Prosecutors need to charge anti-Asian violence as hate crimes. While any violent crime impacts the victim, a crime motivated by hate can impact entire groups of people, be they of a particular race, religion, ethnicity, or sexual orientation.
To effectively deter future bigots from acting on their worst impulses, the criminal justice system must not only prosecute the violent acts, but also the hateful intent behind them.
The need to adopt this approach could not be more urgent. In the wake of COVID-19, there has been an enormous upsurge of some 1,900% increase in hate crime incidents driven by anti-Asian sentiment. Additionally, almost 3,000 incidents of anti-Asian discrimination were reported to the Stop AAPI Hate database.
The recent murder of Vichar Ratanapakdee, an 84-year-old Thai immigrant who was slammed to the ground by a 19-year-old, has reminded us of the crucial need to charge these crimes with the acknowledgement of the hateful intent triggering them. So far, the defendent in the Ratanapakee case has only been charged with elder abuse and murder. Why might prosecutors be reluctant to charge a hate crime?
It’s important to consider the murder of Ratanapakdee against the historical backdrop of anti-Asian violence in America. Like crimes against other people of color, anti-Asian violence has been under-scrutinized, under-prosecuted and often condoned throughout US history.
In the 1800s, both a lynching of 18 Chinese people by a mob of some 500 White and Latino rioters and a massacre of 28 Chinese miners in Wyoming were penalized by the defendants’ aquittal and/or the filing of no charges whatsoever. This blatant disregard for Asian life in the U.S. is not a historical remnant, but a sour continuance as illustrated in the 1982 Vincent Chin case: a young Chinese man was beaten to death with a baseball bat by two white men who blamed Asians for the loss of auto worker jobs. No hate crime was charged, and the two men were simply fined and sentenced to three years of probation.
The death of Ratanapakdee and other Asian elders who have been targeted amidst the pandemic are only a slice of the plague of anti-Asian violence arisen during the pandemic. Cursing/spitting/”Frebreezing” at & on Asians on public transportation, looting Asian-owned businesses, and the bullying of Asian American students in school all point toward the urgency in charging these crimes as hate crimes.
But prosecutors are often reluctant to charge hate crimes because they think they are hard cases to prove – simply put, they are afraid to lose.
I’ve seen this reality firsthand. Once, when I was a young federal prosecutor in Washington, DC, I wanted to charge a hate crime but was dissuaded from doing so by my supervisor, who told me that proving the crime was motivated by racial animus added an unnecessary “burden.” I took his advice, but I regret it today.
I understand the reluctance of prosecutors to try difficult cases. No one likes to lose, and prosecutors fear losing just like everybody else. But charging a hate crime does not necessarily make it harder to secure a conviction — the evidence of the crime alleged to be motivated by hate often speaks for itself. For example, in the Ratanapakdee case, even if prosecutors cannot prove at trial that the defendant who ran full-speed into an 84-year-old was motivated by racist animus, it will likely have little impact on whether the defendant is convicted of murder and elder abuse.
No doubt some prosecutors may differ with this view, arguing there is a duty to bring charges only where there is a high likelihood of conviction, because acquittals may undermine confidence in the criminal justice system. But having hate crime laws on the books and not using them undermines confidence in the criminal justice system far more because it sends the message that hate crimes do not really matter.
At the US Attorney’s Office in Washington, we had a saying about difficult cases: “Win or lose, some cases just need to be tried.” The lives of Ratanpakdee, Chin, the Chinese victims lynched and massacred — as well as countless other victims of racist violence — deserve courageous and righteous prosecutions.
