It appears that the federal government is currently investigating the murders that occurred recently in Buffalo, New York as a federal hate crime. But what is a federal hate crime? What does the government have to prove to convict someone of that charge? And how is it different from murder or other state crimes?
Well, the federal government does have a criminal statute that punishes someone who commits a crime, who causes bodily injury or threatens someone because of the other person’s race, color, national origin or religion. That is a hate crime. The key factor, what makes it a hate crime, is that the criminal act, the violent act is being committed because the person committing the act is trying to injure the other person because of their race, because of their color, because of their national origin or religion. The crime is motivated by racial animus or one of those other protected categories. It is motivated by hate.
Now, what does the government have to prove? Well, the first thing the government has to prove is that someone committed the bodily injury. There was actually a physical act, a violent act that injured someone or the person committed the crime using a firearm or some other deadly weapon and was threatening people. That’s the first thing.
The second thing is all of this has to occur because of the victim’s color, race, national origin or religion. So, it’s not just the criminal act, it’s not just the act of violence, but it’s the reason why that act occurred. It’s the motivation of the person who is committing the violent act.
So, how does the government prove that? Well, it is rare for a person who is committing a hate crime to say, “I’m committing this crime because I hate these people,” although that does sometimes happen. In some cases, and this Buffalo case may be an example, the person who commits the crime actually leaves evidence that the crime was motivated by racial hatred. Apparently, there may have been a manifesto published by this particular person who basically said, “I’m a White supremacist and this is the kind of conduct that I believe needs to happen.” Well, that’s a clear case. That’s much easier for the government than a case where the person committing the crime doesn’t make it so clear. In those cases, you have to look to circumstantial evidence, social media posts, what that individual has done in the past, things they may have said to friends or neighbors.
We can think about the Ahmaud Arbery case in Georgia recently that was prosecuted as a federal hate crime violation and the government, in that case, could not show that they were targeting Ahmaud Arbery specifically because of his race, because they said that. But the government was able to convict those defendants because they looked to the circumstantial evidence. What have these people said about Black people in the past? Have they said anything that would indicate racial hatred or racial prejudice that would be enough to show they were committing this crime because of that hatred or prejudice?
So, remember, it’s not just to prove someone is a racist and then they commit a crime. You have to show that the crime was motivated by the racism.
If someone is convicted of that offence in federal court, and the injury is not life threatening, then they’re looking at up to 10 years in prison. If death occurs or an attempted murder, then they can serve all the way up to life in prison. These prosecutions are carried out in federal court and the feds don’t have to turn the case down if the state decides to prosecute it too. So, you can see a person tried both in state court and in federal court both for the murders, the underlying crime, as well as for a hate crime on federal and state grounds.
At this point, it’s too early to know if the case in Buffalo is going to be indicted as a hate crime. But based on the evidence that’s been reported so far, I do think that’s going to be a clear case for the government and I expect we will see an indictment soon.