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The day after Dylann Roof killed nine people in a historically black church in Charleston, South Carolina, we speculated about whether he would be charged with a hate crime or an act of domestic terrorism. After all, the Department of Justice (DOJ) had already announced its own hate crime investigation.
As it turns out, Roof so far has only been charged with nine counts of murder and an associated weapons charge. So what about the hate crime and terrorism charges?
Federal Versus State Statutes
The hate crime and terrorism statutes we looked at were federal laws, and thus far Roof has only been charged by the state of South Carolina. And South Carolina is one of only six states that don't have race-based hate crime penalty laws. The terrorism statute is also a federal law, so it would be up to federal authorities to pursue those charges.
And the feds are sending mixed messages regarding the terrorism charges. While the DOJ announced last week it would investigate the shooting as a potential act of domestic terrorism, James Comey, the director of the FBI, tried to play down the use of "terrorism" to describe the shooting. At a press conference, Comey said, "Terrorism is act of violence done or threatens to in order to try to influence a public body or citizenry so it's more of a political act and again based on what I know so more I don't see it as a political act."
Political and Prosecutorial Forces
Whether federal authorities decide to charge Roof with a hate crime or an act of terrorism will depend on several overlapping factors, the ease and efficiency of prosecuting the case the chief among them. The biggest concern for both state and federal law enforcement will be making sure the case proceeds smoothly and results in a conviction.
The death penalty may also be a factor. South Carolina law provides for capital punishment in cases like this one, where the killing involved "multiple victims" and the killer "knowingly created great risk of death to multiple persons in public place." And Governor Nikki Haley has urged prosecutors to seek the death penalty for Roof.
As evidenced by the recent verdict in the Boston Marathon bombing case, the federal government can also seek and secure the death penalty in cases of domestic terrorism. But proving that Roof committed the murders may be easier than proving that he intended to "intimidate or coerce...the civilian population...in furtherance of political or social objectives," as the federal terrorism statute requires.
Ultimately, the decision regarding possible hate crime and/or terrorism charges may be as political as it is procedural. South Carolina may want to convince the nation that it is willing and able to aggressively prosecute heinous crimes, even without additional legislation; the federal government may want to send a message that it takes hate crimes and domestic terrorism seriously.