On Wednesday, according to Matt Apuzzo of the New York Times, federal prosecutors charged Dylann Roof, the alleged shooter in the June 17 massacre at Charleston's Emanuel AME Church, on 33 counts — including hate crime charges and a charge of destroying or defacing religious property.
Roof has already been charged by South Carolina prosecutors with nine counts of murder and one count of possession of a firearm during the commission of a violent crime. But federal officials believe "murder" doesn't really encompass what Roof is accused of doing — especially after the discovery of a white supremacist manifesto on a website that has been traced back to Roof. Here's what a federal hate crime prosecution means.
Roof was already charged at the state level — but not with a hate crime
South Carolina doesn't have a separate law that gives harsher sentences to hate crimes. But the federal government does: It's made willfully killing someone because of his or her race a crime that's punishable with life in federal prison. (The verbatim text of the law in question is here.)
In cases like this, where someone's alleged crime runs afoul of both state and federal law, federal and state prosecutors usually figure out which one of them is in the best position to bring a case to trial, for efficiency's sake. But in the meantime, according to Alex Little, a lawyer and former assistant US attorney, it's almost always easier for states to file charges quickly than it is for the federal government to "cobble together a complaint." That's why South Carolina prosecutors filed their charges the day after Roof was arrested, even though the federal government took a few weeks to decide how to proceed.
If the federal government files charges of its own, the state usually decides not to pursue its case. It's not yet clear that this will happen in Roof's case, but it's usually how things go.
But if prosecuting Roof in federal court instead of state court makes it possible to charge him with a hate crime, it also has something prosecutors might see as a drawback: It will be harder and more complicated to sentence him to death in federal court.
The murder charges Roof has been hit with in South Carolina are all eligible for the death penalty if he's convicted. But at the federal level, it's not so straightforward.
Roof actually couldn't be sentenced to death on hate crime charges alone. But one of the 33 crimes he's charged with is intentionally destroying religious property because of the race of those who worshiped there — and if death results from that act (as it did in Charleston), someone convicted of that crime can get the death sentence.
That puts a lot of pressure on prosecutors to make sure Roof is found guilty of that particular charge. And even then, the process of sentencing someone to death is a lot more straightforward at the state level — federal death penalty cases, as the trial of Boston Marathon bomber Dzhokhar Tsarnaev showed, can be awfully complicated. There's a whole process a federal prosecutor has to follow just to be allowed to ask the judge for a death sentence — culminating in the greenlight from the attorney general herself. (Massachusetts doesn't have the death penalty, so the only option prosecutors had for getting Tsarnaev sentenced to death was taking him to federal court.)
"South Carolina may feel they can get convictions and get justice more swiftly for the families of the victims," says Little.
It's entirely possible that federal prosecutors could decide to prosecute Roof in federal court for a hate crime and in state court for murder, as rare as that is. Or perhaps the federal government will feel it's worth the extra effort and risk to give him a federal death sentence. But from a prosecutor's perspective, it might not be as easy a choice as one might think.
The federal government didn't need to step in here — but it wanted to send a message
Traditionally, the federal government leaves it to states to prosecute murder cases. Since there's no question that what Roof is accused of doing would count as murder, the federal government doesn't need to step in to ensure a conviction.
When states aren't willing to prosecute, or when they can't successfully bring someone to justice, that's another story. "Often the federal government will act as a backstop to state prosecutions if they feel the state may have gotten it wrong," says Little. And when it comes to attacks on African Americans, they've often felt the states have gotten it wrong, as with cases in the mid-20th century when local prosecutors weren't willing to charge white people for attacks on black people, and the 1993 federal trial of the police officers who beat Rodney King — after they were acquitted by a Los Angeles jury with no black members.
Regardless of whether South Carolina has come to terms with its racist history, the state government seems pretty eager to convict Roof. Gov. Nikki Haley has said that "we will absolutely want him to get the death penalty." So the federal government didn't need to step in to ensure a prosecution.
But sometimes the feds step in not because they're worried about a state trial, but because they simply feel it's important to send a message by convicting someone of a federal crime. That's what happened with the Tsarnaev trial.
"There are Justice Department officials who may say, 'You know what, South Carolina, this is not just a murder, this is a hate crime," says Little. "You as a state have chosen not to prohibit hate crimes in a special category; we as the federal government believe that's the message we need to send with this prosecution."
And that's exactly what appears to have happened here. "This directly fits the hate crime statute. This is exactly what it was created for," one official told the New York Times in June.
Furthermore, protecting minority rights in the South isn't new territory for the federal government. "The federal government has traditionally taken the role, since particularly the civil rights era, of enforcing statutes to protect individuals who may be targeted because of their race in the South," Little points out. That's often been because they don't trust the states to do it. But it's a tradition they may want to make a point of continuing.
Clarification: The text of the federal hate crime law is syntactically complicated, so we paraphrased it to make it straightforward and added a link to the verbatim text. Thanks to @Popehat for pointing out the erroneous quotation marks. We've also clarified how federal prosecutors could charge Roof with a capital crime.