(CN) – Federal authorities say they plan to pursue hate crime charges against the 21-year-old white man accused of shooting and killing 22 people – most of them Latino – at a Walmart in El Paso, Texas, less than two weeks ago. But research shows such prosecutions have been relatively rare over the past three decades and have dropped in recent years.
According to a police affidavit, suspected gunman Patrick Crusius confessed to the Aug. 3 massacre before telling police he had explicitly targeted “Mexicans.”
In Texas, Crusius is facing a capital murder charge, though authorities said Monday he has yet to be indicted as an investigation continues.
Federal charges are still pending, but an analysis released Monday by Syracuse University’s Transactional Records Access Clearinghouse, or TRAC, shows if the government does indeed pursue a hate crime case against Crusius, it would be out of the norm.
According to the analysis, hate crime cases were referred to the federal government for prosecution almost 2,000 times over the past decade, but only 15% of those referrals actually led to prosecutions.
“It can be really hard to prove these cases,” Kami Chavis, director of the Criminal Justice Program at Wake Forest University, said in an interview.
The FBI said last November that hate crime reports were up 17% in 2017 from the year before, marking the third consecutive year of increases.
In 2009, Congress passed legislation that expanded federal hate crime protections to include gender, gender identity and sexual orientation, and paved the way for the federal government to pursue more hate crimes cases.
But even with that law on the books, Chavis said, prosecutors still have to convince a jury that a suspect was specifically motivated by hate, which can be harder than just proving a suspect was responsible for a crime.
“It’s a big gamble,” Chavis said. “When we see something like the El Paso shooting, where you have the suspect, he’s alive, and he’s told you what he’s done, I mean that is a rare case.”
The annual number of federal prosecutions of hate crimes has fallen slightly since the late 1980s, according to TRAC, but the decline in the number of cases referred to federal prosecutors has been even more stark.
From 1986 to 1991, the feds received more than 1,000 hate crime referrals each year, the analysis shows. That number dropped to fewer than 100 a year from 2014 to 2019.
Still, that doesn’t necessarily suggest the government is abandoning the job of enforcing hate crime laws. Rather, according to Chavis, it’s possible that the number of referrals has dropped through the years as states have passed or expanded their own hate crime legislation, giving them more power to prosecute hate crimes at the state level.
“There are a lot of states that had no hate crime protection [in decades past], or limited protection for limited groups,” Chavis said. “So that’s where you’d get those referrals to the federal government, because the state didn’t have any protection.”
States may have more power now to pursue hate crime cases than they used to, but that doesn’t mean they’re aggressively using that power.
An investigation from ProPublica in 2017 detailed how potential hate crimes reported to police in Texas rarely lead to successful state-level hate crime prosecutions, despite state lawmakers’ efforts to crack down on such crimes.
At the national level, TRAC’s analysis found that the FBI has historically led the way in referring hate crimes for federal prosecution, though the bureau sometimes does so as part of state or local joint task forces investigating crimes.
“We have seen a decline in FBI referrals in quite a few areas over the long haul,” Susan Long, co-founder and co-director of TRAC, said in an interview. “It’s not just hate crimes.”
Long said her organization has not specifically researched what has contributed to that trend, but resources are likely a factor, especially considering how the FBI’s responsibilities have grown since the 9/11 terrorist attacks.
“There’s only so many hours in the day and resources,” Long said. “Federal prosecutors can’t prosecute everything, nor can federal investigators investigate every crime.”
The day after the massacre in El Paso, Western Texas U.S. Attorney John Bash said his office was “seriously considering” federal hate crime charges against the suspect, while also treating the attack as domestic terrorism. Bash said his office would conduct a “methodical and careful investigation.”
Of the deadly shooting, Bash said, “it appears to be designed to intimidate a civilian population, to say the least.”