Pushkin from Pushkin Industries. This is Deep Background, the show where we explore the stories behind the stories in the news. I'm Noah Feldman. Several weeks ago, the nation was shocked and horrified to hear about shootings in Atlanta, Georgia, where twenty one year old man went to three day spas or massage parlors and killed eight people. Six of the victims were of Asian origin, and many people are wondering if and whether the gunmen will be charged with committing a hate crime alongside charges of murder and aggravated assault. But hate crime charges are relatively rare and they can be challenging to prove in court. In twenty twenty, Georgia became one of the last states in the country to enact an anti hate crime That in turn raises some core questions. Why are hate crimes charges so rare? How should and do the police actually investigate and prosecute hate crime? What should we do when there are many hate crimes that may evade the legal criteria despite appearing on the surface and maybe beneath to be racially motivated. All of these are questions that connect to the theme of power, which is our central theme this year On Deep Background, they raise the question of the state's power to react to racial and other forms of bias, and of the capacity of our society more broadly, to exercise societal power over and against the power of hate. Today's guest is an expert on precisely these topics. Doctor Jeanine Bell is professor of law at Indiana University. She's a nationally recognized scholar in the area of pleasing and hate crime. She wrote a book called Policing Hatred, Law Enforcement, Civil Rights and Hate Crime, and ethnographic investigation of a big city police hate crime unit. Today, on Deep Background, she's going to talk to us about hate crimes laws, when and how they came, about how they can and should be enforced, and criticisms of those laws raised by some in the advocacy community. Professor Bell, welcome to Deep Background. Ganine, thank you so much for being here. Your topic is perennially significant, and it's also very significant in the present moment. What drew you to this particular subject of expertise and study. It's it's importance is unquestioned, and it's more fortunate that you are working on it. But what personally for you made this your focus. It's interesting, you know, and this has a lot to do with my current career as a law professor. I was a political science graduate student. It was early in nineteen nineties. I was in the dentist's office and I picked up Time magazine and they had a story about a black tourist visiting Disneyland, I believe, who had been set on fire by some whites, and they called it a hate crime. I was really surprised, you know, I was familiar with acts of racist violence, but I'd never heard any notion of hate crime. So I decided to look into it, and I looked at the literature, all of the literature about this term hate crime. It was right between rav in Wisconsin versus Mitchell and all of the legal literature. You know, law professor's writings said, Oh, this silly. Nobody knows what a hate crime is. You can never tell whether something is a hate crime or not. And this is still twenty five years later, something that is a huge portion of the First Amendment literature. We can't figure out whether something is bias motivated. So that's why I do this. I wanted to ask you just to begin by giving us your working definition of what counts as a hate crime or a bias crime from your perspective, Okay, hate crimes are crimes motivated by bias on the basis of race, religion, sexual orientation, gender, gender identity. The precise categories, and it's important that you understand that they are categories, not groups. The precise categories vary by stack. Shoot, whatever hate crime statute you're looking at, it's mostly federal in state, and there are some states, like the state I'm in right now, Indiana, that prevent localities from enacting their own legislation in the context of criminal law. So even if we wish to, and I think that my particular city would probably wish to, particularly for the number of years that we did not have hate crime legislation, enact something, they cannot. They are forbidden by the legislature from doing something like that. When did federal or state governments start enacting laws that specifically punish hate crimes. In the nineteen nineties, most of the statutes were passed. This happened after the creation of the nineteen Hate Crime Statistics SECTS, which was a federal piece of legislation, So mostly in the nineteen nineties before that time, only Connecticut had biased crime legislation, and had Connecticut had it for a long time, or was it relatively new there as well, mid nineteen eighties. So these are all relatively recent in grand historical terms, although I guess there's now thirty years, almost thirty years of experience with a lot of them. Both yes and no, they're similar. Some of them are similar to federal civil rights legislation that we've had, you know, for one hundred years or so, similar in what sense, similar in targeting a particular type of terrorism bias motivated violence, and civil rights acts targets motivated violence, but without the categories. The innovation of hate crime is the adding in of the categories bias on the basis of race, religions, orientation, ethnicity, etc. Whereas the Civil Rights Statute said that it's a crime to interfere with a person's exercise of his or her civil rights, and it just so happened that many people who are committing such crimes are doing so on the basis of race, or exactly precisely, that is precisely the issue. I have a lot of, you know, in the weeds questions which will come to it a second but I wanted to ask you if at the biggest level, you had to say, how successful has this body of legislation been? And this is the body of legislation that I think you've studied as deeply as anyone living. What's the measure of whether laws like this are doing their job? And then by whatever measure that is, are they doing their job? That's a hard question. It's hard first because this is violence that goes largely unpunished, but for the existence of these particular killer pieces of legislation. Take cross burning, for instance, if someone burns across on my lawn, then there are very few criminal statutes that you can use to prosecute them. For arson, for example, you need a burned spot, right, and a lot of times when someone burns across there isn't a burned spot. And there was a famous case that I'm sure you have heard of in which the perpetrators burned across r A V burned across on the lawn of the black family that it integrated the neighborhoods. It was actually part of a reign of terror that these white supremacists had directed at the family. They'd done other things, but they eventually burned across on the lawn of the family Middle and ninth, and the prosecutor chose to use a hate crime statute because there wasn't really much else that wasn't a felony. The adult involved had pled to misdemeanors, so they didn't want to charge the juvenile involved with a felony, so they chose this hate crime statute because there isn't much else you can use for cross burning. And is that a typical situation. I mean, that's fascinating what you're telling me, because it runs sort of counter to my own intuition, which obviously was wrong. I mean, my intuition was something like, if it is under these statutes, for example, a crime to beat someone up on the basis of racial bias, then you could charge them already with the beating them beating the person up, and then you could a ad and enhanced the sentence and add a separate crime the for the bias motivations. That was my intuition. But what I hear you saying is maybe that intuition is backwards. All right, You've zeroed in on something important, but you're still not quite correct. Cross burning is unusual in the context of hate crime and the sort of lack of overlap with the regular criminal law. What about assault bias motivated assault? Assuming it is a low level crime, right, meaning I'm not seriously injured. The perpetrator beats me up terribly, but you know, I'm not really seriously I mean, it's not life threatening, and it falls into the category of low level assault. You have a couple of problems with that. The first is low level crimes are largely not investigated by the police. They just don't. Criminologists estimate that nearly eighty percent of low level crimes are not investigated by the police. It doesn't really matter that this is an assault that targets me because of my background. It's still a low level sault, and this is not a priority for law enforcement officers. So I've just been terrorized and the police are not even going to try to figure out who did it, let alone try to catch the perpetrator. So I have been terrorized, and that same perpetrator could victimize somebody else and I could certainly could be victimized again. So one of the things that hate crime laws do is they create an incentive for law enforcement officers to investigate times that they would not. I call that a success because we as society have said that these crimes are more damaging, so they should be investigated. Help me fill in how proof gets constructed by the police and argued by the prosecutors and considered by the jury in cases where it's not flatly obvious on the surface. So maybe we could take as an example the Atlanta shootings that are fresh in our minds, where a disproportioned number of the victims were Asian American and that immediately led to a national discussion about bias and hate against Asian Americans, but in which it's also conceivable that the shooters motives were not tagged specifically to the ethnic or racial characteristics of the victims, which is not to say that they weren't, just to say that it seems conceive that there's another explanation. How would we go about figuring out the way the system would determine whether those crimes, which were crimes of murder and we're serious crimes and will be taken seriously in terms of identification and enforcement, whether that is in addition a bias crime that should be charged as such. Well, I'm glad you brought up that case, in particular, if that case had been investigated by police officers who knew really anything about a hate crime, they say, all right, so there's a disproportionate racial group of individuals who may have been targeted because of bias. So what do we need to do. Well, we need to interview survivors. Let's interview survivors about what happened during the crime. The individuals who are survivors, their native language was not English. So you send in individuals who speak to the grieving survivors, grieving and traumatize survivors in their language, right, and you gather all the evidence of what happened during the crime. So if you look at the for instance, Korean language press, which actually did this, unlike law enforcement officers, they have a different story to tell about what happened. When the perpetrator came to the establishments, perpetrator said things like, and you can see this in the press. They said the perpetrator was there to kill all Asians. That's evidence of motivation. Right. You don't just interview the perpetrator and ask so why'd you do this? That's proper hate crime investigation. So you look in every location for evidence of motivation, just as you might any other crime. Murder for hire, for instance, you don't just act ask the perpetrator so, hey, anybody pay you to do this, We'll be right back. So interviewing survivors, doing so in a culturally and linguistically sensitive way is a crucial element. What else should what else is best practices for law enforcement to try to gather motive? I mean, is profiling a perpetrator, not by interviewing the perpetrator, but by talking to people a meaningful undertaking or is that more misleading than anything else? It's likely misleading, but you do talk to the perpetrators and moreover, one of the things that I think the literature is often really confused about is how secretive perpetrators are about their motives. In these cases. These are often individuals who have an ideological commitment to committing the crime. It's not as if they want to hide they're bias. And this is something that I explored with police when I was writing my first book, because I said, so, do you have all these perpetrators who you know, don't want to tell you that they were biased? And the law enforcement office of no, of course not. They're people who are biased, so they don't hide it. What's the right way to think about it where a perpetrator has let's call them mixed motives, and where a prosecutor would have to try to, I guess, impose a logic on them for purposes of convincing a jury that might not fully be present in the thought world of the person who's the perpetrator. So I mean, imagine not this case, but imagine a case where you know, someone is very a male perpetrator is extremely angry at sex workers who are women and are also members of a particular racial group, and goes and kills them. And you know, where there isn't let's say, contemporaneous evidence that he said, you know, I'm here to kill all Asians are similar. But where you know, we could infer from the circumstances that there seems to be some nature of hatred against women, there seems very probably to be racial hatred. What's the best way to think about the nature of bias where the hate is against some class of people that overlaps very much with one of the protected categories in the hate crimes legislation. Because it's a legal system, you need evidence of bias motivation, and in the mythical case that you've created, there is not evidence of bias motivation. That wouldn't suffice if someone says, you know, I'm really angry at women, that's not I mean, that's not sufficient motivated by bias? Right that crime? You know, we require particularization. Was that act motivated by your bias? We need evidence? And moreover, prosecutors are conservative. Of course, there are cases that I see plenty of evidence of bias, statements by perpetrators indicating they targeted the people because of their background, and prosecutors says, listen, a jury's not going to like this, and so doesn't bring charges hate crime charges. Do you have a feeling that in general, law enforcement, including prosecutors, are doing a reasonable job relative to what they could be doing under the law, or do you think they're under using the powers that the laws give them. Vastly under using the powers that the law gives them. Many more cases could be prosecuted as hate crime cases. Prosecutors, however, are not the largest problem. The largest problem stems from law enforcement. Law enforcement not presenting prosecutors with merely enough cases because they're low level crimes that don't get investigated, they are not reported to beliefs that it's a problem. Eighty six point one percent of law enforcement agencies in this country said in twenty nineteen that no hate crimes that had occurred in their jurisdiction, and every other figure, including victim surveys by the federal government, suggests many more hate crimes. I'm kind of shocked by that number. Eighty six point one percent of jurisdictions reported no hate crimes. Yeah, sounds wildly implausible. Yeah, now, what's the solution to this structural problem, not the reporting problem, but the under enforcement problem. The solution is actually a solution that doesn't really involve police, but rather citizens. You need victims advocacy organizations, say the Game Lesbian Anti Violence Project for instance, to start believing that police can do something and developing relationships with the police. Places where hate crime law enforcement works best are places that say, all right, we're going to use the resources that we have, which include police departments, to find the perpetrator, stop this terrorism directed at individuals, and prosecute the crimes. So in places where I saw organize victims advocacy organizations that call the police and said, hey, you know, we have a person in our community who's been victimized by hate crime, and what are you doing about it? Exactly? Those police departments are incentivized to investigate crime, create bias units, press prosecutors, present cases to prosecutors, because police are the ones responsible for investigation. Prosecutors don't do this. Can I ask you a slightly bigger picture philosophical question that I was really puzzling over. I take it that the thrust of your research is that the statutes are pretty good. The challenge is really in law enforcement. As you were saying, there might be some tools to enable advocacy groups in civil society groups to help raise the consciousness of law enforcement and put put some political pressure on them to create bias units and improve enforcement. And everything that you said makes perfect logical sense to me. Then I think of what some of my most committed and idealistic students in that I teach in my law school are saying these days, and I bet that's the same as true for some of your students. They're talking about abolition of police departments, they're talking about abolition of prisons, and beyond those concrete proposals, they're also expressing a deep skepticism of the very capacity of police and law enforcement ever to overcome systemic racial bias, and in turn, that's causing these students to be very skeptical of criminal law as a tool for improving equal outcomes in society. And so the philosophical question is, how do you relate to these movements with respect to your own research project, which has been so focused on facilitating the police doing a better job than they are doing. So again, not that you're giving them, giving the police some free paths. To the contrary, you're calling on them to do their jobs. But if they were to do their jobs, it would mean more law enforcement, more criminal laws, and potentially more prison sentences. All right, So do you think Dylan Roof should be walking around? Dylan Roof is the young man who went to the church in Charleston, South Carolina and killed I believe nine people at a Bible study African Americans, all of them praying or praying and study Bible. So I certainly do not. But I'm also not a part of the abolition movement. So there's a role then for police here, and that's the first mistake that those abolitionists make, right, we have a role for they want law enforcement all they do, and they want law enforcement in this contact right very clearly a hate crime. Law enforcement is the reason Dylan Roof is not walking around. I think that you can extrapolate Dylan Roof to the person the kid who decides they want to leave racist flyers on my lawn or burn across on my lawn, scrawl something on my garage door. I think that there's a role for law enforcement to be involved in that. And to the concern about, well, we can't trust law enforcement to do this, I've seen law enforcement do this, and if we properly incentivize law enforcement and provide them this sport they need to do this, they can actually be quite good victim advocates. So I think that it's important not to throw the baby out with the bathwater. There are law enforcement officers who are quite biased. We know this, right, but it doesn't mean that we should not expect law enforcement officers who don't have such biases to serve the public in the way that the legislators have determined they should. When you make that very compelling response to actual abolitionists, prison abolitionists, or police abolitionists, if you have had occasion too, would imagine you probably have. How is it taken? I mean, it seems so compelling to me, But again, I'm not starting from the same position as some of those critics of this. They respond by saying, listen, we can't trust law enforcement because they lock up a disproportionate number of African Americans for hate crime. And I say, well, actually, I've looked at that, right, I've looked at law enforcement that was actually doing the real work of investigating hate crime, and I did not see evidence of that. Show me law enforcement that is actually doing its job with respect to hate crime, and show me that they are disproportionately enforcing the law. You are just assuming because large numbers of African Americans, more than you think should be, are being arrested. And I say that's a problem that you need to correct with law enforcement, as opposed to again saying we shouldn't do this at all. When you work with law enforcement, I take it that sometimes you're wearing a pure researcher hat and sometimes you're wearing an advisor, guide advocate, help them do a better job hat, And maybe it's possible to wear those two hats simultaneously. I was wondering in either of these modes. What reception do you have you had personally as a scholar and a researcher and sometime activist in encountering police when you discuss with them, you know, this is how you can do it better. This is what you're not doing, This is what the point that you're missing. I haven't had that role actually with law enforcement officers. I am about to take up that role. And meaning until now you've been a pure researcher and now going to be Yeah, I'm gonna sort of try to start helping law enforcement locally, at least locally with the issue of hate crime and to boost reporting of hate crime, because that's another thing that law enforcement can do to better address the issue of hate crime. They can have someone on the other end of the line when people call and who is not a Joe Friday, just the facts man. And when you say you're about to take up that role, it sounds like you've already done the first steps of talking to them about how that might be doable. Oh. Yes, in part because I've experienced this. I was walking, you know, in the neighborhood, and someone yelled something out of a car. I knew because I teach the First Amendment that this was not a hate crime, but it was unpleasant, right. So I told a bunch of people about it, and one person that I told about it said, you need to report that to the police. I said, oh, come on, not good. Heavens, you know, I know more about the police and hate crime than most people. We don't even have a hate crime statute, not reporting. She said, listen, the police want to know about this. So I called the police, feeling quite foolish about this, and had an encounter with the law enforcement officer supposedly randomly who really got it about how to take information about incidents like this. He understood quite well the power of the police in these sorts of situations. You've mentioned increasing reporting as a desirable objective, and I want to to ask you about and this is whearing your social scientist analysts had. When we do see a rise in the reporting of hate crimes, do you tend to interpret that as just more consciousness, more people doing what you did and reporting things, police being more receptive to taking reports, or do you see it as reflecting background conditions that they're actually might be rising numbers of hate crimes in the United states in their current moment, because obviously the public wants to know which of those two things is happening. Even if it's inherently good for more crimes to be reported, we also want to know if there's more hate crime happening now or not. Well, if I know something about changes in procedures among police departments, then I will see it as better policing. But in the absence of any evidence that suggests that police are doing anything differently, I don't know where to place it. I really don't because the data is very, very bad. The data includes not just police reports right the FBI, the bad data collected by the FBI. But there's a center in California, the Center for the Study of Hate and Extremism, that also collects data. Southern Poverty Law Center collects data. There was a media organization also collecting data and just recording incidents. So those are fairly stable sources of data that don't have They have some problems, but they're different types of problems than law enforcement. So if the sorts of data show rises and the FBI data shows a rise, then that suggests that there's a lot more activity. That suggests there has been a rise so you pair the law enforcement data with other sorts of data, and that you would say, is suggestive that there actually is a rise out there, not just a rise in reporting, but aine a genuine rise in light of what's going to interactundring today. Yeah, exactly, to return for a moment to the Atlantis shooter, who has not presently been charged with a hate crime, you were saying that with better evidence collection and more expertise, law enforcement could well have been able to gather information, might still be able to gather information in a better way they would enable a hate crime to be charged. And I guess I'm wondering in the real world, what would it take for law enforcement to gather that information, and what information would it take to convince law enforcement to bring such a charge, And then what bigger picture difference would emerge in the world if his crimes were charged not only as crimes of murder but also as hate crimes. A bias unit in the police department or in area police departments, or some sort of special focus on hate crime in the area, some targeted attention to hate crime investigation would lead to a change in the way that they investigate crime. And it doesn't matter for offense. He will be at some point charge with multiple murders, multiple accounts of first degree murders. But it matters to the individuals who are targeted by the is violence and by individuals targeted. I'm talking about the entire community. Asian Americans all over the country are reeling from this, and it does violence to their pain. To say that it's not motivated by bias says that someone can go in and target a bunch of you and we can say, oh, having a bad day, that is awful. That's a very powerful answer. I want to thank you so much for the interview and also for your much more importantly, for your terrific and fascinating work. I learned so much from reading it and learn so much from a conversation. Thank you, Thank you so much. Listening to Professor Jeanine Bell was eye opening for me because of the precision that she brings to analyzing both the data around hate crimes and the technical legal issues that surround the decisions to investigate and to prosecute. I was stunned to hear her say that in a recent year, eighty six point one percent of the criminal jurisdictions in the United States reported to the FBI that they had experienced no hate crimes, and although I would love to live in a country where that was the actual reality, I seriously doubt whether we do live in such a country. It was also a very striking that she pointed out that where prosecutors and police don't have experience in investigating hate crimes, they might miss some of the most basic sources of evidence, including, for example, sympathetically interviewing victims and survivors of hate crimes in order to find out what evidence they have to offer about the motives of the people who committed the crimes in the first place. Overall, I can see why Professor Bell is so focused on encouraging police departments to develop expertise and distinctive hate crimes units who will have the relevant institutional experience and their elevant knowledge of how to go about investigating hate crime in order to then bring those crimes to prosecutors to be brought before juries. A further perspective that Professor Bell brought that was extremely interesting to me was her gentle pushback against those prison abolitionists and police abolitionists who are skeptical of the capacity of hate crimes to actually enhance racial justice. Professor Bell made the point that we all surely think that terrible murderers like Dylan Roof need to be put in prison, and that from there one must embrace at least the possibility that by enforcing hate crimes legislation more completely, more fully, and more fairly, we actually could improve the state of criminal justice with respect to race. Finally, I was struck that even in our terrible moment, where there appears, based on the data, to be arise in hate crimes around the country, she is nevertheless ultimately optimistic about the possibility that our criminal justice system could improve going forward by doing a better job with respect to the enforcement of hate crimes and biased crimes. In this moment, any optimism about the question of whether we might in fact to do better than we're doing is to me at least a sign of hope, array of possibility. Not that we're in a good place now, but that we could, by being careful, rational and precise, get to a better place in the future. Until the next time I speak to you, all, be careful, be safe, and be well. Deep background is brought to you by Pushkin Industries. Our producer is Mo laboord Our engineer is Martin Gonzalez, and our shorerunner is Sophie Crane mckibbon. Editorial support from noahm Osband. Theme music by Luis Guerra at Pushkin. Thanks to Mia Lobell, Julia Barton, Lydia, Jean Cott, Heather Faine, Carl mcliori, Maggie Taylor, Eric Xander, and Jacob Weisberg. You can find me on Twitter at Noah R. Feldman. I also write a column for Bloomberg Opinion, which you can find at Bloomberg dot com slash Feldman. To discover Bloomberg's original state of podcasts, go to Bloomberg dot com slash podcasts and if you liked what you heard today, please write a review or tell a friend. This is deep background

Pushkin from Pushkin Industries. This is Deep Background, the show where we explore the stories behind the stories in the news. I'm Noah Feldman. Several weeks ago, the nation was shocked and horrified to hear about shootings in Atlanta, Georgia, where twenty one year old man went to three day spas or massage parlors and killed eight people. Six of the victims were of Asian origin, and many people are wondering if and whether the gunmen will be charged with committing a hate crime alongside charges of murder and aggravated assault. But hate crime charges are relatively rare and they can be challenging to prove in court. In twenty twenty, Georgia became one of the last states in the country to enact an anti hate crime That in turn raises some core questions. Why are hate crimes charges so rare? How should and do the police actually investigate and prosecute hate crime? What should we do when there are many hate crimes that may evade the legal criteria despite appearing on the surface and maybe beneath to be racially motivated. All of these are questions that connect to the theme of power, which is our central theme this year On Deep Background, they raise the question of the state's power to react to racial and other forms of bias, and of the capacity of our society more broadly, to exercise societal power over and against the power of hate. Today's guest is an expert on precisely these topics. Doctor Jeanine Bell is professor of law at Indiana University. She's a nationally recognized scholar in the area of pleasing and hate crime. She wrote a book called Policing Hatred, Law Enforcement, Civil Rights and Hate Crime, and ethnographic investigation of a big city police hate crime unit. Today, on Deep Background, she's going to talk to us about hate crimes laws, when and how they came, about how they can and should be enforced, and criticisms of those laws raised by some in the advocacy community. Professor Bell, welcome to Deep Background. Ganine, thank you so much for being here. Your topic is perennially significant, and it's also very significant in the present moment. What drew you to this particular subject of expertise and study. It's it's importance is unquestioned, and it's more fortunate that you are working on it. But what personally for you made this your focus. It's interesting, you know, and this has a lot to do with my current career as a law professor. I was a political science graduate student. It was early in nineteen nineties. I was in the dentist's office and I picked up Time magazine and they had a story about a black tourist visiting Disneyland, I believe, who had been set on fire by some whites, and they called it a hate crime. I was really surprised, you know, I was familiar with acts of racist violence, but I'd never heard any notion of hate crime. So I decided to look into it, and I looked at the literature, all of the literature about this term hate crime. It was right between rav in Wisconsin versus Mitchell and all of the legal literature. You know, law professor's writings said, Oh, this silly. Nobody knows what a hate crime is. You can never tell whether something is a hate crime or not. And this is still twenty five years later, something that is a huge portion of the First Amendment literature. We can't figure out whether something is bias motivated. So that's why I do this. I wanted to ask you just to begin by giving us your working definition of what counts as a hate crime or a bias crime from your perspective, Okay, hate crimes are crimes motivated by bias on the basis of race, religion, sexual orientation, gender, gender identity. The precise categories, and it's important that you understand that they are categories, not groups. The precise categories vary by stack. Shoot, whatever hate crime statute you're looking at, it's mostly federal in state, and there are some states, like the state I'm in right now, Indiana, that prevent localities from enacting their own legislation in the context of criminal law. So even if we wish to, and I think that my particular city would probably wish to, particularly for the number of years that we did not have hate crime legislation, enact something, they cannot. They are forbidden by the legislature from doing something like that. When did federal or state governments start enacting laws that specifically punish hate crimes. In the nineteen nineties, most of the statutes were passed. This happened after the creation of the nineteen Hate Crime Statistics SECTS, which was a federal piece of legislation, So mostly in the nineteen nineties before that time, only Connecticut had biased crime legislation, and had Connecticut had it for a long time, or was it relatively new there as well, mid nineteen eighties. So these are all relatively recent in grand historical terms, although I guess there's now thirty years, almost thirty years of experience with a lot of them. Both yes and no, they're similar. Some of them are similar to federal civil rights legislation that we've had, you know, for one hundred years or so, similar in what sense, similar in targeting a particular type of terrorism bias motivated violence, and civil rights acts targets motivated violence, but without the categories. The innovation of hate crime is the adding in of the categories bias on the basis of race, religions, orientation, ethnicity, etc. Whereas the Civil Rights Statute said that it's a crime to interfere with a person's exercise of his or her civil rights, and it just so happened that many people who are committing such crimes are doing so on the basis of race, or exactly precisely, that is precisely the issue. I have a lot of, you know, in the weeds questions which will come to it a second but I wanted to ask you if at the biggest level, you had to say, how successful has this body of legislation been? And this is the body of legislation that I think you've studied as deeply as anyone living. What's the measure of whether laws like this are doing their job? And then by whatever measure that is, are they doing their job? That's a hard question. It's hard first because this is violence that goes largely unpunished, but for the existence of these particular killer pieces of legislation. Take cross burning, for instance, if someone burns across on my lawn, then there are very few criminal statutes that you can use to prosecute them. For arson, for example, you need a burned spot, right, and a lot of times when someone burns across there isn't a burned spot. And there was a famous case that I'm sure you have heard of in which the perpetrators burned across r A V burned across on the lawn of the black family that it integrated the neighborhoods. It was actually part of a reign of terror that these white supremacists had directed at the family. They'd done other things, but they eventually burned across on the lawn of the family Middle and ninth, and the prosecutor chose to use a hate crime statute because there wasn't really much else that wasn't a felony. The adult involved had pled to misdemeanors, so they didn't want to charge the juvenile involved with a felony, so they chose this hate crime statute because there isn't much else you can use for cross burning. And is that a typical situation. I mean, that's fascinating what you're telling me, because it runs sort of counter to my own intuition, which obviously was wrong. I mean, my intuition was something like, if it is under these statutes, for example, a crime to beat someone up on the basis of racial bias, then you could charge them already with the beating them beating the person up, and then you could a ad and enhanced the sentence and add a separate crime the for the bias motivations. That was my intuition. But what I hear you saying is maybe that intuition is backwards. All right, You've zeroed in on something important, but you're still not quite correct. Cross burning is unusual in the context of hate crime and the sort of lack of overlap with the regular criminal law. What about assault bias motivated assault? Assuming it is a low level crime, right, meaning I'm not seriously injured. The perpetrator beats me up terribly, but you know, I'm not really seriously I mean, it's not life threatening, and it falls into the category of low level assault. You have a couple of problems with that. The first is low level crimes are largely not investigated by the police. They just don't. Criminologists estimate that nearly eighty percent of low level crimes are not investigated by the police. It doesn't really matter that this is an assault that targets me because of my background. It's still a low level sault, and this is not a priority for law enforcement officers. So I've just been terrorized and the police are not even going to try to figure out who did it, let alone try to catch the perpetrator. So I have been terrorized, and that same perpetrator could victimize somebody else and I could certainly could be victimized again. So one of the things that hate crime laws do is they create an incentive for law enforcement officers to investigate times that they would not. I call that a success because we as society have said that these crimes are more damaging, so they should be investigated. Help me fill in how proof gets constructed by the police and argued by the prosecutors and considered by the jury in cases where it's not flatly obvious on the surface. So maybe we could take as an example the Atlanta shootings that are fresh in our minds, where a disproportioned number of the victims were Asian American and that immediately led to a national discussion about bias and hate against Asian Americans, but in which it's also conceivable that the shooters motives were not tagged specifically to the ethnic or racial characteristics of the victims, which is not to say that they weren't, just to say that it seems conceive that there's another explanation. How would we go about figuring out the way the system would determine whether those crimes, which were crimes of murder and we're serious crimes and will be taken seriously in terms of identification and enforcement, whether that is in addition a bias crime that should be charged as such. Well, I'm glad you brought up that case, in particular, if that case had been investigated by police officers who knew really anything about a hate crime, they say, all right, so there's a disproportionate racial group of individuals who may have been targeted because of bias. So what do we need to do. Well, we need to interview survivors. Let's interview survivors about what happened during the crime. The individuals who are survivors, their native language was not English. So you send in individuals who speak to the grieving survivors, grieving and traumatize survivors in their language, right, and you gather all the evidence of what happened during the crime. So if you look at the for instance, Korean language press, which actually did this, unlike law enforcement officers, they have a different story to tell about what happened. When the perpetrator came to the establishments, perpetrator said things like, and you can see this in the press. They said the perpetrator was there to kill all Asians. That's evidence of motivation. Right. You don't just interview the perpetrator and ask so why'd you do this? That's proper hate crime investigation. So you look in every location for evidence of motivation, just as you might any other crime. Murder for hire, for instance, you don't just act ask the perpetrator so, hey, anybody pay you to do this, We'll be right back. So interviewing survivors, doing so in a culturally and linguistically sensitive way is a crucial element. What else should what else is best practices for law enforcement to try to gather motive? I mean, is profiling a perpetrator, not by interviewing the perpetrator, but by talking to people a meaningful undertaking or is that more misleading than anything else? It's likely misleading, but you do talk to the perpetrators and moreover, one of the things that I think the literature is often really confused about is how secretive perpetrators are about their motives. In these cases. These are often individuals who have an ideological commitment to committing the crime. It's not as if they want to hide they're bias. And this is something that I explored with police when I was writing my first book, because I said, so, do you have all these perpetrators who you know, don't want to tell you that they were biased? And the law enforcement office of no, of course not. They're people who are biased, so they don't hide it. What's the right way to think about it where a perpetrator has let's call them mixed motives, and where a prosecutor would have to try to, I guess, impose a logic on them for purposes of convincing a jury that might not fully be present in the thought world of the person who's the perpetrator. So I mean, imagine not this case, but imagine a case where you know, someone is very a male perpetrator is extremely angry at sex workers who are women and are also members of a particular racial group, and goes and kills them. And you know, where there isn't let's say, contemporaneous evidence that he said, you know, I'm here to kill all Asians are similar. But where you know, we could infer from the circumstances that there seems to be some nature of hatred against women, there seems very probably to be racial hatred. What's the best way to think about the nature of bias where the hate is against some class of people that overlaps very much with one of the protected categories in the hate crimes legislation. Because it's a legal system, you need evidence of bias motivation, and in the mythical case that you've created, there is not evidence of bias motivation. That wouldn't suffice if someone says, you know, I'm really angry at women, that's not I mean, that's not sufficient motivated by bias? Right that crime? You know, we require particularization. Was that act motivated by your bias? We need evidence? And moreover, prosecutors are conservative. Of course, there are cases that I see plenty of evidence of bias, statements by perpetrators indicating they targeted the people because of their background, and prosecutors says, listen, a jury's not going to like this, and so doesn't bring charges hate crime charges. Do you have a feeling that in general, law enforcement, including prosecutors, are doing a reasonable job relative to what they could be doing under the law, or do you think they're under using the powers that the laws give them. Vastly under using the powers that the law gives them. Many more cases could be prosecuted as hate crime cases. Prosecutors, however, are not the largest problem. The largest problem stems from law enforcement. Law enforcement not presenting prosecutors with merely enough cases because they're low level crimes that don't get investigated, they are not reported to beliefs that it's a problem. Eighty six point one percent of law enforcement agencies in this country said in twenty nineteen that no hate crimes that had occurred in their jurisdiction, and every other figure, including victim surveys by the federal government, suggests many more hate crimes. I'm kind of shocked by that number. Eighty six point one percent of jurisdictions reported no hate crimes. Yeah, sounds wildly implausible. Yeah, now, what's the solution to this structural problem, not the reporting problem, but the under enforcement problem. The solution is actually a solution that doesn't really involve police, but rather citizens. You need victims advocacy organizations, say the Game Lesbian Anti Violence Project for instance, to start believing that police can do something and developing relationships with the police. Places where hate crime law enforcement works best are places that say, all right, we're going to use the resources that we have, which include police departments, to find the perpetrator, stop this terrorism directed at individuals, and prosecute the crimes. So in places where I saw organize victims advocacy organizations that call the police and said, hey, you know, we have a person in our community who's been victimized by hate crime, and what are you doing about it? Exactly? Those police departments are incentivized to investigate crime, create bias units, press prosecutors, present cases to prosecutors, because police are the ones responsible for investigation. Prosecutors don't do this. Can I ask you a slightly bigger picture philosophical question that I was really puzzling over. I take it that the thrust of your research is that the statutes are pretty good. The challenge is really in law enforcement. As you were saying, there might be some tools to enable advocacy groups in civil society groups to help raise the consciousness of law enforcement and put put some political pressure on them to create bias units and improve enforcement. And everything that you said makes perfect logical sense to me. Then I think of what some of my most committed and idealistic students in that I teach in my law school are saying these days, and I bet that's the same as true for some of your students. They're talking about abolition of police departments, they're talking about abolition of prisons, and beyond those concrete proposals, they're also expressing a deep skepticism of the very capacity of police and law enforcement ever to overcome systemic racial bias, and in turn, that's causing these students to be very skeptical of criminal law as a tool for improving equal outcomes in society. And so the philosophical question is, how do you relate to these movements with respect to your own research project, which has been so focused on facilitating the police doing a better job than they are doing. So again, not that you're giving them, giving the police some free paths. To the contrary, you're calling on them to do their jobs. But if they were to do their jobs, it would mean more law enforcement, more criminal laws, and potentially more prison sentences. All right, So do you think Dylan Roof should be walking around? Dylan Roof is the young man who went to the church in Charleston, South Carolina and killed I believe nine people at a Bible study African Americans, all of them praying or praying and study Bible. So I certainly do not. But I'm also not a part of the abolition movement. So there's a role then for police here, and that's the first mistake that those abolitionists make, right, we have a role for they want law enforcement all they do, and they want law enforcement in this contact right very clearly a hate crime. Law enforcement is the reason Dylan Roof is not walking around. I think that you can extrapolate Dylan Roof to the person the kid who decides they want to leave racist flyers on my lawn or burn across on my lawn, scrawl something on my garage door. I think that there's a role for law enforcement to be involved in that. And to the concern about, well, we can't trust law enforcement to do this, I've seen law enforcement do this, and if we properly incentivize law enforcement and provide them this sport they need to do this, they can actually be quite good victim advocates. So I think that it's important not to throw the baby out with the bathwater. There are law enforcement officers who are quite biased. We know this, right, but it doesn't mean that we should not expect law enforcement officers who don't have such biases to serve the public in the way that the legislators have determined they should. When you make that very compelling response to actual abolitionists, prison abolitionists, or police abolitionists, if you have had occasion too, would imagine you probably have. How is it taken? I mean, it seems so compelling to me, But again, I'm not starting from the same position as some of those critics of this. They respond by saying, listen, we can't trust law enforcement because they lock up a disproportionate number of African Americans for hate crime. And I say, well, actually, I've looked at that, right, I've looked at law enforcement that was actually doing the real work of investigating hate crime, and I did not see evidence of that. Show me law enforcement that is actually doing its job with respect to hate crime, and show me that they are disproportionately enforcing the law. You are just assuming because large numbers of African Americans, more than you think should be, are being arrested. And I say that's a problem that you need to correct with law enforcement, as opposed to again saying we shouldn't do this at all. When you work with law enforcement, I take it that sometimes you're wearing a pure researcher hat and sometimes you're wearing an advisor, guide advocate, help them do a better job hat, And maybe it's possible to wear those two hats simultaneously. I was wondering in either of these modes. What reception do you have you had personally as a scholar and a researcher and sometime activist in encountering police when you discuss with them, you know, this is how you can do it better. This is what you're not doing, This is what the point that you're missing. I haven't had that role actually with law enforcement officers. I am about to take up that role. And meaning until now you've been a pure researcher and now going to be Yeah, I'm gonna sort of try to start helping law enforcement locally, at least locally with the issue of hate crime and to boost reporting of hate crime, because that's another thing that law enforcement can do to better address the issue of hate crime. They can have someone on the other end of the line when people call and who is not a Joe Friday, just the facts man. And when you say you're about to take up that role, it sounds like you've already done the first steps of talking to them about how that might be doable. Oh. Yes, in part because I've experienced this. I was walking, you know, in the neighborhood, and someone yelled something out of a car. I knew because I teach the First Amendment that this was not a hate crime, but it was unpleasant, right. So I told a bunch of people about it, and one person that I told about it said, you need to report that to the police. I said, oh, come on, not good. Heavens, you know, I know more about the police and hate crime than most people. We don't even have a hate crime statute, not reporting. She said, listen, the police want to know about this. So I called the police, feeling quite foolish about this, and had an encounter with the law enforcement officer supposedly randomly who really got it about how to take information about incidents like this. He understood quite well the power of the police in these sorts of situations. You've mentioned increasing reporting as a desirable objective, and I want to to ask you about and this is whearing your social scientist analysts had. When we do see a rise in the reporting of hate crimes, do you tend to interpret that as just more consciousness, more people doing what you did and reporting things, police being more receptive to taking reports, or do you see it as reflecting background conditions that they're actually might be rising numbers of hate crimes in the United states in their current moment, because obviously the public wants to know which of those two things is happening. Even if it's inherently good for more crimes to be reported, we also want to know if there's more hate crime happening now or not. Well, if I know something about changes in procedures among police departments, then I will see it as better policing. But in the absence of any evidence that suggests that police are doing anything differently, I don't know where to place it. I really don't because the data is very, very bad. The data includes not just police reports right the FBI, the bad data collected by the FBI. But there's a center in California, the Center for the Study of Hate and Extremism, that also collects data. Southern Poverty Law Center collects data. There was a media organization also collecting data and just recording incidents. So those are fairly stable sources of data that don't have They have some problems, but they're different types of problems than law enforcement. So if the sorts of data show rises and the FBI data shows a rise, then that suggests that there's a lot more activity. That suggests there has been a rise so you pair the law enforcement data with other sorts of data, and that you would say, is suggestive that there actually is a rise out there, not just a rise in reporting, but aine a genuine rise in light of what's going to interactundring today. Yeah, exactly, to return for a moment to the Atlantis shooter, who has not presently been charged with a hate crime, you were saying that with better evidence collection and more expertise, law enforcement could well have been able to gather information, might still be able to gather information in a better way they would enable a hate crime to be charged. And I guess I'm wondering in the real world, what would it take for law enforcement to gather that information, and what information would it take to convince law enforcement to bring such a charge, And then what bigger picture difference would emerge in the world if his crimes were charged not only as crimes of murder but also as hate crimes. A bias unit in the police department or in area police departments, or some sort of special focus on hate crime in the area, some targeted attention to hate crime investigation would lead to a change in the way that they investigate crime. And it doesn't matter for offense. He will be at some point charge with multiple murders, multiple accounts of first degree murders. But it matters to the individuals who are targeted by the is violence and by individuals targeted. I'm talking about the entire community. Asian Americans all over the country are reeling from this, and it does violence to their pain. To say that it's not motivated by bias says that someone can go in and target a bunch of you and we can say, oh, having a bad day, that is awful. That's a very powerful answer. I want to thank you so much for the interview and also for your much more importantly, for your terrific and fascinating work. I learned so much from reading it and learn so much from a conversation. Thank you, Thank you so much. Listening to Professor Jeanine Bell was eye opening for me because of the precision that she brings to analyzing both the data around hate crimes and the technical legal issues that surround the decisions to investigate and to prosecute. I was stunned to hear her say that in a recent year, eighty six point one percent of the criminal jurisdictions in the United States reported to the FBI that they had experienced no hate crimes, and although I would love to live in a country where that was the actual reality, I seriously doubt whether we do live in such a country. It was also a very striking that she pointed out that where prosecutors and police don't have experience in investigating hate crimes, they might miss some of the most basic sources of evidence, including, for example, sympathetically interviewing victims and survivors of hate crimes in order to find out what evidence they have to offer about the motives of the people who committed the crimes in the first place. Overall, I can see why Professor Bell is so focused on encouraging police departments to develop expertise and distinctive hate crimes units who will have the relevant institutional experience and their elevant knowledge of how to go about investigating hate crime in order to then bring those crimes to prosecutors to be brought before juries. A further perspective that Professor Bell brought that was extremely interesting to me was her gentle pushback against those prison abolitionists and police abolitionists who are skeptical of the capacity of hate crimes to actually enhance racial justice. Professor Bell made the point that we all surely think that terrible murderers like Dylan Roof need to be put in prison, and that from there one must embrace at least the possibility that by enforcing hate crimes legislation more completely, more fully, and more fairly, we actually could improve the state of criminal justice with respect to race. Finally, I was struck that even in our terrible moment, where there appears, based on the data, to be arise in hate crimes around the country, she is nevertheless ultimately optimistic about the possibility that our criminal justice system could improve going forward by doing a better job with respect to the enforcement of hate crimes and biased crimes. In this moment, any optimism about the question of whether we might in fact to do better than we're doing is to me at least a sign of hope, array of possibility. Not that we're in a good place now, but that we could, by being careful, rational and precise, get to a better place in the future. Until the next time I speak to you, all, be careful, be safe, and be well. Deep background is brought to you by Pushkin Industries. Our producer is Mo laboord Our engineer is Martin Gonzalez, and our shorerunner is Sophie Crane mckibbon. Editorial support from noahm Osband. Theme music by Luis Guerra at Pushkin. Thanks to Mia Lobell, Julia Barton, Lydia, Jean Cott, Heather Faine, Carl mcliori, Maggie Taylor, Eric Xander, and Jacob Weisberg. You can find me on Twitter at Noah R. Feldman. I also write a column for Bloomberg Opinion, which you can find at Bloomberg dot com slash Feldman. 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