Charleston Shooting May Be Hate Crime, but State Has No Such Law

From left: Nine-year-old Liam Eller helps a police officer move flowers left behind outside Emanuel African Methodist Episcopal Church after the street was re-opened a day after a mass shooting left nine dead during a bible study at the church in Charleston, South Carolina. Brian Snyder/Reuters

Within hours of a shooting attack that left nine dead at a Charleston church, authorities deemed the incident a hate crime. As Charleston's police chief and mayor nodded in agreement, the FBI went about investigating the shooting as a hate crime on Friday afternoon and the Justice Department confirmed the plan. The general public, too, mostly agreed it was a hate crime: The suspect is a white man who made racist comments and was seen on social media wearing an Apartheid flag, and he has reportedly confessed to killing nine black people in their place of worship.

Unfortunately for all those in agreement, South Carolina doesn't have any hate crime laws on its books.

It is one of only five states not to have such a law, along with Arkansas, Georgia, Michigan and Wyoming. There's no clear explanation as to why or how these states failed to enact hate crime laws, but Jack Levin, an expert in hate crimes and criminology at Northeastern University, chalks it up to local politics.

Seth Whipper and Wendell Gilliard, both Charleston-based Democrats, are among the South Carolina legislators who have long tried to get a hate crime bill passed. Gilliard plans to introduce such legislation again in light of the shooting. "I don't care if they call it a knee-jerk reaction," Gilliard told the Post and Courier. "I got to do what I got to do."

The FBI defines a hate crime as "a traditional offense like murder, arson or vandalism with an added element of bias." This applies to cases involving race, color, religion or place of origin. In 2009, President Barack Obama expanded the hate crime law, applying it to acts of violence motivated by gender, sexual orientation, and disability. "This federal statute becomes very important, especially for trying cases in states like South Carolina," Levin told Newsweek.

While the federal government can pursue hate crime charges against Dylann Roof, the accused shooter, South Carolina can only try him for nine counts of murder and one count of weapon possession.

The state will likely try Roof only on its own, and the death penalty will be sought. However, in the event that he receives life in prison, a "hate crime enhancement penalty" could come into play.

South Carolina's prosecutors could follow a strategy similar to what was used in the case of the Boston Marathon bomber, in which one jury decided the conviction and a second the sentence. "In the penalty phase, a hate crime charge could be used as an aggravating circumstance. In the event the jury goes for life in prison, the sentence could be enhanced by the hate crime," Levin explained.

Theoretically, Roof could be prosecuted at both the state and the federal level, Mark Pitcavage, director of the Anti-Defamation League's Center on Extremism, told Newsweek. "It is unfortunate that South Carolina is one of the only five states not to pass a hate crime law, but it is still a strong criminal case," he explained. "A federal hate crime law could come into place here. In some cases, both the state and federal government prosecute; a notable example of this is with the case of Terry Nichols."

Nichols was one of the Oklahoma City bombers. He was tried twice, once by the federal government, which failed to get a death penalty, and because of this failure a second time by the state of Oklahoma, which also failed. Though this could happen in Roof's case, experts agree it is unlikely, as the federal sentence for hate crimes does not carry a death penalty conviction. The state prosecutors will likely seek this ultimate punishment, as Governor Nikki Haley made clear on Friday.

"How, exactly, he will be prosecuted will play itself out," Pitcavage said. "What we have here is a hate crime that South Carolina cannot officially recognize as such. They have no way to give respects to the victim by charging the suspect with a hate crime and that is a shame as it is symbolically significant."

Randall Kessler, a Georgia-based attorney, also pointed to the notion of the cultural significance of hate crime cases. "If you just say shooting someone is a murder, that is one thing, but to prosecute it as a hate crime, that gives you a better chance of, hopefully, discouraging people. This is an aggravated case. It should be treated as such," Kessler told Newsweek.

In addition to pursuing the Charleston attack as a hate crime, the U.S. Justice Department is investigating it as an act of domestic terrorism.