Spike in Anti-Asian Violence Prompts Debate on Value of Hate Crime Legislations

Suzy Park, CLS ’22

Since the beginning of the coronavirus disease (COVID-19) pandemic in early 2020, the United States has experienced an uptick in anti-Asian violence.[1]  On January 28, 2021 in San Francisco, an 84-year-old Thai man, who was taking a morning walk, was shoved to the ground and ultimately died from the injuries.[2]  A few days later, in New York City, a 61-year-old Filipino man was slashed in the face while riding the subway.[3]  According to the Center for the Study of Hate and Extremism at California State University, San Bernardino, last year, while the rate of hate crimes decreased overall, hate crimes targeting Asians rose by almost 150 percent.[4]  Further, between March 19, 2020 and February 28, 2021, Stop Asian American Pacific Islander (AAPI) Hate found 3,795 self-reported hate incidents targeting Asians.[5]

It is against this backdrop that the Atlanta-area spa shootings — in which Robert Aaron Long, a 21-year-old White man, fatally shot eight people, including six women of Asian descent — occurred.  Following the attacks, the local police’s seeming hesitancy in labeling the massacre a “hate crime” fueled outrage and disappointment in the Asian American community.[6]  Accordingly, there have been renewed calls for federal and state hate crime legislations.  Soon after the attacks garnered national attention, President Joe Biden urged Congress to pass the COVID-19 Hate Crimes Act, which would “designate an official at the Department of Justice to review COVID-19 related hate crimes reported to law enforcement, establish an online database of these incidents, and expand public education campaigns to mitigate racially incendiary language around the pandemic.”[7]  In South Carolina, Arkansas, and Wyoming, the only three U.S. states that do not have hate crimes laws or require data collection on hate crimes,[8] legislations that criminalize acts motivated by the victim’s group identity are gaining momentum.[9]

However, many remain skeptical that a growth in hate crime legislations will lead to an end in anti-Asian violence.[10]  Generally, for hate crimes, “a prosecutor has to prove to a jury beyond a reasonable doubt not only that the defendant committed a murder or a crime . . . but also that the defendant committed the crime for a very specific reason.”[11]  Unless “a perpetrator shouts a racist epithet or uses a racist symbol against a victim,” their motive is difficult to establish and thus, prosecutors shy away from charging hate crimes.[12]  A study from the Transactional Records Access Clearinghouse at Syracuse University revealed that while “state attorneys submitted more than 2,000 hate crimes to the federal government for prosecution over the last decade . . .[,] only 15% led to court cases.”[13]  In Texas, out of 981 hate crime cases reported to law enforcement between 2010 and 2015, only five resulted in convictions.[14]

Despite these challenges, there are reasons to pass legislation and pursue prosecution against anti-Asian violence.  Some view that notwithstanding the limited prosecutions and convictions, hate crime legislations are important because they “tell victims of hate crimes that ‘you matter and we’ll take it seriously if somebody hurts you.’”[15]  Others argue that a prosecutor’s failure to prove at trial that the defendant was motivated by racial animus will likely have little impact on whether the defendant is convicted of other crimes, and urge prosecutors to charge anti-Asian violence as a hate crime.[16]  “[H]aving hate crime laws on the books and not using them undermines confidence in the criminal justice system . . . because it sends the message that hate crimes do not really matter.”[17]

[1] Sam Cabral, Covid ‘Hate Crimes’ Against Asian Americans on Rise, BBC (May 5, 2021), https://www.bbc.com/news/world-us-canada-56218684.

[2] Thomas Fuller, He Came From Thailand to Care for Family. Then Came a Brutal Attack., N.Y. Times (Feb. 27, 2021), https://www.nytimes.com/2021/02/27/us/asian-american-hate-crimes.html.

[3] Ritchel Mendiola, Filipino American Man Slashed in the Face While Riding NYC Subway, Asian J. (Feb. 8, 2021), https://www.asianjournal.com/usa/newyork-newjersey/filipino-american-man-slashed-in-the-face-while-riding-nyc-subway/.

[4] Chelsey Sanchez, Hate Crime Laws Won’t Deliver Justice to AAPI Communities, Harper’s Bazaar (Mar. 26, 2021), https://www.harpersbazaar.com/culture/politics/a35905453/hate-crime-laws-aapi-abolition/.

[5] Russell Jeung et al., Stop AAPI Hate, Stop AAPI Hate National Report 1 (2021), https://secureservercdn.net/

[6] Bill Chappell & Dustin Jones, ‘Enough is Enough’: Atlanta-Area Spa Shootings Spur Debate Over Hate Crime Label, NPR (Mar. 18, 2021), https://www.npr.org/2021/03/18/978680316/atlanta-spa-shootings-expose-frustration-and-debate-over-hate-crime-label.

[7] Sanchez, supra note 4.

[8] Laws and Policies, U.S. Dep’t of Just., https://www.justice.gov/hatecrimes/laws-and-policies.

[9] Nathan Layne & Andy Sullivan, Killings of Asian Women Renew Push for Tougher U.S. Hate Crime Laws, Reuters (Mar. 20, 2021), https://www.reuters.com/article/us-crime-georgia-spas-laws/killings-of-asian-women-renew-push-for-tougher-u-s-hate-crime-laws-idUSKBN2BC0AC.

[10] Jaweed Kaleem, Atlanta-Area Spa Shootings Place Spotlight on Hate Crime Laws, L.A. Times (Mar. 19, 2021), https://www.latimes.com/world-nation/story/2021-03-19/atlanta-spa-shootings-hate-crime-history.

[11] Eric Levenson, Why Prosecuting Hate Crimes Can Be Difficult, CNN (Oct. 31, 2018), https://edition.cnn.com/2018/10/31/us/hate-crimes-charges-motive/index.html.

[12] Layne & Sullivan, supra note 7.

[13] Kaleem, supra note 10.

[14] Sanchez, supra note 4.

[15] Layne & Sullivan, supra note 9.

[16] Shan Wu, Anti-Asian Violence Must Be Charged as a Hate Crime, CNN (Feb. 26, 2021), https://edition.cnn.com/2021/02/25/opinions/hate-crime-anti-asian-violence-wu/index.html.

[17] Id.