Imagine this hypothetical, you and I make plans to play tennis. Initially, we meet at your home and we travel to a tennis court. I have a bag slung over my shoulder and carry a tennis racquet in my hand. We get along well but haven’t seen each other for months. As we walk towards the tennis courts and pass many people, I reach back with my racquet smack someone squarely on the face and continue walking as if nothing occurred. This stuns you. You are shocked; you know me to be a reasonable person. This is not anything you can comprehend. I still have the racquet in my hand, so you’re reluctant to say anything. We continue walking.
As we make our way to the courts, we pass many more people. However, you’re still in stunned by the event that transpired. As your mind is racing and contemplating what you should do, I again reach back and this time I strike someone squarely on the knee. They collapse on the ground and cower in fear. You are still in shock and continue to walk but put more distance between us. This continues.
We finally arrive at the courts, and you relax a bit. Meanwhile, we play on opposite ends of the court, with the length of the court and a net between us. I have subsequently not uttered a single word about the assaults, I simply reach back and whack people. In fact, you can see some of their blood from their injuries on my racquet.
Oh, incidentally we’re in Harlem, NY, where 18.41% of the population is white. Every single person I assaulted is white. Wouldn’t you therefore call this a racist incident? Or allow me to frame this differently, in the absence of a racial slur, how many white people would I need to attack before you’ll think the term ‘racist’? How many wounded before this becomes a ‘hate crime’? Is it 1? 2? 15? Give me a number.
The ‘why’ matters
The how and why something occurred matters as much as what happened. For instance, here’s a what happened: Someone was killed. Here are a few different instances of how and why:
- You drive on the freeway; someone checks their phone and accidentally wanders into your lane. Unable to react quickly enough, you crash into their car; they die from their injuries.
- You’re driving home from dinner after having five drinks; you’re driving under the influence. A pedestrian crosses the street. You kill them on impact.
- You’re driving down the freeway, and someone cuts you off. They piss you off, and you tailgate them. You run them off the road; they strike a tree as they go off the road. They die from their injuries.
- Your boyfriend has been cheating on you. You’ve figured this out from his texts. You follow him in your car. He meets a woman in the parking lot of a hotel. They kiss and start walking to the entrance of a hotel. You run them over with your car, killing them both.
The first is simply an accident, it likely won’t be prosecuted as a crime. The others involve questions of negligence and premeditation. One is vehicular manslaughter, second degree murder, and first-degree murder. All involve people being killed, but the how and why are very different. Specifically, they are prosecuted differently and sentenced differently. At the end of the day, we want to know why because knowing why someone commits a crime helps us mitigate the likelihood of it occurring again and to whom.
We treat hate crimes differently
To be perfectly clear, assaulting anyone is criminal. I’m sure that a competent attorney can make the case that this, my attacks with the tennis racquet, qualifies as ‘assault with a deadly weapon’. We’ll make exceptions for instances where someone breaks into your home and endangers your life, but generally attacking anyone with a weapon is a crime.
If I’m whacking people in the streets with a tennis racquet, understanding why I’m doing that matters. In fact, we’ve passed the Hate Crime Acts that prosecutes hate crimes more severely than the act itself, again because it helps us mitigate the likelihood of it occurring again and to whom.
I’ve watched enough crime shows where the detectives will often talk about motive when looking at suspects. I know that on some level we say that we want to know this and to some degree we mean it. I have friends and family who are gay. I’d like to know that if there were someone who was targeting them in their community, they’d be prosecuted to the fullest extent of the law.
Do we really care?
There has been a sharp rise in crimes against Asian-Americans in recent months. Any such violence is criminal, but what makes many of these tragic are instances like this one, where they target the elderly. While anecdotal, most of the authorities report that they won’t prosecute these as hate crimes, which will incur a more severe sentence, because the attacker never uttered a racial slur.
In the example of the 84 year-old grandfather above, the explanation given was ‘some sort of temper tantrum’. Is this a sufficiently plausible explanation for the death of your loved one? Is this your standard of evidence? …what he said?!
Police: Did you rob that bank?
Suspect: No.
Police: Well, I’m satisfied.
Yes, that’s how absurd this all looks to our community. Naturally, ‘some sort of temper tantrum’ is enough to dodge the charge of hate crime. Let’s put this in perspective, the the police questioned the Central Park Five for 30 hours when the teens were coerced into falsely confessing. They were subsequently exonerated by way of a confession from the actual perpetrator and DNA evidence. Of course, those particular suspects were people of color, and the victim was white.
Why not just prosecute hate crimes by statistical probability?
Why don’t we decide if something qualifies as a hate crime, not by the uttering of hateful slurs, but by simple statistics? I know what some of you are thinking… Oh, we can’t do that, we have to know that they’re guilty. First, we ‘knew ‘that the Central Park Five were guilty. Whoops! Second, we never really know. Even the rule for convictions states ‘guilty beyond a reasonable doubt’. Third, we do this all the time, we call it circumstantial evidence. We convict many suspects this way.
For instance, let’s go back to my tennis racquet example. Harlem has a 18.41% white population, so picking any one person at random there’s .1841 to 1 chance that this person is white; this is just the definition of what percent means. What is the chance that if I picked three people at random, they’d all be white?
0.1841 * 0.1841 * 0.1841 = (0.1841)^3 = 0.006239666321 or about 1 in 160. It’s about 1/2 of one percent.
Sure, that sounds small, but how small is it? Go get a coin, flip it seven times (no more, no less). You’d be shocked if you got tails for all seven of those coin flips, right? Well, guess what…
(0.5)^7 = 0.0078125 or 1 in 128. Yes, this is more likely than picking three white people at random.
This is basic probability. Curious about the formula? Here it is:
Tails coin flips = Count of random white people in Harlem * log(0.1841) / log(0.5)
So four people at random is less likely than nine consecutive tail flips, five people at random less likely than twelve consecutive coin flips, etc. By the time you get to six white people at random in Harlem, the odds are about 1:25,684. Sounds unlikely right? Well, to put it to scale, that’s more than 2.5 times less likely than being injured by a toilet.
So when you take all that into account, you can come to the conclusion that I attacked three white people at random, when the odds of that are less than one percent. Or you can conclude that I attacked these three people because they’re white and not at random; this therefore makes them hate crimes.
What probability is beyond reasonable doubt?
On March 16th, 2021, Robert Aaron Long shot and killed eight women in the Atlanta area; six of them were Asian. Certainly these facts are not under debate. Eventually, they charged him with the killings but also for hate crimes against women. However, he is not charged for hate crimes against Asians. Hmm… Really?
Let’s do the math. First, let’s do the number of combinations where you choose 6 of 8 to be Asian. Use the formula, and the number is:
8! / (6! * 2!) = 28 combinations
The combinations are only going to increase your odds. However, if you look at the racial demographic of Atlanta, only 3.7% of the population is Asian. Now, let’s combine and do the math on both:
(0.037)^6 * 28 combinations = 0.000000071840339452 or about 1 in 13,919,756
This is less likely than being killed from parts falling from an airplane (1 in 10,000,000). If we go back to the coin flip analogy, if you were to flip a coin precisely twenty-three times (no, that’s not a typo) and get tails on all of them that is still more likely than shooting six Asian people out of eight at random in the Atlanta area.
As a result, do you doubt that these were hate crimes against Asians? Is the uttering of one single racial slur magically make it more credible to you?