Robert Bowers, the Pennsylvania man accused of carrying out a mass killing at a Pittsburgh synagogue on Saturday, has been charged with multiple counts of hate crimes and other criminal offenses under state and federal laws.
Among the 28 counts of federal crimes Bowers faces are 15 brought under a federal hate crimes statute that allows for the death penalty. The 35 state criminal charges against him include 13 counts of "ethnic intimidation" brought under the state's hate crime law.
Hate crime laws are essentially "penalty enhancement" tools in the hands of prosecutors. The statutes allow state and federal prosecutors to charge a defendant with an added penalty and to seek harsher sentences. For example, the crime of simple assault, typically a misdemeanor punishable by up to one year, can be prosecuted as a felony punishable by a longer prison sentence under a hate crime law.
Brian Levin, director of the Center for the Study of Hate and Extremism at California State University at San Bernardino, said that federal prosecutors generally let local prosecutors handle hate crime cases.
"But [in] the very high-profile cases where they believe there is a national interest in prosecuting the case, federal prosecutors will invoke federal law irrespective of what the state prosecutors do," Levin said.
Among the high-profile hate crime cases of recent years, federal prosecutors charged Dylann Roof with 33 counts of hate crimes, obstruction of religious exercise, and firearms charges in connection with the killing of African-American worshippers at a Charleston, South Carolina, church in 2015. Roof was later convicted and sentenced to death.
What is a hate crime?
The FBI says a hate crime is "a traditional offense like murder, arson or vandalism with an added element of bias." The bureau, which investigates and collects data on hate crime, defines it as "a criminal offense against a person or property motivated in whole or in part by an offender's bias against a race, religion, disability, sexual orientation, ethnicity, gender or gender identity."
Hate speech, on the other hand, is not a crime in the United States. In contrast to Canada and the European Union, hate speech is protected under the First Amendment of the U.S. Constitution.
Federal hate crime laws
Federal hate crime laws date back to the 1960s civil rights era.
In 1968, four years after the murder of three civil rights workers, Congress enacted the first hate crimes statute, making it a crime for anyone to use force or to threaten to use force "to willfully interfere with any person because of race, color, religion or national origin" and because the person is engaged in a federally protected activity such as public education.
In 1996, in the wake of a spate of attacks on churches, Congress passed the Church Arson Prevention Act, which makes it a crime to deface, damage or destroy any religious property. The law also prohibits the intentional obstruction "by force or threat of force, [of] any person in the enjoyment of that person's free exercise of religious beliefs or attempts to do so."
Roof was charged under this statute. Bowers faces 11 counts of "obstruction of exercise of religious belief resulting in death" and four counts of "obstruction of exercise of religious belief resulting in bodily injury to a public safety officer."
The most comprehensive federal protection against hate crimes was enacted in 2009 when former President Barack Obama signed the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act.
Named for two hate crime victims, the law expanded the definition of a hate crime, adding new protections against crimes based on gender, gender identity, sexual orientation and disability.
The Justice Department said it has charged more than 300 defendants with federal hate crimes over the past 10 years, including over 50 defendants in 2017 and 2018.
State hate crime laws
The vast majority of hate crimes in the United States are prosecuted in state courts. At the moment, 45 states and the District of Columbia have some form of hate crime laws on their books. Many states only recognize race, color, religion or national origin as a motivating factor in a hate crime. Pennsylvania is one of them.
Levin said the state's law is "on the weaker side because it excludes so many of the groups that are covered by neighboring states like New Jersey and New York, as well as the federal law."
Five states — Arkansas, Indiana, Georgia, South Carolina, and Wyoming — currently don't have hate crime laws, but advocates are pressing lawmakers in those states to pass anti-hate crime legislation.