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San Francisco DA: 'We Need More Effective Tools' To Deter Hate Crimes


What is a hate crime? And is there a need to make punishments for hate crimes more severe than they already are? As you might imagine, we're thinking about this issue after the shootings earlier this month at several Atlanta-area businesses where eight people were killed, six of whom were Asian women. And this took place against the backdrop of a surge of abuse directed at Asian Americans over the past year.

Lawmakers in Congress have introduced new legislation, the COVID-19 Hate Crimes Act. And President Biden has urged them to get it passed. That would mainly improve reporting standards. But some activists are calling for more severe punishment for hate crimes. And this comes as the nation is already engaged in a parallel discussion about how past practices ended up contributing to another huge problem in this country - mass incarceration.

We wanted to talk about this with someone whose job it is to consider all of the above. So we called Chesa Boudin. He is San Francisco's district attorney, and he also co-hosts the "Chasing Justice" podcast. Chesa Boudin, Mr. District Attorney, welcome back. Thank you for joining us once again.

CHESA BOUDIN: Thank you. Great to be here.

MARTIN: Could you just say - just define it for us. What is a hate crime?

BOUDIN: Well, first of all, let me just say that there is tremendous fear and pain in the AAPI community right now. And we condemn violence and acts of hate. We know there's been a surge in hate acts and in hate crimes, driven in large part by President Trump and the sort of permission that he gave to people to spew hate and to advance violence and xenophobia, particularly targeting the AAPI community. And we stand together with San Francisco's AAPI community. We stand with this country's diverse communities against hate. We are doing everything in our power to make sure that everyone is and feels safe in our communities.

Hate crimes are, in essence, a crime, whether it's a vandalism or an assault or a robbery that is additionally motivated by the identity of the victim. So from the standpoint of a lawyer, of a prosecutor, in order to charge and prove a hate crime, we have to show that the underlying crime occurred, who committed it. And, additionally, on top of the usual burden and standard of proof, we also have to show exactly what was in someone's head at the time they committed the crime. We have to prove beyond a reasonable doubt that they targeted the particular victim they chose because of that victim's protected identity rather than any other possible reason.

MARTIN: I understand it's actually hard proving a hate crime in court. Is that true?

BOUDIN: That's very true. And it doesn't mean that hate crimes don't occur all the time. But we know there's a challenge with reporting. We know there's a challenge with investigating. Police and sheriffs are not always looking for the kind of evidence that prosecutors need to establish what was in someone's head when they committed the crime. Usually, they're documenting that a robbery occurred, who did it, what was taken. They're not always - in fact, rarely are they asking the questions that we would need to establish exactly what was motivating the crime.

And so the kind of evidence we look for is things like - was a racial slur made at the time of the attack? Were there text messages or social media proving racial bias? Is there a history of similarly targeting victims of the same identity? Those are the kinds of pieces of evidence that we need. And often the community feels very strongly that a particular crime was motivated by hate. And they may be right.

But absent concrete evidence, it's unethical for us to allege a hate crime allegation. And when the evidence isn't there, we go with the underlying criminal act. And that is often more than adequate to hold someone accountable. But it's not always enough to make a community in fear and in pain feel heard.

MARTIN: Well, I was going to ask you about that. Let's say there is an assault, and you have found the responsible party. And you've had incidents like this in the Bay Area. But no words were necessarily exchanged, but a crime was committed. An assault was committed. Some act of violence was committed or some wrong was committed against a person. If the person is found responsible, they're going to be held accountable anyway, right? That could include incarceration. So what difference does a hate crime designation really make?

BOUDIN: It depends a bit on the particulars of how the case is charged. But if you take a serious felony assault, the defendant, the person accused in California law is looking at between four and five years, potentially more depending on the facts of the case. Adding a hate crime allegation and proving it could add another three years of potential prison exposure. Now, that assumes that we're giving people the maximum punishment. It assumes we're able to prove beyond a reasonable doubt each and every element.

And so, often, we don't really need that extra sentencing exposure. I think it - you know, this really dovetails with a broader national conversation about whether pushing longer terms of incarceration actually advances safety. Is it actually preventing people from being targeted because of their race or their language group?

We know that prisons are not places that really address racial bias. In fact, they exacerbate it. We know from decades of research by criminologists that longer sentences are not effective. Enhancements do not deter crime; they punish it. And so if we're thinking about prevention, hate crimes are really, really important to make communities feel heard. But they're not particularly important for prevention and deterrence.

MARTIN: So this is all taking place as - you know, as you've defined it, as we've just been talking about, on the one hand, communities want to know that their fellow citizens take it seriously when somebody harms them, right? They want to make sure that people understand if they're being targeted, that they are being targeted and that the community takes it seriously. On the one hand, there was this push right now to address mass incarceration for people to take a fresh look at the way these issues are approached. And I'm wondering whether people are able to have that conversation at the same time.

BOUDIN: Many people are, but it's certainly a challenge, you know? When people are scared and hurt, often, they call out for retribution and revenge. And we know that does not address the root causes. We know that doesn't eradicate racism or discrimination from within our communities. But it is, sometimes, what individual victims want but not always.

We filed a hate crime case last week. And the victim was quoted in the press as specifically saying, you know, we've all been through difficult times, and maybe the person who attacked me has a story. And maybe - you know, maybe that's something that should be considered, you know? Everyone is different. And I think this idea that there's just one voice in the community is misleading.

MARTIN: But how would you encourage people to think about this? I mean, because many groups have lobbied for hate crimes protection, in part because they want the statement of opprobrium. They want a statement of - they want - it's an expression of community, concern and outrage about a group being targeted for being a part of that group. On the other hand, as we said, there's a parallel move in this country to stop looking at incarceration first as the way to address social ills, right?

So can you give us some sort of takeaways? If you're listening to this conversation now and you're thinking, I don't like what I'm seeing. I feel afraid, you know? I live in an area where I see that people who look like me have been targeted, how do you suggest that people think about this?

BOUDIN: We need more effective tools to intervene, to prevent, to deter and to detect crimes. But at core, like so many other issues of public safety, this is about addressing root causes. Jails and prisons may play a role, certainly when someone commits a violent crime. My office will take whatever steps are necessary, consistent with the law to hold them accountable. But we also know that we need to work together. We need to come together. We need to educate. We need to expose our children to different ideas and value systems. And if we don't do that, we are going to continue to see and to feel the fear that comes from crimes committed based on victim identity.

MARTIN: That was San Francisco District Attorney Chesa Boudin. He also co-hosts the "Chasing Justice" podcast with Rachel Marshall. Mr. District Attorney, thank you so much for speaking with us today.

BOUDIN: Thank you. Have a great day. Transcript provided by NPR, Copyright NPR.