Massachusetts has strong hate crime laws to combat anti-Semitic violence. But laws aren’t applied as vigorously as they could be in a state where more than four out of five hate crimes – most of which involve vandalism or harassment – go unpunished.
That’s the takeaway of criminal justice experts who say obtaining more convictions in the Commonwealth depends on more consistent enforcement of laws already on the books.
From police departments that aren’t accustomed to writing up hate crime reports to prosecutors who drop charges during plea negotiations, the system offers many escape hatches where the accused can avoid a reckoning.
The Anti-Defamation League emphasizes the need for more police training as a key to getting more arrests and convictions. Results will improve when police officers statewide recognize bias indicators, ensure that they are noted in reports, and make sure the case is investigated as a possible hate crime, according to ADL New England Regional Director Robert Trestan.
“That is the best way to ensure that these cases are prosecuted,” Trestan said.
In the latest anti-Semitic incidents, swastikas were discovered on the walls of academic buildings at UMass Amherst and Smith College.
“I am sickened and I am angry. Acts like this are meant to incite fear and division,” Smith College President Kathleen McCartney said in a letter to the Smith community.
Campus police have launched an investigation into the incident, she said, but there are no suspects. The Northampton Police Department is assisting the Smith investigation, said Northampton Police Chief Jody Kasper.
“Maybe part of their investigation would lead out into the broader community and we might assist them with that,” said Kasper, who also serves on the Governor’s Task Force on Hate Crimes. “Whatever they would need – it could be technology, it could be guidance on particular laws – we’re here to assist.”
The hunt for perpetrators of North Shore incidents continues too, albeit with no more success in many cases. After someone hung Holocaust-denying flyers at Marblehead’s Temple Emanu-El last July, police posted online high-quality surveillance footage of the incident and questioned more than one individual, according to Marblehead Police Chief Robert Picariello. Police could bring defacement of property as well as hate crime charges in the case, Picariello said, but they don’t yet have a suspect. The investigation is ongoing.
“One of the elements of this thing was the fact that people were spreading their message of hate,” via an act of marring property, Picariello said. “People are denying the Holocaust and doing that on a temple … We’ve taken every tip seriously and have followed up on everything that we could.”
Other incidents have also frustrated Marblehead. Anti-Semitic graffiti on the causeway in 2017 could lead to vandalism and hate crime charges, Picariello said, but the case remains unsolved in the absence of a suspect or witnesses. In 2016, someone wrote “Jews did 9/11” in dirt at a Marblehead ball field, but that might not constitute vandalism, according to Picariello.
“Were we to find the person and they solely drew in the dirt, I’m not sure we’d have a crime to be honest with you,” Picariello said.
Police need all the help they can get in solving vandalism cases, which often occur without witnesses and are tough to crack even when multiple detectives are on the hunt. Training police to recognize what constitutes a hate crime can help and was a priority of last year’s continuing education curriculum for police statewide.
Yet as important as training is, it’s not a panacea for what’s missing in many police departments, according to Kasper.
“A lot of things are just about changing a culture,” Kasper said. Some officers “maybe don’t feel comfortable or don’t have an understanding of, ‘Hey, when you have a vandalism with swastikas, that’s a hate crime and we’re going to start documenting those, organizing them and classifying them that way.’ Sometimes it’s just a change from the way things have been done.”
The dearth of hate crime convictions “has been a problem for a long time, and it’s a problem in every state,” said Jack McDevitt, a Northeastern University criminologist and hate crime expert. “It sends a message back to the victims and to members of the victims’ communities that we’re not going to convict on a hate crime charge. And so we’re not going to offer you that protection.”
Hate crimes in Massachusetts include those in which someone is victimized via assault, battery, larceny, or vandalism. The act becomes a hate crime subject to stiffer penalties – such as up to five years in prison for battery – when the violation involves “intent to intimidate such person because of such person’s race, color, religion, national origin, sexual orientation, gender identity, or disability.” Intentionally damaging a house of worship also triggers extra consequences, including up to five years in prison.
Most reported hate crimes go unsolved in Massachusetts. From 2016 through 2018, fewer than 18 percent of cases (141 out of 788) resulted in an arrest, according to data filed with the National Incident-Based Reporting System. Convictions are rarer still. Among those charged with hate crimes in Essex County between 2016 and 2018, only 31 percent (11 out of 35) were determined to be guilty.
Hate crimes are intrinsically tough to solve. Most involve property violations in which no suspect is ever identified or charged. In rare instances when a suspect is identified and hate charges are brought, they won’t stick unless evidence convincingly shows a solely hateful motive. That hefty burden of proof gives defense attorneys a wide target for poking holes in the prosecution’s case.
But with hateful incidents occurring with more frequency in recent years, communities want to do all they can to tighten the system’s loose fittings. From 2015 to 2017, the Anti-Defamation League noted anti-Semitic incidents more than doubled nationwide.
In Massachusetts, the ADL identified 144 anti-Semitic incidents in 2018, the second-highest year on record. The ADL’s list tracks events involving a non-threatening comment or message that reflects bias, bigotry or prejudice. These are not criminal because they’re protected as free speech under the First Amendment in the U.S. Constitution. Meanwhile, hate crimes against Jews in Massachusetts reached their highest number this century (90) in 2017, according to the Executive Office of Public Safety & Security’s Hate Crime in Massachusetts 2017 report.
Not every incident is reported. Across Massachusetts, 254 cities and towns reported zero hate crime incidents in 2017, according to the EOPSS report. In 2016, 265 agencies reported zero incidents. Those reporting zero for an entire year weren’t just small towns in rural areas. They included such diverse cities as Gloucester (population 30,000), Lawrence (pop. 81,000) and Fall River (pop. 89,000). More recently, Fall River has been investigating as a hate crime the desecration of 59 grave sites at a Jewish cemetery last March, but no one has been charged.
“It’s hard to believe that there were no crimes that were motivated by bias in 2017 in a city that calls itself ‘The Immigrant City,’” said Michael Coyne, dean of the Massachusetts School of Law, referring to neighboring Lawrence. “Either law enforcement isn’t sufficiently trained to recognize what might be a hate crime or we’ve got a serious issue of underreporting. Because it just doesn’t make any sense how a city like Lawrence does not have any.”
(ADL offers training and educational programs, which can be customized to meet specific needs and interests of law enforcement agencies. Read about them here.)
By law, the state’s seven police academies overseen by the Municipal Police Training Committee must train recruits and in-service personnel to enforce the state’s hate crime statutes. Last year, hate crimes were covered in legal update sessions that officers statewide were required to attend.
To help crack down on the rising tide of hate crimes, Governor Charlie Baker in 2017 reinstated the Hate Crimes Task Force, which had disbanded after a spate of activity in the 1990s. In 2018, he heeded a recommendation from the panel: He called on law enforcement agencies statewide to establish a point person for the reporting of hate crimes.
For some departments, the governor’s suggestion was already in place. Lynn, for instance, has for years been processing hate crime allegations through its chief detective, according to Lieutenant Michael Kmiec. Police departments in Salem and Danvers also have point persons for investigating potential hate crimes. Police in Peabody and Revere did not respond to queries from the Jewish Journal.
Some now say it’s time to move beyond suggestions to requirements.
“That would really help,” McDevitt said. Having a designee in each law enforcement agency “helps a lot in terms of educating the police officers and educating the prosecutors. You then have a civil rights officer who understands what a hate crime is … They can help to sort of make the case that this is important.”
Once police have charged a suspect, the district attorney’s office in that county makes sure in most cases that the suspect is arraigned. But critics say the system could be stronger if prosecutors would go the distance and give the courts a chance to test every case’s merits.
Sometimes prosecutors dismiss hate crime charges before a judge or jury has a chance to render a verdict. That happened, for instance, in two out of 12 hate crime cases brought by the Essex County District Attorney in 2016. Prosecutors sometimes take such a step when they believe evidence for the hate crime isn’t strong enough to convict, according to Carrie Kimball, spokeswoman for the Essex district attorney’s office.
“Where you have a case – say, assault and battery with a dangerous weapon and then a civil rights [hate crime] violation – we might dismiss the civil rights violation and get them to take the plea on the assault and battery,” Kimball said. “Because the person is going to get time. And sometimes that’s the best possible outcome.”
“We don’t lightly dismiss that charge,” she added, noting that victims are informed and their feedback is considered before hate crime charges are dropped. “We only do so when it’s in the best interest of justice and we believe we’ll get something [though] we may not be able to prove the [hate crime] charge.”
Concerns have arisen, however, that prosecutors in Massachusetts and nationwide can be too quick to assume evidence won’t hold up rather than test it in court. What they deem to be insufficient evidence might turn out to be plenty to warrant a conviction in the eyes of a jury, according to McDevitt.
With regard to low conviction rates for hate crimes in Massachusetts and nationwide, McDevitt said: “The reason is a lack of appreciation and effort on behalf of the prosecutor.”
Using an assault case as an example, McDevitt said prosecutors consider that they can get the assault conviction, though maybe not prove a hateful motive. They also weigh the fact that defendants are loathe to serve time for hate crimes.
“Many prosecutors trade the hate crime charge for a quick plea on the accompanying charge,” McDevitt said. That approach, rather than going before a jury, “is easier for [prosecutors],” he said. “It’s less effort for them. And I don’t think prosecutors understand how much it hurts victims … to see these cases be pleaded down.”
Victims tend to go along with proposals to drop hate crime charges, McDevitt said, because prosecutors have warned them: If we try for a hate crime conviction and lose, then we might lose the whole case.
But such moves often aren’t warranted, he said, because juries have shown willingness to convict on other charges even if they acquit on hate-related counts.
“The person still gets their penalty” for assault, McDevitt said, referring back to his example. “It would be worth going forward [with a hate crime charge] even if they lose on it because that shows the victim that, ‘Hey, we’re going to fight this. We might lose it, but we’re going to fight it.’”
Others agree prosecutors could push harder to get hate crime convictions, but often don’t because they fear that doing so could be costly. Coyne, the Massachusetts School of Law dean, said prosecutors weigh the possibility of losing the entire case, including the accompanying charge for assault or whatever it might be.
“If you ask for too much, the jury might reject all of your case, find it not credible and come back with a not-guilty verdict on all of your charges,” Coyne said.
Coyne also noted that prosecutors want to maintain the public’s confidence. They don’t want to lose too often in court, he said, because it doesn’t look good for them to be bringing a slew of indefensible cases against suspects who turn out to be innocent. And because hate crimes are often hard to prove, the risk of losing on those cases is considerable.
“The administration evaluates performance,” Coyne said, referring to how district attorney offices are an arm of the state’s executive branch. “Not one wants to have their review done and when someone looks at it, they are 0 for 20.”
Kimball rejected the idea that Essex County prosecutors might be motivated to pursue a certain percentage of guilty verdicts and therefore shy away from hate crime cases, which inherently carry a heavy burden of proof.
“Our goal is justice,” she said. “If the person is not guilty, we are as interested in that as we are in convicting the guilty.”
Coyne noted that prosecutors are highly motivated to press hard for convictions in high-profile hate crime cases, such as last winter’s desecration of Jewish graves in Fall River. They know the public watches such cases carefully because entire communities have felt violated by the crimes. To secure a conviction and commensurate sentence can deliver a measure of closure, healing, or belief that justice was served.
To inspire prosecutors to be so vigilant in all cases – not just the most high-profile ones – McDevitt suggests organizing to celebrate robust prosecution efforts. Giving out awards, for instance, to prosecutors who go the distance in court and get a significant number of hate crime convictions can send the message that the work is appreciated.
“Encourage them. Say that it means a lot to the community and you get them to go forward” with seeking verdicts, McDevitt said. “It’s a way to get the conversation going, along with having meetings with the DA to say: ‘This matters to us. We want you to keep it going.’”
This series is made possible through a grant from the Jewish Journal’s Fund for Jewish Journalism.