The Reverend Emanuel Heyliger, pastor of the Ferguson Memorial Baptist Church in Dunbar, West Virginia was livid when he got word that federal prosecutors won't prosecute the attack on Megan Williams as a hate crime. It seemed that if ever there was a case that screamed for the feds to jump in and charge somebody with a hate crime, this it. The heinous facts seemed beyond dispute. Six White men and women allegedly kidnapped, tortured, raped and harangued a young Black women with racial epithets.
But Heyliger in his understandable anger missed one thing. The feds will do anything and everything possible to stay out of state criminal cases, especially cases that are racially tinged. There are two reasons for their keeping hands off. Federal prosecutors are loath to step on the toes of police and prosecutors in criminal cases, no matter how badly the crime is tainted by race. Here the prosecutors flatly said that William's assailants are more likely to be convicted and get stiffer sentences in state court. That makes perfectly good legal and political sense.
The other reason behind their non-involvement is much more troubling. Federal prosecutors have rarely placed much stock on bringing criminal civil rights cases. They see them as no-win cases with little political gain, and the risk of making enemies of local police, DAs, and state officials. The rare time that the feds cracked down on civil rights violence was during the 1960s civil rights battles. The wave of violence then stirred national and international revulsion and forced then President Lyndon Johnson to order more civil rights prosecutions.
Though federal prosecutors in recent times have had more than sufficient legal ground to bring cases in the old race murders from the 1960s, the prosecutions have been almost exclusively in state courts. The only exceptions to the set in stone rule that prosecutors stay out of state cases occurs when a hate crime triggers a major riot, generates mass protests or attracts major press attention. The Rodney King beating case in Los Angles in 1992 is still the best example of how it took a mass civil upheaval to move the feds to go full blast after a conviction of the police that beat King. And then it was only after a failed prosecution in state court. The King case is also an example of how criminal cases with clear civil rights abuses become highly politicized and racially divisive.
The Williams case is a near textbook example of how prosecutors deal with these crimes. They may be horrific, but they are seen as common crimes and treated as such. Few state prosecutor will chance inflaming racial passions and hatreds by slapping a hate crime tag on a case.
There's also the belief that hate crimes are mostly a thing of the past. When they do occur, they are isolated acts committed by a handful of quacks, and unreconstructed bigots, and that state authorities vigorously report and prosecute the perpetrators of these crimes.
When Congress passed the Hate Crimes Statistics Act of 1990, it compelled the FBI to collect figures on hate violence. However, it did not compel police agencies to report them. Record keeping on hate crimes is still left up to the discretion of local police chiefs and city officials. Many police departments still refuse to report hate crimes, or to label crimes in which gays, and minorities are targeted because of race or sexual preference as hate crimes. Still other police departments don't bother compiling them because they regard hate crimes as a politically loaded minefield that can tarnish their image and create even more racial friction. This official indifference by many police agencies makes it impossible for federal officials to enforce civil rights laws or even gauge the magnitude of civil rights violence.
The picture is even more blurred by confusion and uncertainty over what makes a crime a hate crime. Simply pillorying someone with racial epithets while committing a physical assault may not pass the legal muster of what is a hate crime. The crucial element is whether the racial epithets shouted out were incidental to the attack or were they the precipitating factor in the attack? It's the finest of fine legal hair splitting. But ultimately that's what prosecutors look at in deciding whether they have any chance to get convictions.
The Black ministers in West Virginia are dumbfounded at the apparent refusal of federal prosecutors to recognize what they see as a cut and dried case of White bigots brutalizing an innocent young Black woman. That's probably exactly what happened. Yet when prosecutors try to sort out whether a crime is a hate motivated crime or just plain crime it's anything but cut and dried.
Earl Ofari Hutchinson is an author and political analyst.