On April 27, 2019, a white supremacist armed with a high-powered rifle walked into a San Diego synagogue and shot four people, one fatally, before fleeing and finally surrendering to police. A letter the gunman allegedly posted online shortly before the shooting claimed credit for a previous arson attack on an Escondido mosque, spewed racist “white genocide” conspiracy theories, cited earlier white supremacist attacks against a synagogue in Pittsburgh and mosques in New Zealand, and urged like-minded white Christians to commit further acts of violence.
Was this crime an act of terrorism, a hate crime, or just another homicide? Under current Justice Department policies, how far-right violence targeting people based on race, religion, national origin, gender, sexual orientation, gender identity, or disability gets categorized is often arbitrary. But it has significant consequences for how federal officials label these crimes in public statements, how they prioritize and track them, and whether they will investigate and prosecute them. As a result, the Justice Department doesn’t know how many people far-right militants attack each year in the United States, which leaves intelligence analysts and policy makers in the dark about the impact this violence inflicts on our society and how to best address it. More importantly, the failure to properly label and respond to far-right violence deprives victimized communities of basic human dignity and equal protection of the law.
Developing more effective federal policies to address far-right violence requires a new approach that better protects vulnerable communities from all forms of violence and utilizes restorative justice practices to remediate the communal injuries that these crimes inflict.
Attacks like the San Diego synagogue shooting often fit the federal definitions of both domestic terrorism and hate crimes, as well as state violations like murder. Laws governing these crimes all carry substantial penalties, but how the Justice Department initially labels them becomes important chiefly because its policies de-prioritize hate crimes investigations. Terrorism investigations are the FBI’s number one priority and are well-resourced. These investigations tend to look broadly to determine if an ongoing criminal organization may have supported the attack or be planning new ones. In contrast, civil rights violations like hate crimes rank fifth out of eight priorities, and investigations tend to focus narrowly on a particular attack or attacker. To make matters worse, the Justice Department defers the vast majority of hate crimes investigations to state and local law enforcement without any federal evaluation to determine if the perpetrators are part of a larger violent far-right group. State and local law enforcement are often ill-equipped or unwilling to properly respond to these crimes.
The Justice Department also regularly treats white supremacist violence not as domestic terrorism or hate crimes, but as gang crimes, which rank sixth on the FBI’s priority list. The Justice Department has made no effort to comprehensively account for all incidents of far-right violence across these different program categories to reveal the full scope of their impact on American society.
Though far-right attacks represent just a tiny proportion of the violence that takes place in the U.S. each year, they require specific attention because they pose a persistent threat to vulnerable communities, particularly communities of color, immigrants, LGBTQ people, women, the disabled, and religious minorities. These communities are already disproportionately victimized by other violent crimes, including police violence, much of which is never prosecuted. Moreover, the organized nature of far-right groups that often commit this violence allows them to quickly replace any member who is incarcerated and to carry out further acts of violence after any individual crime is successfully prosecuted. Finally, since far-right attacks are intended to inflict injuries beyond the direct victims by threatening and intimidating entire communities of people who share similar attributes, they demand a more comprehensive and strategic government response. Simply increasing criminal penalties for these perpetrators does little to redress the broader social injuries that result.
Current and former Justice Department officials have been calling for a new domestic terrorism statute to combat far-right violence, but there are already dozens of federal statutes carrying severe penalties that are available to investigators and prosecutors pursuing these crimes, as detailed in our earlier white paper, Wrong Priorities for Fighting Terrorism. 2 Which of these statutes prosecutors ultimately charge in a particular case is far less important than how Justice Department officials label these attacks in public statements when they occur, and how they prioritize, resource, and track the investigation and prosecution of these crimes. Under current policies, when Justice Department officials call far-right attacks hate crimes or gang crimes and place them far down their priority list, they are sending victimized communities the unmistakable message that the government values their lives less. The Justice Department doesn’t need new laws, it needs new policies. Moreover, the Justice Department has repeatedly abused its domestic terrorism authorities to target environmental activists, peace advocates, and civil rights protesters, raising appropriate concerns about how it would use any new powers Congress might provide.
The purpose of this white paper is to examine how Justice Department policies regarding far-right violence undermine our nation’s security by discounting the safety concerns of American communities victimized by this reactionary violence and official indifference. The federal government’s failure to ensure equal protection of the law erodes community resilience and social cohesion. While a full assessment of the true nature, scope, and impact of far-right violence is necessary to develop sound strategies to address it, as our first white paper argued, this does not mean policy makers must wait passively until this data is fully collected. This paper argues for exploring new approaches to the problem of far-right violence, not only to address the present policy failures but to determine whether our traditional legislative approach to hate crimes — increasing criminal penalties is effective in reducing the harms from far-right violence.
Part 1 of this paper summarizes the legal framework Congress has established to address far-right violence.
Part 2 explains the nature of the threat from far-right violence and the many tools federal prosecutors have to address it.
Part 3 shows how Justice Department policies de-prioritize far-right terrorism as a national security threat, ranking it behind cases it labels “international” terrorism and those directed at domestic protest groups. These policies label a significant portion of the violence committed by far-right militants as “hate crimes” rather than terrorism before any federal evaluation of the incident takes place, and defer the investigation, prosecution, and tracking of these crimes to state and local law enforcement. While state prosecutions may ultimately be determined to be appropriate in many cases, by abandoning the responsibility to examine and account for these crimes the Justice Department blinds itself to the true scope of the threat. This practice also deprives the federal government of an intelligence base necessary to develop an effective strategy to target far-right violence.
Part 4 describes the obstacles that prevent state and local law enforcement from effectively responding to hate crimes and the failure of the Uniform Crime Reporting system to accurately account for this violence nationally.
Part 5 focuses on the lack of trust between law enforcement and minority communities who suffer disproportionately from police violence and abuse as well as a lack of attention when they are victims of violent crimes, which may inhibit hate crime reporting to the police.
Part 6 examines the efficacy of the current punitive approach to hate crimes legislation, showing its failure to effectively deter future crimes or assuage the concerns of the victimized communities.
Finally, Part 7 provides recommendations for a new approach to hate crimes focused on understanding the threat of organized far-right violence, reforming police practices in minority and disenfranchised communities, and developing restorative justice approaches to address the communal injuries caused by these attacks and build a more tolerant, secure, and resilient society.