Updated on April 16, 2021
Anti-Asian Attacks and Attempts to Redefine “Hate” in America
Ryan Gordon is a 3L at the University of Kansas School of Law. He earned his Bachelor of Arts in Business Administration with a focus on International Business and Marketing from Truman State University. Ryan is interested in international transactional and development work and corporate law. Outside of law school, Ryan enjoys reading history books, taking walks on the trails around Lawrence, and supporting Sporting KC.
On March 26, 2021, a white male gunman opened fire on three small businesses in metropolitan Atlanta, killing eight people, including six women of Asian descent.[i] The attack follows a year of rising violence against people of Asian descent during the COVID-19 pandemic.[ii] Following the spike in hate-based violence since the start of the pandemic, some states,[iii] and the federal government,[iv] have introduced new or updated hate crime legislation.
The proposals attempt to address the flaws in the application of hate crime legislation. The proposed federal law expands hate crimes to include crimes motivated by “the actual or perceived relationship to the spread of COVID–19” attributed to an individual member of a protected class.[v] Notably, it also requires the Attorney General to issue guidance for state and local police on “establish[ing] online reporting of hate crimes or incidents, and to have online reporting available in multiple languages.”[vi]
However, even as states and the federal government improve hate crime legislation, the legislation itself merely treats a symptom of America’s systemic bias. While this type of legislation is without a doubt applicable in a modern America so divided by vitriol and prejudice, the question remains: Are such reforms genuine attempts at addressing the hate-based violence, simply political maneuvers to avoid addressing the systemic racism in America?
If hate crime legislation produces positive change, it should be enacted and enforced. However, implementing hate crime legislation must be coupled with policies to address the systemic bias at the root of these attacks. Past efforts at hate crime reform have failed in this regard.[vii] While the final details of the most recent reforms have yet to be realized, they too will likely shy away from any real systemic change.
Twenty years ago, Claudia Card argued hate crime reform permits the government to “shirk responsibility for dismantling systems of oppression by more severely punishing only their most blatant and violent manifestations.”[viii] She asserts perpetrators of hate crimes are seen as “scapegoats.”[ix] Individuals who allow racist ideas to flourish or use their platforms to spread racist beliefs profit from the same views that the perpetrators use to harm others.
Her statements directly apply today. Politicians and influential individuals give voice to false beliefs of superiority, use hateful rhetoric, and take positions overtly or implicitly targeting minority groups. In addition, marginalized groups have historically suffered at the hands of the justice system tasked with protecting them.[x] Enforcing hate crime legislation to protect marginalized communities can partially repair the damage done to these communities by law enforcement. But systemic reform is still needed to address conscious and unconscious bias in policing.
The COVID-19 Hate Crimes Act and other state hate crime reform bills are the first step in a long process to address Anti-Asian bias. Prosecutors should take this opportunity to enforce hate crime laws and protect marginalized communities rigorously. Politicians should avoid positions with racist undertones, and the legislature should follow up on systemic changes needed to combat the racism brought to light during the COVID-19 pandemic.
[i] See, e.g., 8 Dead in Atlanta Spa Shooting, With Fears of Anti-Asian Bias, N.Y. Times (Mar. 26, 2021, 9:19 AM), https://www.nytimes.com/live/2021/03/17/us/shooting-atlanta-acworth; Phil Helsel & Rachel Elbaum, 8 Dead in Atlanta-Area Spa Shootings, Suspect Arrested, NBC News (Mar. 17, 2021, 8:58AM), https://www.nbcnews.com/news/us-news/3-dead-shooting-georgia-massage-parlor-suspect-loose-n1261262.
[ii] Sam Cabral, Covid ‘Hate Crimes’ Against Asian Americans on Rise, BBC News (Apr. 2, 2021), https://www.bbc.com/news/world-us-canada-56218684.
[iii] See An Act to Reform the Hate Crime Statute, Mass. S.B. 1051, Gen. Ct. (Mass. 2021); Hate Crimes Analysis & Review Act, S.B. 70, 2021–2022 Reg. Sess. (N.Y. 2021); Brendan Farrington, Florida Bill Would Add Gender, Gender ID to Hate Crime Law, Associated Press (Feb. 16, 2021), https://apnews.com/article/hate-crimes-legislation-florida-crime-bills-adf0df34bd3e67491e5c4a7101943036. If passed, the Massachusetts hate crime reform bill will add both gender and immigration status to its list of protected classes. Steve LeBlanc, Anti-Asian Attacks Prompt Call for Updated Hate Crime Law, Houston Chron. (Mar. 31, 2021, 12:23 PM), https://www.houstonchronicle.com/news/article/Anti-Asian-attacks-prompt-call-for-updated-hate-16066968.php (discussing Mass. S.B. 1051).
[iv] COVID–19 Hate Crimes Act, S. 937, 117th Cong. (2021).
[v] Id. at § 2(b)(2)(B).
[vi] Id. at § 3(a)(1).
[vii] See Jace L. Valcore, Hate Crime Laws Don’t Do Enough to Address Bias or to Improve the Status of Minority Groups, London Sch. of Econ., US Centre (Dec. 7, 2016), https://blogs.lse.ac.uk/usappblog/2016/12/07/hate-crime-laws-dont-do-enough-to-address-bias-or-to-improve-the-status-of-minority-groups/.
[viii] Spencer Bokat-Lindell, Opinion Are Hate Crime Laws Really the Answer to Anti-Asian Violence, N.Y. Times (Mar. 23, 2021), https://www.nytimes.com/2021/03/23/opinion/asian-hate-crimes.html; Claudia Card, Is Penalty Enhancement a Sound Idea?, 20 Law & Pol’y 195, 195 (Mar. 2001).
[ix] Card, supra note viii, at 213.
[x] See, e.g., Rich Morin & Renee Stepler, The Racial Confidence Gap in Police Performance, Pew Res. Ctr. (Sept. 29, 2016), https://www.pewresearch.org/social-trends/2016/09/29/the-racial-confidence-gap-in-police-performance/; Laura Santhanam, Two-Thirds of Black Americans Don’t Trust Police to Treat Them Equally. Most White Americans Do., PBS News Hour (Jun. 5, 2020, 12:00PM), https://www.pbs.org/newshour/politics/two-thirds-of-black-americans-dont-trust-the-police-to-treat-them-equally-most-white-americans-do; Rick Jervis, Who Are Police Protecting and Serving? Law Enforcement Has History of Violence Against Many Minority Groups, USA Today (Jun. 15, 2020, 3:20PM), https://www.usatoday.com/story/news/nation/2020/06/13/mistrust-police-minority-communities-hesitant-call-police-george-floyd/5347878002/. Outside of the well-known distrust of police in the Black and Latino community, Asian-owned massage parlors have also been subject to abuse by law enforcement, sparking suspicion of police encounters. Bokat-Lindell, supra note viii; Kimmy Yam, There Were 3,800 Anti-Asian Racist Incidents, Mostly Against Women, In Past Year, NBC News (Mar. 16, 2021, 5:13PM), https://www.nbcnews.com/news/asian-america/there-were-3-800-anti-asian-racist-incidents-mostly-against-n1261257.