[Warning: this article discusses racial and sexual violence against Asian-Americans, including both historical instances of violence and the recent Atlanta shootings which occurred ]
As a former federal prosecutor and a frequent political commentator on racial justice in the law, Shan Wu has been contacted by a number of news agencies in the past several weeks to comment on the rise in anti-Asian hate crimes in the United States since the beginning of the pandemic.
Read on for a summary of what Shan has to say, and links to all of his most recent appearances.
The federal standards for a hate crime are simply that the crime was motivated by prejudice against race, gender, sexual orientation, or another protected status. Most states have their own hate crime statutes with similar language.
Amidst the recent rise in violence against Asian-Americans and Pacific Islanders, many activists have called for these acts of violence to be prosecuted as hate crimes.
As Shan told CNN on February 28th, this is an especially important step to take, because the hateful intent motivating these attacks has to be called out if any progress is to be made.
In Shan’s view, prosecuting the hate behind a crime can deter future bigots from acting on their worst impulses.
Statistics from the Stop Asian-American and Pacific Islander Hate database (Stop AAPI Hate) show that hate crimes against Asian-Americans not only go under-reported, but also under-prosecuted. Police are often uninterested in pursuing the racial motivation behind a crime, and prosecutors tend to view hate crimes as more difficult to get a conviction for than “regular” crimes.
But as Shan told NPR, a lot of that stigma is unnecessary, for a number of reasons:
- The standard that law enforcement needs to meet in order to charge someone with a hate crime is “probable cause”– a low standard that is usually easy to meet.
- Once the trial begins, the standard for proving that someone committed a hate crime is admittedly higher — but bringing in the evidence of racial or hate-driven motivation can actually help convince the jury to convict the attacker of the “regular” crime as well.
- Even if the hate crime charge does make it more likely for prosecution to lose the case, it’s still important to make use of the hate crime statutes.
Prosecuting attackers under these statutes, Shan argues, would send the message that hate crimes are a real threat to the Asian-American community, and something that the justice system is committed to ending.
History of anti-Asian violence
In an op-ed that Shan wrote, also for CNN, he outlined the long and terrible history of violence against AAPI folks in the United States, and the abject failure of the criminal justice system to hold the perpetrators of these horrendous attacks accountable.
From the 1871 lynching of 18 Chinese immigrants by a mob of some 500 White and Latino rioters in the heart of Los Angeles, to the 1885 Rock Springs Massacre of 28 Chinese miners in Wyoming, almost any prosecution of anti-Asian hate crimes has always resulted in acquittals or overturned convictions.
In 1982, the two white men who beat Vincent Chin to death in Detroit were let off with a few years of probation and $3,000 fines. In response, Asian-American activists forced the federal government to bring the first ever federal hate crime charges on behalf of an Asian-American victim.
Predictably, one of the attackers was acquitted, and the other’s conviction was overturned on appeal.
Shan highlighted these historical incidents to demonstrate that anti-Asian hate is not a recent phenomenon, but rather a systemic problem that has always gone unchallenged by the United States legal system.
Recent rise in violence and what we can do about it
The NYPD reported a 1,900% increase in anti-Asian hate crimes in 2020, and Stop AAPI Hate has recorded over 3,800 incidents of anti-Asian discrimination or hate since the beginning of the pandemic.
Probably the most publicized of these attacks were the March 16th mass shootings in Atlanta – where a white male shot and killed 6 Asian women and two other bystanders. As of April 19th, the shooter, Robert Aaron Long, has still not been charged with a hate crime.
In another interview for CNN, Shan argued that the police and Georgia prosecutors are both complicit in downplaying the racial motivation for these horrific attacks. Dismissive police comments that the shooter simply “had a bad day” and the prosecutors’ reluctance to charge Long with a hate crime are perfect examples of why hate crime statutes go underused.
In a Facebook video, Shan laid out some of the changes that the Biden administration can make that could help curb the rising tide of anti-Asian hate and violence:
- The federal government can stop using jingoistic language like the Department of Justice’s “China Initiative,” which frames China as a unique threat to the safety of those in the US.
- Federal officials can avoid racially loaded language like the FBI director’s statement that China “steals it’s way up the economic ladder,” which echoes racist imagery of Asians being “sneaky.”
- Federal prosecutors, as well as prosecutors around the country, need to start prosecuting anti-Asian violence, as well as other hate-motivated attacks, as hate crimes — even if it means losing cases.
Prosecutors need to grow a backbone
There was a saying about difficult cases when Shan worked at the US Attorney’s Office: “Win or lose, some cases just need to be tried.”
But in practice, the Attorney’s Office didn’t always live up to this lofty goal. Shan shared a story with the Washington Post about an assault case that, in Shan’s view, was clearly motivated by racism.
But his supervisor discouraged him from charging it as a hate crime, citing the familiar logic that a hate crime charge would make it more difficult to win the case. “Don’t make the case harder than it already is,” his supervisor told him.
Shan listened to his supervisor then, but he regrets it now. If the United States legal system is going to make any difference in helping to curb the rise of anti-Asian hate, then prosecutors around the country need to call a spade a spade, and prosecute racially-motivated attackers for hate crimes.