by race and ethnicity accounted for nearly 66% of the reported incidents (143 out of 217), which was the highest percentage of the decade. Advocates believe the number for 2020 will surge as a result of the Black Lives Matter protests and COVID-19 pandemic. The recent tragedy in Atlanta has brought greater attention to the issue of hate crimes and the need to address it. The likelihood that the discriminatory rhetoric by former President Trump regarding the spread of COVID-19 has contributed to the increase in anti-Asian attacks suggests that redress and prevention require more than federal and state legislation.

Hate Crime Legislation

According to the U.S. Department of Justice, “hate” in terms of a hate crime means “bias against people or groups with specific characteristics that are defined by law.” Hate crime laws thus prohibit crimes—often violent, such as assault, murder, vandalism, or threats to commit such crimes—“committed on the basis of the victim’s perceived or actual race, color, religion, national origin, sexual orientation, gender, gender identity, or disability.” Hate crimes have been federally prosecuted since the enactment of the Civil Rights Act of 1968. In 2009, Congress passed the Shepard Byrd Act, making “it a federal crime to willfully cause bodily injury, or attempt to do so using a dangerous weapon, because of the victim’s actual or perceived race, color, religion, or national origin.” It was also the first statute authorizing federal criminal prosecution of hate crimes motivated by the victim’s sexual orientation or gender identity.

State laws vary widely in their hate crime data collection requirements and the type of bias-motivated conduct they criminalize. For example, eighteen states with hate crimes laws do not require data collection. And whereas Arizona criminalizes offenses motivated by race, religion, sexual orientation, disability, and gender, Wyoming is one of three states without a single hate crime law. In 2020, after the killing of an African American man who was out jogging, Georgia actually became the most recent state to pass a hate crime law. The statute allows judges to increase the punishment for a defendant who targeted “victims based on perceived race, color, religion, national origin, sex, sexual orientation, gender, mental disability or physical disability.” The scope of conduct this law reaches will be revealed in how the 21-year-old Atlanta shooter is prosecuted.

Moreover, the prosecution of bias-motivated incidents is constitutionally limited by the First Amendment. One cannot be prosecuted based solely on their beliefs or for expressing them, no matter how false or offensive. The Anti-Defamation League has said that courts will likely continue to distinguish between constitutionally protected hate speech and unlawful hate crimes. Incidents reflecting expressions of hate, such as the burning of a cross, can be subject to criminal penalty only if the prosecution can “prove that the perpetrator engaged in that activity with an intent to threaten or intimidate.” It is precisely the expression of hate, however, that may be significantly contributing to the acts of violence against Asian Americans.

Prevention and Restoration

Critical to addressing the increase in anti-Asian violence is to consider the role of former President Trump’s derogatory references to the coronavirus as “the Chinese virus” and “kung flu.” During President Biden’s first televised address to the country a couple weeks ago, he recognized that since the pandemic began, Asian Americans “had been ‘attacked, harassed, blamed and scapegoated’ after the virus, first observed in Wuhan, China, spread across the Pacific.” Stopping the existence of hate crimes may therefore have more to do with vocal denunciation of discrimination and community outreach programs than strictly punishing the offenses.

In January, President Biden signed a memorandum condemning the rising Asian American and Pacific Islander (AAPI) discrimination and issuing guidance on how the Justice Department should respond. It not only addresses hate crimes, but also hate incidents. Hate incidents are acts of prejudice that do not involve violence or property damage, which would fall into the category of a crime. Russell Jeung, a professor of Asian American studies at San Francisco State University and the founder of the Stop AAPI Hate forum, said this will allow “for a more holistic approach to combating racism against Asian Americans in public streets, transit, private businesses and other settings.” Jeung further advocates for more education and restorative justice models.

Increasing the reporting for hate crimes can make a substantial difference, as well. The Department of Justice emphasizes that it would have a three-fold benefit of supporting victims, sending a clear message that these crimes will not be tolerated, and allowing both “communities and law enforcement to fully understand the scope of the problem in a community and put resources toward preventing and addressing attacks based on bias and hate.” Communities who have suffered from discrimination and bias-motivated incidents are also more likely to report if they believe that law enforcement can and will respond.

Conclusion

In sum, there should be no tolerating hate crimes and incidents of hate. Ending such discriminatory conduct and protecting communities who have suffered will likely require a combined effort from federal and local governments. Legislation should be implemented and enforced, and officials should speak up against hateful acts and utilize preventative resources. In calling for better leadership, Vincente Reid, the CEO of the Arizona Asian Chamber of Commerce, recently expressed, “Words matter. . . . Unfortunately, we have plenty of local leaders who allow such heinous acts to continue through either inaction, silence, or just blatant disregard for their constituents.”

"White House" by Diego Cambiaso is licensed under CC BY-SA 2.0

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By Shayna Frieden

J.D. Candidate 2022

Shayna Frieden is a 2L Staff Writer from San Jose, California. She earned degrees in Political Science and Economics from the University of California, Davis, and now could not be happier that she is able to spend every day in the warm, Arizona sunshine. Shayna has been a lifelong fan of Survivor and dreams of the chance to outwit, outplay, and outlast the other competitors!

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.