Why the Buffalo Gunman Faces Both State and Federal Hate Crime Charges
On May 14, an avowed white supremacist fatally shot ten Black people and wounded three others at a Buffalo, New York supermarket. The State of New York has since charged the gunman with not only first- and second-degree murder but also domestic terrorism and hate crimes. At the same time, the U.S. Department of Justice has charged the shooter with thirteen counts of federal hate crimes. But is the federal prosecution redundant?
The answer to that question carries implications for both federalism and hate crime enforcement. In some instances, major hate crimes are prosecuted in both state and federal courts. And because states and the federal government are separate sovereigns, the Supreme Court has long held that there are no double jeopardy concerns when a person is convicted under both federal and state laws for the same conduct. That said, state prosecutions that coincide with federal hate crime prosecutions often do not involve a hate crime charge.
Sometimes, that is because state hate crime charges are unavailable. Such was the case in South Carolina after a white nationalist gunman entered a historic Black church in Charleston and killed nine worshippers on June 17, 2015. Because South Carolina did not have a hate crime statute, only the federal government could charge the gunman with hate crimes. And it did. Federal prosecutors brought twenty-four counts across two hate crime statutes, plus nine counts of using a firearm to commit murder, while the state prosecuted the gunman for murder, attempted murder, and firearms offenses.
But what happens when federal hate crime prosecutions occur in states with applicable hate crime statutes?
On the one hand, the state could bring hate crime charges. Consider Pennsylvania. After a white man who believed in anti-Semitic, anti-immigrant conspiracy theories fatally shot eleven people and wounded six at a Pittsburgh synagogue on October 27, 2018, he was charged with federal and state hate crimes. In addition to facing a sixty-three count federal indictment on hate crime and firearms violations, the gunman has been charged in state court for criminal homicide, aggravated assault, and “ethnic intimidation,” which is the name for Pennsylvania’s hate crime offense. He still awaits trial in federal court. Similarly, in California, both state and federal prosecutors successfully brought hate crime charges against a white gunman who killed one person and wounded three others at a synagogue in Poway, outside of San Diego, on April 27, 2019.
On the other hand, the case might not be tried as a hate crime in state court. For example, after a white gunman attempted to enter a predominantly Black church before killing two Black shoppers at a Jeffersontown, Kentucky grocery store on October 24, 2018, he was sentenced on federal hate crime charges. He was also convicted in state court for murder, attempted murder, and first-degree wanton endangerment, which is eligible for a hate crime sentence enhancement when based on race, though it is not clear whether the sentencing judge applied the enhancement.
Similarly, a white gunman used racial slurs before killing an Indian national and wounding two others at an Olathe, Kansas bar on February 22, 2017; he pleaded guilty to federal hate crime charges and state charges for murder and attempted murder.
To be sure, these discrepancies might come down to the vagaries of criminal procedure, coordination between state and federal officials, and slight variations in the function of state hate crime statutes. According to the legal scholar Avlana Eisenberg, state prosecutors might have institutional incentives not to pursue hate crime charges even in “archetypal” cases; knowledge of a pending federal hate crime prosecution might provide yet another deterrent. And aside from the varied coverage of state hate crime statutes, some statutes create standalone crimes while others authorize sentence enhancements for underlying criminal offenses. But the above examples nevertheless pose broader questions about the purpose of federal hate crime enforcement.
Some of these questions about federal hate crime enforcement come up in the context of federalism. It is a feature of federalism that the general powers of criminal law enforcement are reserved to the states, which means those of the federal government are limited. As the Supreme Court has explained, Congress “may enact only those criminal laws that are connected to one of its constitutionally enumerated powers, such as the authority to regulate interstate commerce.”
In the context of hate crime enforcement, this principle informs an important distinction between state and federal hate crime statutes. If an act of bias-motivated violence occurs within the boundaries of a particular state, that state has jurisdiction regardless of whether a state hate crime statute applies. Notwithstanding the expressive impact of a hate crime charge, the purpose of state hate crime enforcement is to increase the punishment for a certain class of crimes over which the state already has jurisdiction. Indeed, that could explain why some state hate crime statutes do not cover felonies, or why a hate crime enhancement might make less sense in the context of a fatal shooting, as in Kentucky and Kansas, where the defendant already faces massive penalties.
But federal hate crime enforcement serves a different purpose. Federal hate crime statutes do not increase the punishment of conduct already subject to federal jurisdiction, but rather establish federal jurisdiction over conduct that implicates an enumerated power. Returning to the fatal white supremacist violence in Buffalo, the federal government had two options for prosecuting the gunman with hate crimes.
First is 18 U.S.C. § 245(b)(2)(F), which makes it a federal crime to “willfully injure, intimidate, or interfere” with any person because of their race, color, religion, or national origin and their enjoyment of certain public accommodations. To be sure, there is a question whether a supermarket fits within the description of public accommodations provided in the statute, although the term is defined to include grocery stores in other federal statutes.
Second is 18 U.S.C. § 249(a)(1), which makes it a federal crime to “willfully cause bodily injury” to someone because of the actual or perceived race, color, religion, or national origin “of any person.” This is the statute the Department of Justice opted to use. In contrast to § 245(b)(2), this provision does not have a dual-intent requirement or similar jurisdictional element, which may have made it a more obvious choice for federal prosecutors.
The reason for this contrast sets up an important point. In 1968, when § 245 first became law, Congress grounded § 245(b)(2)(F) in the Commerce Clause. In other words, Congress asserted federal jurisdiction under its enumerated power to regulate interstate commerce, and then limited jurisdiction to certain acts of bias-motivated violence that implicated this power.
However, also in 1968, in Jones v. Alfred H. Mayer Co., the Supreme Court removed previous constraints on a different source of congressional power: Section 2 of the Thirteenth Amendment, which empowers Congress to enforce the abolition of slavery “by appropriate legislation.” To the extent that racial violence implicates the federal power to enforce abolition, Congress may criminalize such violence without relying on a separate enumerated power.
In Jones, the Court upheld a statute prohibiting racial discrimination in certain property transactions on the ground that Section 2 enabled Congress to both define and eradicate the “badges and incidents of slavery.” This, of course, would have implications for federal hate crime enforcement. After all, in the words of constitutional law scholar Jamal Greene, racial violence “is a ‘badge or incident of slavery’ if ever there was one.”
Congress agreed. Passed in 2009, § 249(a)(1) is explicitly grounded in Section 2 of the Thirteenth Amendment. And for what it is worth, courts have since upheld other federal hate crime statutes that cover racial violence, including § 245(b)(2), on Thirteenth Amendment grounds. As an aside, although both cover religion and national origin in addition to race and color, the Department of Justice restricts coverage under these provisions to violence based on religions or national origins that were considered to be races at the time of the Thirteenth Amendment’s passage.
But what does this mean for federal hate crime enforcement? One could argue that as states continue to expand their hate crime statutes—or when, as in Buffalo, an act of bias-motivated violence falls squarely within the proscriptions of a state hate crime statute—a federal hate crime prosecution would be redundant or excessive. In some respects, this is a libertarian argument about the federalization of crime and the unfairness of successive prosecutions.
But federal hate crime prosecutions also serve an expressive purpose. The principal justification for
§ 245(b)(2) was to assert federal jurisdiction over racial violence that states had failed to prosecute themselves. Nowadays, however, when lax state criminal enforcement against racial violence poses less of a problem, the question becomes whether a state prosecution of racial violence will include hate crime charges.
Therefore, the justification for federal hate crime enforcement has become more expressive. If a state convicts someone for committing racial violence, a subsequent federal prosecution for the same conduct might be redundant because that person already faces criminal punishment in state court. But if the state lacks an applicable hate crime statute, and the federal prosecution includes a hate crime charge, then the latter adds something new to the equation: a message.
For example, Congress limited the circumstances in which federal prosecutors can charge violations of
§ 249. In what seems to be an expressive carveout, one of the circumstances enumerated in the statute is that “the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence.” But does this mean that if the state prosecutes an act of racial violence as a hate crime, as happened in Buffalo, there is less need for a federal hate crime prosecution?
Maybe. But the expressive purpose of federal hate crime enforcement goes beyond the simple act of calling something a hate crime. More than that, the message is about federal power—and in the context of racial violence in particular, the power to enforce the abolition of slavery. In this respect, the federal interest in eradicating bias-motivated violence is fundamental and profound, something the mere presence of a state hate crime charge might not vindicate.
In short, when it comes to Buffalo, as in other cases of racial violence, the question is not only whether the Department of Justice will assert federal power to prosecute the gunman, but also where that power comes from, and what it means to use it.
Kai Wiggins is a J.D. candidate at Stanford Law School and former policy analyst at the Arab American Institute. He thanks Taylor Nchako and Ella Chochrek of the Northwestern University Law Review Online for their helpful edits and feedback.