By Kevin Vo
Over the past few years, white supremacists have increased in numbers in the United States. In fact, according to the Southern Poverty Law Center, the amount of active white nationalist groups grew by nearly 50 percent last year alone, expanding from 100 chapters in 2017 to 148 in 2018. White supremacists and white nationalists bring with them a surge of hate crimes, with federal data indicating that the annual number of police-reported hate crimes increased each year from 2014 to 2017. Many acts of white supremacist violence, such as the murder of Heather Heyer at the Unite the Right rally in 2017 and the Pittsburgh synagogue shooting in 2018, have been prosecuted as hate crimes. At the same time, many acts of white supremacist violence prosecuted as hate crimes have also been labeled as “domestic terrorism” by government officials and the media. The treatment of these cases has been a source of confusion and has led some to question why the government prosecutes white supremacist violence using hate crime charges, in addition to other federal criminal statutes, but not charges of “domestic terrorism.”
To put it simply, a specific federal charge of “domestic terrorism” does not exist and nor should it. While a definition of “domestic terrorism” is codified in federal criminal law, and that definition comes with investigative authorities, there are no criminal charges attached to that definition. According to this definition, which is codified at 18 U.S.C. § 2331(5), “domestic terrorism” means activities that:
“(1) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, (2) appear to be intended to (a) intimidate or coerce a civilian population, (b) influence the policy of a government by intimidation or coercion, (c) to affect the conduct of a government by mass destruction, assassination, or kidnapping, and (3) occur primarily within the territorial jurisdiction of the United States.”
It is apparent from this definition that an act of “domestic terrorism” involves impacting a wide population for the sake of intimidation and governmental reaction. Federal hate crime laws, in comparison, focus primarily on the identit(ies) of the impacted individual(s); the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, 18 U.S.C. § 249, enumerates offenses against a person’s actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability. With this distinction in mind, it is important to note that domestic terrorism and hate crimes are not mutually exclusive and can intersect. Incidents such as the Pittsburgh synagogue shooting conform to both frameworks.
However, an explicit “domestic terrorism” charge does not need to be the primary offense in acts perpetrated by white supremacists as a means to hold perpetrators accountable, pursue justice, or inflict stricter penalties. As a 2018 report from the Brennan Center for Justice has explained, there are 51 predicate offenses listed in 18 U.S.C. § 2339A (the statute which criminalizes acts of terrorism) that can be applied in cases where crimes meet the definition of domestic terrorism. Furthermore, the report lists several other statutes—including but not limited to federal hate crime laws—that have been applied to similar cases of white supremacist violence. A case in point was the Mother Emanuel church shooting in Charleston, SC in 2015, a violent hate crime, also classified as an act of domestic terrorism. The perpetrator, a white supremacist, was prosecuted for hate crimes and sentenced to death. His conviction under federal hate crime statutes is just one of many examples for why a new statute is not required to address the increase in white supremacist violence targeting diverse communities.
So, then the question now becomes, why do some still advocate for a separate domestic terrorism charge if there are so many different yet equally effective methods to prosecute these acts of violence? Such attitudes can be partially attributed to the misplaced priorities of law enforcement agencies, like the Federal Bureau of Investigation, in providing enough resources to combat hate violence stemming from a diverse threat environment, including from white nationalists. For example, earlier this spring the FBI declared during a briefing with the Senate Judiciary Committee that domestic counter terrorism efforts will be classified under fewer categories, one of which they call “racially-motivated violent extremism.” This is a problematic term that only serves to obscure how counter terrorism resources are allocated by masking white supremacists while attempting to reify the debunked category of “black identity extremists.” Moreover, the FBI cites counter terrorism as its number-one priority and civil rights violations its fifth priority, which feeds into the perceived urgency of needing to combat terrorism over hate crimes, when in reality hate crime laws were created to address a violent history of racial terror in the United States. The FBI’s measures are a reminder of how some government agencies continue to misconstrue the reality of racial terror and its impact on marginalized communities.
For those who advocate for a separate charge of domestic terrorism, it is a seemingly easy answer to fill a “gap” in federal law. However, what is often lacking from these arguments are both the racial justice and criminal justice reform perspectives. The creation of a new criminal law would run counter to principles of criminal justice reform that address issues like racial disparities in our prison system and high incarceration rates within communities of color.
After all, if a separate charge for domestic terrorism were created, this would only further marginalize communities that have been historically impacted by racial discrimination. For decades, these communities have witnessed racial terror at the hands of white supremacists, such as the 16th Street Baptist Church bombing in 1963, during which four African American girls were killed by Ku Klux Klan members. The significance of subsequent hate crime laws enacted to address these horrific events would only be undermined by creating a separate charge for domestic terrorism—sending a message that hate crime laws that have historically protected racial minorities do not carry as much “weight” as terrorism charges. All the while national security and counter terrorism frameworks have also historically targeted black and brown communities, including Muslims. Besides the aforementioned category of “black identity extremists,” which falsely maligns the efforts of black activists, the Countering Violent Extremism Task Force, a US program established in 2011, is an instance of how governmental agencies aimed at combating terrorism can misplace their targets and actually infringe on the constitutional rights of minorities. A new law aimed at creating a domestic terrorism charge would not fix the discriminatory impact of how these counter terrorism measures have often been carried out in the past—it would exacerbate such practices.
The question finally becomes: how can we ameliorate the problems concerning and increase public understanding of the relationship between white supremacists and domestic terrorism? Instead of a separate unnecessary domestic terrorism charge, government agencies must report on the domestic terror threats our nation face as they did previously. Government agencies should reallocate their resources in order to prioritize concrete threats to our nation and not obfuscate actual targets through unclear categories like “racially motivated violent extremism.” In terms of policy changes, Congress can increase congressional oversight of counter terrorism efforts and strengthen existing hate crime laws. The Domestic Terrorism DATA Act and the Khalid Jabara and Heather Heyer NO HATE Act, both of which are currently under proposal, would increase the public’s understanding of how acts of hate and mass violence operate in our country by promoting more accurate data collection and hate crime reporting. The Lawyers’ Committee for Civil Rights Under Law supports the passage of these bills as they would improve and promote transparency without infringing on the rights of communities most commonly impacted by discrimination.
Kevin Vo is currently an undergraduate intern with the Stop Hate Project at the Lawyers’ Committee for Civil Rights Under Law. He is a rising junior at Vassar College studying History, Hispanic Studies, and Italian.