Prosecuting Hate Crimes Is Hard. Here’s Why

Prosecutors have to prove the shooting in Charleston, South Carolina, was directly motivated by bias.
Visitors observe a makeshift memorial near the Emanuel AME Church in Charleston, South Carolina. (Photo: Brendan Smialowski/Getty Images)
Jun 18, 2015· 2 MIN READ
Rebecca McCray is a staff writer covering social justice. She is based in New York.

Wednesday’s fatal shooting of nine people at a historic black church in South Carolina is being investigated as a hate crime by federal and local authorities. The alleged shooter, Dylann Roof, a 21-year-old white man with an apparent affection for apartheid-era South Africa and Rhodesia, was arrested Thursday morning and is in custody in Shelby, North Carolina.

Now prosecutors face a difficult challenge: proving the shootings were driven by hate. Prosecutors must show concrete evidence that a suspect’s crime was directly motivated by bias against a group of people their victim—or in this case, victims—belong to. “If he’s a member of a group that hates black people or he’s found with literature espousing the hatred of blacks, those would be ways to prove bias,” Kami Chavis Simmons, a former federal prosecutor, a law professor, and director of Wake Forest University’s criminal justice program, told TakePart. Evidence could also include racially charged language or statements made by the suspect, but “in terms of proving under the law whether it’s a hate crime, it can be a difficult burden,” Simmons said.

In 2013, two black teenagers were accused of shooting a white Australian college student in Oklahoma. Despite derogatory tweets about white people posted by one of the alleged shooters, prosecutors in the case did not have enough evidence to pursue hate crime charges. Another example of that strict standard of proof was seen in the federal government’s February announcement that it could not file hate crime charges in the fatal 2012 shooting of black teenager Trayvon Martin by George Zimmerman. Many Americans argued the shooting was motivated by racial bias. But legally proving that was impossible—as was prosecuting Zimmerman at all.

In the case of Roof, there’s mounting evidence that his actions in Charleston this week were motivated by racial bias. A survivor of the church shooting who identified herself as the pastor’s cousin told reporters that while reloading his gun, Roof told a black congregant who tried to discourage him from shooting, “You rape our women, and you’re taking over our country, and you have to go.” An image of Roof on social media shows the young man wearing a jacket with two flag badges: one of Rhodesia and one of apartheid-era South Africa. Both are affiliated with violent legacies of black oppression. Roof’s father reportedly gave him a pistol this year for his 21st birthday.

“Communities like this have had to endure tragedies like this too many times,” President Obama said on Thursday. “We don’t have all the facts, but we do know that, once again, innocent people were killed in part because someone who wanted to inflict harm had no trouble getting their hands on a gun.”

It’s worth noting that South Carolina is one of just five states that do not have hate crime laws. So the idea of racial bias is legally irrelevant, at the state level—never mind that the Charleston police chief, Greg Mullin, swiftly called Wednesday’s incident a hate crime. The federal government is the only entity that can formally prosecute the shooting as a hate crime. “If this man purposefully and knowingly shot nine people, you would prove that he did it and did it purposefully and could add a successful conviction for murder,” Simmons told TakePart. That could lead to a death sentence in South Carolina, which still has the death penalty.

But while a hate crime classification can’t add penalties to Roof’s potential punishment, it is a powerful statement that the origins of this crime will not go unnoted. “It’s symbolic to say that our state condemns this type of violence when it’s motivated by bias, to say this bias is antithetical to our national values,” Simmons said.