JENA CASE SHOWS DIFFICULTY IN PROSECUTING HATE CRIMES

by Earl Ofari Hutchinson

(PNS) -- The Reverend Al Sharpton lambasted him. House Judiciary Committee Chair, Michigan Democrat John Conyers, grilled him intently during his appearance before his committee. Legions of Jena Six backers were livid at him. Donald Washington, the U.S. attorney for the Western District of Louisiana, took heat from all of them because he refused to bring federal civil rights charges against the culprits that hung the rope on the schoolyard tree at a Jena, La., high school.

That schoolyard noose triggered the tragic and tumultuous events that led to the assault on a white student, heavy-duty felony counts on six black students for the attack, a firestorm of outrage and a national debate over racial double standards in the criminal justice system.

The beleaguered Washington called the hanging noose a powerful symbol of hate and racially motivated violence and said it could, in many circumstances, be a cause for prosecution. But he didn't bring charges, he said, because the suspects were juveniles. Even if the perpetrators had been adults he still might have begged off bringing charges. It had nothing to do with government recalcitrance, indifference, buck passing or a racial cover-up, as civil rights leaders charged. It had everything to do with painful decisions about when and how hate crimes can be prosecuted, and even what really constitutes a hate crime.

The prosecution of hate crimes is a muddled, hazy area clouded by both narrow federal legal statutes, and worse, politics. In the case of the Jena schoolyard hanging noose, there was no specific victim or target of the racial animus. That's the absolute minimum requirement for considering what is, and what can be prosecuted, as a hate crime. If the unknown suspects had harangued an individual with racial epithets and then threatened to stick his head in the noose, that would fit the legal requirement. That didn't happen. Even pillorying someone with racial epithets while committing a physical assault against them might not pass the legal muster of what is a hate crime.

The crucial element is whether the racial epithets shouted at the victim were incidental, or the precipitating factor in the attack. It's the finest legal hair-splitting. Ultimately, that's what prosecutors rightly or wrongly look at in deciding whether they have any chance to get convictions in crimes where race is involved.

Then, there's the even more muddled picture of how much actual hate violence there really is in America. Sharpton, Martin Luther King III and other civil rights leaders say that hate violence in America is raging, and demand that police and prosecutors crack down hard on the supposed vast wave of violence-prone hate mongers. They will make that demand at a march against hate crimes in Washington, D.C., November 16.

The Jena case, the rape of Mega Williams in West Virginia and a spate of hanging noose sightings seem to warrant pushing the panic button. But the figures on hate violence don't warrant it. According to the latest FBI Hate Crime Report, the number of hate crimes committed in the U.S. in 2005 fell 6 percent compared to 2004, and there was no surge in the number Ð or percentage Ð of racially motivated hate crimes. In most states, hate crimes have dropped to record low levels. In California, the number of hate crimes has dropped by more than half from 1996 to 2002. That continues a two decade-long trend in the plummet of hate crimes nationally.

That doesn't mean all is well. Civil rights leaders pound the Bush administration for not pushing and prodding the Justice Department to radically increase the number of hate crime prosecutions. And they should. Justice Department figures show a 60 percent plunge in hate crime investigation referrals. But Bush is hardly the only president who didn't make hate crime prosecutions a priority. The White House foot-dragging on hate crimes has nothing to do with racial double standards and everything to do with politics and practicality.

Federal prosecutors don't really want to bring criminal civil rights cases before the court. They see them as no-win cases with little political gain, as well as risking 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 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, those have been almost exclusively in state courts. The only exceptions to the hard nosed 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.

That's what happened in the Jena case. Yet, even that wasn't enough to warrant a prosecution. When prosecutors in Jena or elsewhere try to sort out whether a crime is a hate-motivated, plain crime or no crime at all, the muddle over hate becomes even more muddled.