States should follow New York’s lead in the fight against racial terror

Over a few shorts weeks this summer — as we neared the 18th anniversary of the 2001 terrorist attacks on the U.S. — young white Americans ended 34 lives during three unrelated mass shootings across the country. While identifying a definitive motive can be a challenge in the aftermath of any crime, there were striking similarities between these shootings. In El Paso, Texas, the gunman espoused white nationalist, anti-immigrant views in a four-page manifesto published online less than 30 minutes before his attack. In Gilroy, Calif., the shooter posted racist messages and glorified white power literature on social media.

Since 2009, three out of four killings by extremists in our country have been perpetrated by white supremacists. Last year there were more murders by white supremacists in the United States than during any year since 1995 when a white power activist took 168 lives in the Oklahoma City bombing.

Given the increased threat of mass shootings, many law enforcement officials have recognized that existing federal terror laws are inadequate. This year, Thomas Cullen, U.S. attorney for the Western District of Virginia, wrote in the New York Times that “there are steps that can be taken to help the police and prosecutors address this growing threat — including, on the federal level, a domestic terrorism law.” Unfortunately, Mr. Cullen’s own higher-ups in the Trump administration have been too hesitant to fully commit the tools and resources required to stop this terror.

In the absence of an adequate response from the federal government, local prosecutors and state legislators must spearhead the fight against the scourge of white supremacist terrorism. 

And New York is leading the way. On Aug. 15, New York took a critical step forward through Gov. Andrew Cuomo’s proposed Hate Crimes Domestic Terrorism Act, which would elevate penalties for violent crimes committed by white supremacists and create a domestic terror task force. 

The proposal builds on an existing state law that already provides national leadership, demonstrating a potential solution in light of the unlikeliness of federal action. In February in Manhattan, James Harris Jackson — who in 2017 killed an innocent black bystander with the explicit intention of igniting a race war — was  sentenced to life in prison without the possibility of parole under New York’s Murder as a Crime of Terrorism statute, which never before had been used in a case of white supremacist terror.

Jackson’s prosecution is one of the few times in American history that a white supremacist has been convicted of an act of terrorism — even though 33 states have applicable terrorism statutes. 

Imagine if a similar statute were used last year in Tennessee when prosecuting a man who set fire to his African American roommate at a veterans home and confessed to the crime in a private letter to a white supremacist group. Or in the prosecution of a member of the neo-Nazi group Atomwaffen who killed four African American customers of a local Waffle House. Or for any of the growing list of cases that were not prosecuted as terrorism, including widely covered crimes such as the massacre of Sikh worshippers in Wisconsin in 2012, Dylann Roof’s racial killings in South Carolina in 2015 and Robert Bowers anti-Semitic attack at a Pittsburgh synagogue last year. 

If killers such as these are not punished as terrorists under our nation’s federal laws, states can — and must — rise to meet the obligation.

Of course, there are sound legal considerations when classifying an act as a hate crime (intended to manifest hatred for the specific victim based on their identity) or an act of terror (intended to cultivate wider fear among a specific community). But all too often, even when there is evidence of terrorist motivation, cases such as the ones above are charged as hate crimes instead of terror — which is distinct in its intent, effect and collective moral condemnation. 

The reason for holding violent white supremacists accountable for terrorism is not simply the validation of the dignity and safety concerns of historically victimized communities. Designating these crimes as acts of terror also means more investigative resources and more ways to understand (and ultimately diffuse) this growing threat. We cannot adequately prevent and respond to a threat we do not accurately track and understand. 

We should be using the full extent of our legal resources to bring violent followers of white supremacy to justice, before they claim even more lives. Prosecutors in states that have domestic terror statues have the power to follow New York’s lead, and states without comparable terrorism statutes can and should pass them, enabling their prosecutors to do the same.

Lucy Lang is executive director of the Institute for Innovation in Prosecution at John Jay College of Criminal Justice. She served as an assistant district attorney in Manhattan for 12 years, most recently as special counsel for policy. Follow on Twitter and Instagram @LucyLangNYC and  @IIP_JohnJay.