First in a two-part series
We are just a few days away from the one-year anniversary of the tragedy at the Tree of Life synagogue in Pittsburgh, where a man who said “I just want to kill Jews” gunned down 11 people attending Shabbat morning services.
Following the deadliest attack on Jews in U.S. history, the suspect faces a 63-count federal indictment that includes hate crimes and obstructing religious belief.
Unnerved, many places where Jews gather – especially temples – hired security, including in Massachusetts. Though anti-Semitic incidents in the state have been chilling – and increasingly frequent – none have been deadly.
Still, they leave wounds. From the desecration of 59 graves at a Jewish cemetery in Fall River last March to anti-Semitic graffiti found on a Jewish-owned Lynn business in July, hate crimes in Massachusetts have left Jews looking for justice.
Massachusetts rarely delivers the stiffer penalties for hate crimes promised under state law. So as hate crimes increase, more perpetrators are getting away with it.
Why? The anti-Semitism may be clear – such as the graffiti in Lynn – but in the acts of vandalism that make up most of the hate crimes, there’s no witness and no evidence that points law enforcement to the perpetrators.
“If you’re Jewish and you have all your tires slashed, how do I prove that additional element of ‘was that crime done because the person is Jewish?’” said Northampton Police Chief Jody Kasper, a member of the Governor’s Task Force on Hate Crimes. “We don’t always know the answer to that because many hate crimes like that or vandalisms like that are in the middle of the night. Vandalisms are a very low-solved crime. It’s hard to figure out who did those.”
Lack of justice takes a toll on affected communities. For example, just a few weeks after last year’s Tree of Life massacre, the Chabad of Peabody congregation was rattled to find a window by the front door shattered by pellets from a BB gun. No one was charged.
Rabbi Nechemia Schusterman said he hopes it was merely the work of joy-riding teenagers with no anti-Semitic motive. But uncertainty has bred fear, especially among Hebrew school parents who demanded tighter security measures after the incident. The facility now has stronger locks, upgraded security cameras, and increased monitoring by police.
“My biggest frustration is that it leaves people afraid” when a potential hate crime goes unpunished, Schusterman said. “It’s important that these crimes be followed up and prosecuted because it acts as a deterrent to further crimes.”
The number of hate crimes in the state climbed from 391 in 2016 to 427 in 2017, according to the latest statistics available from the Executive Office of Public Safety and Security. Of grave concern to the Jewish community: the 90 anti-Semitic crimes in 2017 was the highest number recorded for a single year this century.
Meanwhile, fewer than 18 percent of the 788 hate crimes reported in Massachusetts between 2016 and 2018 resulted in an arrest, according to data filed with the National Incident-Based Reporting System.
Among those charged, only a fraction get convicted. For example, among those charged with hate crimes in Essex County – which includes most of the North Shore – between 2016 and 2018, only 31 percent (11 out of 35) were determined to be guilty.
“The evidence shows that hate crimes and incidents of violence are on the rise across the country and even right here in Massachusetts,” said Aaron Agulnek, director of government affairs for the Jewish Community Relations Council in Boston. “We all believe something needs to get done. There are a lot of ways to get to that.”
From 2016 through 2018, Jews were victims of 197 hate crimes, according to state data. Only nine (4.5 percent) of these incidents resulted in an arrest. The other 188 cases remain unsolved.
“All across the country, we very seldom get a conviction on a hate crime charge,” said Jack McDevitt, a Northeastern University criminologist and an expert on hate crimes.
The biggest barrier to justice is perhaps the most obvious: hate crimes are often hard to solve. For a hate crime to occur, another crime must also take place; the hate crime charge would refer to the intent behind the other charge. For example, in the mass shooting in Pittsburgh, victims were targeted solely because they were Jewish, so hate crime charges could simultaneously be added to the assault with a deadly weapon and murder charges, thereby triggering more severe consequences: Federal prosecutors are seeking the death penalty.
Most underlying crimes tend to be tough to crack due to the nature of the incidents. In 84 percent of hate crimes involving Jewish victims in Massachusetts over the past three years, vandalism was the offense. These cases are notoriously vexing because they routinely occur without witnesses. In the remaining 16 percent of cases with Jewish victims, offenses involved intimidation, theft, or assault.
Only two resulted in an arrest.
When no one is held accountable, a local Jewish community can feel at risk and abandoned. In Reading, for instance, more than 30 swastikas appeared in public schools over an 18-month period in 2017 and 2018, including one alongside a message that read “Gas the Jews.” Parent Rebecca Liberman said the defacing of property with anti-Semitic symbols and messages made her daughter feel nervous at school.
“These kids are in school with my kids,” Liberman said, referring to the vandals. “It bothered me that nobody seemed to be trying that hard to find those responsible. They would say: ‘It’s kids being kids’ … The impact of nothing happening makes it feel like nobody cares.”
In rare cases when a suspect is charged, a hate crime motive is hard to prove. In Massachusetts, as in other states with hate crime laws, the burden of proof rests with prosecutors to show not only that a suspect committed a crime such as vandalism or assault, but also that the suspect targeted the victim because of his or her race, religion, or association with a particular group, as in the Pittsburgh synagogue shooting.
This need to prove motive makes hate crimes unique. Other types of crimes don’t require it. If a car is stolen, for instance, the case doesn’t hinge on why; as long as evidence proves the suspect did it, that person can be found guilty.
In a hate crime, inability to prove motive makes the charge untenable. The best a prosecutor can get in that situation is guilty on the underlying charge, such as assault or property damage.
In Massachusetts, stakes are high for the accused. Intentionally damaging a synagogue or church, for instance, can lead to 2½ years in prison and/or a fine totaling three times the value of the loss.
Injuring someone in a hate crime that involves a firearm can result in up to 10 years in prison.
But in many cases, it’s no easy task to prove that that the assailant was motivated solely by hatred for the victim’s identity. An example comes from Carrie Kimball, Essex County District Attorney spokeswoman. She posits hypothetically that she and this reporter are in a bar when the reporter spills a drink on her. She uses a slur maligning his religious identity and punches him.
“Is that a hate crime because I used the slur?” Kimball asked. “That’s not why I hit you. I hit you because you spilled a drink on me, not because you are a stupid whatever. That’s part of what’s difficult … If you’re in a courtroom, you have to prove that the only reason I hit you is because of your religion.”
Massachusetts lawmakers are taking aim at hate crimes in attempts to heighten consequences and expand protected victim categories. For example, one bill sponsored by state Senator Bruce Tarr of Gloucester would double many of the penalties for hate crimes.
But taking steps to get more convictions under existing statutes is not on the legislative agenda. Although experts and justice advocates would like to see better results, they don’t see much that lawmakers can do to enable a higher conviction rate.
“You need to be able to solve the crime first,” said David Linsky, a Jewish state representative from Natick who called anti-Semitic incidents in his community “extremely concerning.”
“If you can’t figure out who did the vandalism, it doesn’t matter what the statute says,” Linsky said.
Statutory fixes aren’t the answer, according to Northeastern criminologist McDevitt, in part because proving motive is always necessary. The bar needs to remain high, he said, because hateful motive is what makes these criminal acts particularly egregious and worthy of extra penalties.
Lowering the burden of proof might be possible, but only if Massachusetts lawmakers want to blaze a trail toward a new hate crimes standard. Michael Coyne, dean of the Massachusetts School of Law in Andover, noted that crimes against the elderly carry extra penalties in Massachusetts no matter what the motive is. Similarly, the Legislature could adjust statutes so that hate crime penalties apply whenever a member of a protected group is victimized, regardless of motive.
“We know there are a significant number of crimes committed against this ethnic group,” he said, referring to Jews, or any others who might be named in the hypothetical legislation. “For various reasons, [proponents could say] we want to provide additional protections, just like we did for the elderly.”
Coyne added that such provisions would likely face a constitutional challenge. McDevitt said the removal of motive from the hate crime definition would be untenable.
“In every state, every [hate crime] law has motive in it,” McDevitt said. “If somebody robs your house and you happen to be LGBTQ, it’s not a hate crime. They might not even know who you are. You can’t have that blanket saying: ‘If you’re a member of this class and a crime is committed against you, it’s a hate crime.’ No. That wouldn’t stand up to judicial scrutiny.”
The Anti-Defamation League distinguishes between a hate crime and a hate incident. The group defines a hate incident as a non-threatening comment or message that reflects bias, bigotry, or prejudice. For 2018, the ADL reported 144 anti-Semitic hate incidents in Massachusetts, marking the second-highest yearly figure on record. Only California, New York, and New Jersey experienced more anti-Semitic incidents last year.
But Robert Trestan, ADL New England regional director, cautioned against trying to rack up more convictions by going after a larger swath of anti-Semitic expression.
“You have to have an underlying crime, and that’s the threshold no matter what,” Trestan said. “We need to be very cautious that we don’t cross the line and start criminalizing things that are protected just because we want to have more convictions. That’s not really a solution.”
Massachusetts hate crime law ranks among the strongest in the country, McDevitt said. He said it gives police and prosecutors the tools they need to hold hateful criminals accountable. The challenge as he sees it lies in making sure those tools get used to their full potential.
“Community pressure makes police departments record these crimes,” McDevitt said. “They know someone is watching. They know someone cares. I think we need a similar kind of thing on the courts.”
The Anti-Defamation League of New England reported 144 incidents of anti-Semitism in 2018. Of the incidents reported:
• Assaults: three incidents, reflecting a larger national trend of rising assaults against Jews
• Harassment: 59 incidents were recorded in 2018
• Vandalism: 82 incidents were recorded in 2018
Incidents took place in business, private homes, public areas such as parks and streets, Jewish institutions, and schools:
• Incidents at Jewish institutions and schools: 11
• Incidents in non-Jewish K-12 schools: 59 incidents in 31 cities and towns
• Incidents on college campuses: 20
• Incidents in public areas (parks/streets/transit/buildings): 21
• Incidents at private businesses and retail establishments: 11
• Incidents in homes: 15
SOURCE: Anti-Defamation League of New England
Part 2 in this series will report on efforts to investigate and prosecute hate crimes in Massachusetts. This series is made possible through a grant from the Jewish Journal’s Fund for Jewish Journalism.