By: Allison Wong
Volume IX – Issue I – Fall 2023
I. Background
On May 20th, 2021, the COVID-19 Hate Crimes Act was signed into law by President Biden with bipartisan congressional support. [1] The Act included increasing support for Justice Department initiatives, establishing hotlines, bolstering reporting systems, accumulating more accurate data, and encouraging public education. [2] Although these measures established a degree of solidarity with the Asian American & Pacific Islander (AAPI) community, the Act’s lack of specificity, reactive rather than proactive solutions, and limited legal implications ultimately hindered its potential to enact systematic change in response to previous crises.
Two years prior, on March 11th, 2020, the World Health Organization (WHO) declared an outbreak of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) a global pandemic. [3] Subsequently, the United States declared a national emergency under Proclamation 9994, [4] ushering in an era of mask mandates, hospitalizations, rising death tolls, and economic recession. The origins of the virus in Wuhan, China became a source of significant xenophobia, scapegoating, and stigmatization of Chinese people as the presence of COVID-19 worsened in the United States. Against warnings of the dangerous consequences of this association, [5] former President Donald Trump regularly utilized the rhetoric of “Wuhan virus” and “China virus” in statements ranging from social media posts to White House press briefings, most notably describing the disease as “kung flu” in a campaign rally held in Tulsa Oklahoma. [6]
What originated as anti-Chinese sentiment became a surge of racism, discrimination, and hatred towards the broader AAPI community that would persist throughout the pandemic. By 2021, anti-Asian hate crimes increased by 339 percent nationwide and the number of anti-Asian hate incidents surpassed 3,800. [7] Victims ranging from young children to senior citizens were fatally shoved, spat on, coughed at, beaten, stabbed, set on fire, and slashed in the face. [8] On March 16th, 2021, almost a full year since the start of the pandemic, the Atlanta spa shootings resulted in the murder of eight people, six of whom were women of Asian descent. [9]
The mass shooting prompted a visit by President Biden and Vice President Harris, who engaged in discussions with AAPI community members that brought attention to the federal level. [10] Departing completely from the rhetoric of his predecessor, President Biden returned from the visit describing, “We heard how too many Asian Americans have been waking up each morning this past year genuinely fearing for their safety just by opening the door and walking down the street, and safety for their loved ones… Attacked, blamed, scapegoated, harassed during this pandemic. Living in fear for their lives, as I said, just walking down the street.” [11]
II. Elements of the COVID-19 Hate Crimes Pact
The Act contextualizes proposed solutions by presenting Congressional findings in Section 2 “Findings”, including the dramatic increase in anti-Asian hate, the connection between violent incidents and discriminatory intent, the threat to AAPI-owned businesses, the targeting of the elderly, and the names of the Atlanta spa shooting victims. [12] The section emphasizes the United States’ solidarity with the AAPI community as well as its denouncement and condemnation of racism.
Section 3 “Review of Hate Crimes” outlines the expediting of reviewing hate crimes, beginning with the Attorney General designating a Department of Justice (DOJ) member to act as a facilitator. [13] This was followed-up by a memorandum from Attorney General Merrick Garland on May 27th, 2021, in which the chief of the Criminal Section of the DOJ’s Civil Rights Division was assigned responsibility of evaluating possible breaches of federal criminal laws in reported incidents of hate. [14]
Section 4 “Guidance” outlines the coordination with state, local, and tribal enforcement as well as community-based organizations in which the Attorney General provides guidance on creating an accessible and inclusive reporting system, collecting accurate data, and developing campaigns for public education. [15]
These aforementioned target areas are expanded on more specifically in Section 5, cited as the “Khalid Jabara and Heather Heyer National Opposition to Hate, Assault, and Threats to Equality Act of 2021”. [16] The foundation on which these solutions rest is federal financial assistance, which supports the improvement of hate crime investigation and prosecution at the federal, state, and local levels. The funding is in the form of grants managed by the Attorney General for three main purposes. First, the grants are intended for the implementation of the National Incident-Based Reporting System and training programs to ensure that new system employees are able to properly classify and identify incoming reports. [17] Second, state-run hate crime hotlines are to be established in order to direct victims to either local support services or law enforcement. These hotlines should be staffed with trained employees and be accessible to non-native English speakers as well as those with disabilities. [18] Third, grants should be allocated to new policies on hate crimes catered to local needs, crime reduction programs, public meetings, and educational forums to raise awareness and train employees dealing with hate crimes. [19]
Accountability of state and local governments is handled through the distribution of federal financial assistance. Failure to comply with established goals necessitates repaying the grant in addition to interest and penalty charges. [20] While under federal grant, law enforcement agencies must also collect and communicate information on enactment of new policies or programs, which is compiled into reports for each fiscal year. [21] This allows for the DOJ to conduct periodic assessments on the effectiveness of the new legislation.
III. Strategies and Solutions
The actions outlined in Section 5 of the Act [22] are largely centered around reactive strategies that lack specificity in addressing anti-Asian hate crimes. Beginning with reporting systems and hotlines, having more accessible forms of reporting allows for the DOJ to have more accurate data. [23] This information can be used to better assess the geographical distribution and nature of these incidents, which can be analyzed to look for patterns and trends in terms of susceptible areas and vulnerable situations for victims of violence and harassment. However, the Act leaves out what exactly the DOJ will do with their analysis of new found data and how access to information can be used to catalyze change.
The decentralized nature of the Act also presents issues because it empowers and funds state and local governments to enact necessary measures and policies to combat the issue without specifying or advising what those policies would be. In Section 4 “Guidance”, it requires the Attorney General to provide instructions on setting up reporting systems, hotlines, and education programs, [24] but does not require providing instruction on crime reduction programs and ways to prosecute these crimes. Additionally, reporting systems and hotlines focus more heavily on putting victims to numerical data in the aftermath of hate crimes rather than preventing the hate crimes themselves. Education initiatives have also been found to be insufficient in deterring people from instigating violence and harassment. [25] If funding went towards education programs, these would either only be applicable to students or exist in the form of voluntary forums that perpetrators of these hate crimes would not be attending on a regular basis. It is also extremely difficult to educate away deep-rooted xenophobia and bias especially when anger and resentment leads to split second decisions.
Public education campaigns do have the potential to be proactive in nature, however, if they are designed to train people to become upstanders rather than bystanders. Many of the hate crimes experienced by the AAPI community occur on city streets, in small businesses, and in the presence of groups or crowds. [26] If witnesses of these crimes are trained and educated on how to get help and deescalate a potentially violent situation, actual acts of violence or harassment can be prevented to some degree. Well designed public education campaigns still cannot stand alone, as they need to be coupled with efforts to address attackers in the first place and ensure that law enforcement is present to protect victims in times of need.
IV. Legal Implications
The passage of this Act built on previous federal actions such as the enactment of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act in 2009, [27] the Hate Crime Statistics Act by Congress in 1990, [28] and the Uniform Crime Reports program of the Federal Bureau of Investigation in 1930. [29] The COVID-19 Hate Crimes Act differs from previous legislation in that it builds upon standards of reporting systems and hotlines and addresses the AAPI community specifically.
However, what all of these policies have in common is a lack of legal implications on how a hate crime is prosecuted in the justice system. This matters because the various measures towards increased accuracy in reporting and accessibility of hotlines can only enact change if the reported incidents are effectively addressed. The DOJ defines a hate crime as “a crime motivated by bias against race, color, religion, national origin, sexual orientation, gender, gender identity, or disability” [30] and a hate/bias incident as “acts of prejudice that are not crimes and do not involve violence, threats, or property damage”. [31] While the concept may seem relatively straightforward, it is extremely difficult to establish a strong motive of racism. [32] Racist slurs, for example, are often split second occurrences that are hard to submit as evidence because they are not often recorded by victims. On the other hand, acts of violence and harassment not coupled with racist words lack a tangible way to prove that the motive was mainly race. The burden of proof for establishing that a person acted out of racism and chose the victim specifically because of their perceived identity is almost impossible to meet.
Additionally, a concerted nationwide effort to combat hate crimes is difficult to coordinate because statutes and laws vary by jurisdiction and are handled mostly by state and local governments, law enforcement agencies, and court systems. [33] According to the DOJ, laws relating to hate crimes can be different in regards to bias motivations (including race), penalty enhancements, and data collection. [34] State and local institutions have almost full control of how they decide to handle these incidents, making it difficult to combat them with a more centralized federal response.
I. Steps Forward
Despite these gaps in the COVID-19 Hate Crimes Act, there are still elements of improvement that it offers. For one, as the largest federal response to anti-Asian hate during the pandemic, it brought to attention an issue often only grieved and discussed within AAPI communities to the forefront of national attention. President Biden’s administration in carrying out the provisions of the Act demonstrated a complete departure from the rhetoric of former President Trump who actively fueled anti-Chinese sentiment. In that way, the Act served as a crucial symbol of solidarity with the AAPI community, a step forward that correlated with President Biden’s visit to Atlanta, Georgia after the spa shootings and his subsequent speeches on the importance of unity in standing against racism. [35]
The Act also succeeded in its efforts to make reporting systems and hotlines more accessible to victims of hate crimes. A major obstacle that resulted in underreporting of hate incidents throughout the pandemic was language barriers, which made it extremely difficult for immigrants and especially the elderly, to either file a report or call a hotline. [36] With the passage of this Act, these steps for victims became viable for those who speak other languages and for those with disabilities
Throughout the pandemic, various organizations such as Stop AAPI Hate, [37] Asian Americans Advancing Justice (AAAJ), [38] Asian American Federation (AAF), [39] and the National Asian Pacific American Women’s Forum (NAPAWF), [40] have worked towards many of the same goals listed in the Act. Stop AAPI Hate focused on documenting reports of hate crimes and using that data to raise awareness and catalyze change. [41] The information they gathered has been sent to community groups, schools, and local governments in order to enact preventionary measures and allocate resources to victims. [42] The AAAJ organization centers its efforts around advocacy, writing and distributing policy recommendations, testimonies at public hearings, and legal briefs. [43] The AAF utilizes a similar approach in advocacy as well as community outreach with practical resources like self-defense training videos and strategies for de-escalation in situations of conflict. [44] The NAPAWF focuses on the disproportionate effect of anti-Asian hate on women, who reportedly experience violence and harassment at 2.3 times the rate than men do. [45] Their organization especially focused on advocacy following the murder of 6 women of Asian descent in the Atlanta spa shootings. [46]
What the accomplishments of these organizations demonstrate is that raising awareness and advocating for the AAPI community is an effective strategy. For example, news outlets such as The New York Times have regularly utilized the statistics and annual reports published by Stop AAPI Hate because the organization has developed the most comprehensive database for reporting incidents of anti-Asian hate crimes. [47] The nonprofit sector has already made significant strides on strategies put forth by the COVID-19 Hate Crimes Act. What the federal government has is not only the ability to allocate grant money towards partnerships with community organizations, but also the power to actually enact legal change that these organizations can only advocate for. [48] The solutions presented so far focus largely on the aftermath of hate crimes like filing a report after the attack occurs or measures that members of the AAPI community can take such as practicing self-defense moves, but they are not able to address the root cause of the racism and prejudice that fuels these crimes in the first place.
In the aftermath of many of these violent attacks, victims are hospitalized due to severe injuries and often rely on family members or go-fund-me pages to pay for their medical bills. Individuals are often focused on survival and grieving rather than reforming the justice system, so strategies cannot rely so heavily on citizen advocacy to enact change. It is also extremely difficult to receive any form of justice when suspects are either difficult or impossible to catch and a racist motive is difficult or impossible to establish in a court of law.
While the appearance of these measures in the language of the Act represent positive measures towards building a more understanding environment across the United States, the root of these hate crimes are difficult to control and therefore prevent. It’s difficult or impossible to legislate away bias especially when xenophobia and anti-Asian sentiment is rooting in anger towards a global pandemic. When the existence of a community becomes synonymous with a virus hospitalizing and killing millions of people, inflicting financial insecurity with the economy shutting down, and turning society upside down, the pure hatred spirals into split second decisions to scream a racial slur, shove people to the street, or stab people in a store. These hate crime incidents are difficult to prevent because they are not in the conventional form of organized and planned crime. Some incidents of anti-Asian hate are verbal harassment with racial slurs or spitting on Asian people that cannot really be prosecuted or punished in any way under the law. Access to guns comprised part of the issue when it came to the Atlanta mass shooting, but the majority of these incidents of hate were from shoving, punching, or using knives, bricks, or sticks.
As anti-Asian hate crimes have died down since the waning of the COVID-19 pandemic, it is important to consider the lessons it has taught us. For many members of the AAPI community, the COVID-19 Hate Crimes Act was a “too little, too late” approach to addressing the problem, coming only after a full year of thousands of hate incidents involving violence and harassment. It took until after a mass shooting for a large-scale federal response to the situation at hand. The precedent of acceptability of scapegoating in the face of challenge, such as a global pandemic, echoes historical events of the same dangerous attitudes. Tensions during World War II resulted in the large-scale internment of Japanese Americans and, in 1982, Vincent Chin was murdered in a racially-motivated hate crime due to resentment against Japanese imports supposedly linked to auto industry unemployment. In times of crisis, such as during the pandemic, members of the AAPI community not only have to face the challenges and fears of the COVID-19 virus, but the virus of hate as well.
Endnotes
[1] Graham, Ruth. "8 Dead in Atlanta Spa Shootings, With Fears of Anti-Asian Bias." The New York Times, March 17, 2021. https://www.nytimes.com/live/2021/03/17/us/shooting-atlanta-acworth.
[2] Edmondson, Catie, and Jim Tankersley. “Biden Signs Bill Addressing Hate Crimes against Asian-Americans.” The New York Times, May 20, 2021. https://www.nytimes.com/2021/05/20/us/politics/biden-asian-hate-crimes-bill.html.
[3] “WHO Director-General’s Opening Remarks at the Media Briefing on COVID-19” World Health Organization, March 11, 2020. https://www.who.int/director-general/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020.
[4] 85 FR 15337 Document Number 2020-05794
[5] Darling-Hammond, Sean et al. “After "The China Virus" Went Viral: Racially Charged Coronavirus Coverage and Trends in Bias Against Asian Americans.” Health education & behavior : the oficial publication of the Society for Public Health Education vol. 47,6 (2020): 870-879. doi:10.1177/1090198120957949
[6] Itkowitz, Colby. "Trump again uses racially insensitive term to describe coronavirus." The Washington Post, June 23, 2020. https://www.washingtonpost.com/politics/trump-again-uses-kung-flu-to-describe-coronavirus/2020/06/23/0ab5a8d8- b5a9-11ea-aca5-ebb63d27e1ff_story.html.
[7] Yam, Kimmy. "Anti-Asian hate crimes increased 339 percent nationwide last year, report says." NBC News, January 31, 2022. https://www.nbcnews.com/news/asian-america/anti-asian-hate-crimes-increased-339-percent-nationwide-last-year-repo-rcna14282.
[8] "Two Years and Thousands of Voices: What Community-Generated Data Tells Us About Anti-AAPI Hate." Stop AAPI Hate. Last modified , 2022. https://stopaapihate.org/wp-content/uploads/2022/07/Stop-AAPI-Hate-Year-2-Report.pdf.
[9] Graham, Ruth. "8 Dead in Atlanta Spa Shootings, With Fears of Anti-Asian Bias." The New York Times, March 17, 2021. https://www.nytimes.com/live/2021/03/17/us/shooting-atlanta-acworth.
[10] “Remarks by President Biden at Signing of the Covid-19 Hate Crimes Act.” The White House, May 21, 2021. https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/05/20/remarks-by-president-biden-at-signing-ofthe-covid-19-hate-crimes-act/.
[11] “Remarks by President Biden at Signing of the Covid-19 Hate Crimes Act.” The White House, May 21, 2021. https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/05/20/remarks-by-president-biden-at-signing-ofthe-covid-19-hate-crimes-act/.
[12] COVID-19 Hate Crimes Act, 34 U.S.C. § 30501 (2021)
[13] Ibid.
[14] Attorney General Memorandum on Improving the Department’s Efforts to Combat Hate Crimes and Hate Incidents. Department of Justice, May 27, 2021. https://www.justice.gov/d9/2022-12/attorney_general_memorandum-improving_the_departments_efforts_to_combat_hate_crimes_and_hate_incidents.pdf
[15] COVID-19 Hate Crimes Act, 34 U.S.C. § 30501 (2021)
[16] The Khalid Jabara and Heather Heyer National Opposition to Hate, Assault, and Threats to Equality Act (Jabara-Heyer NO HATE Act), 34 U.S.C. § 30507 (2021)
[17] Ibid.
[18] The Khalid Jabara and Heather Heyer National Opposition to Hate, Assault, and Threats to Equality Act (Jabara-Heyer NO HATE Act), 34 U.S.C. § 30507 (2021)
[19] Ibid.
[20] Ibid.
[21] Ibid.
[22] Ibid.
[23] Edmondson, Catie, and Jim Tankersley. “Biden Signs Bill Addressing Hate Crimes against Asian-Americans.” The New York Times, May 20, 2021. https://www.nytimes.com/2021/05/20/us/politics/biden-asian-hate-crimes-bill.html.
[24] COVID-19 Hate Crimes Act, 34 U.S.C. § 30501 (2021)
[25] Zhou, Li. "Hate crime laws won’t actually prevent anti-Asian hate crimes." Vox, June 15, 2021. https://www.vox.com/2021/6/15/22480152/hate-crime-law-congress-prevent-anti-asian-hate-crimes.
[26] Two Years and Thousands of Voices: What Community-Generated Data Tells Us About Anti-AAPI Hate." Stop AAPI Hate. Last modified , 2022. https://stopaapihate.org/wp-content/uploads/2022/07/Stop-AAPI-Hate-Year-2-Report.pdf.
[27] Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, 18 U.C.S § 249 (2009)
[28] COVID-19 Hate Crimes Act, 34 U.S.C. § 30501 (2021)
[29] Ibid.
[30] "Learn About Hate Crimes." US Department of Justice. https://www.justice.gov/hatecrimes/learn-about-hate-crimes.
[31] Ibid.
[32] Hong, Nicole, and Jonah E. Bromwich. “Asian-Americans Are Being Attacked. Why Are Hate Crime Charges so Rare?” The New York Times, March 18, 2021. https://www.nytimes.com/2021/03/18/nyregion/asian-hate-crimes.html?action=click&module=RelatedLinks&pgtype=Article.
[33] "Hate Crimes: Laws and Policies." US Department of Justice. https://www.justice.gov/hatecrimes/laws-and-policies.
[34] Ibid.
[35] “Remarks by President Biden at Signing of the Covid-19 Hate Crimes Act.” The White House, May 21, 2021. https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/05/20/remarks-by-president-biden-at-signing-ofthe-covid-19-hate-crimes-act/.
[36] Thorbecke, Catherine. "Why anti-Asian hate incidents often go unreported and how to help." ABC News, March 18, 2021. https://abcnews.go.com/US/anti-asian-hate-incidents-unreported/story?id=76509072.
[37] "Two Years and Thousands of Voices: What Community-Generated Data Tells Us About Anti-AAPI Hate." Stop AAPI Hate. Last modified , 2022. https://stopaapihate.org/wp-content/uploads/2022/07/Stop-AAPI-Hate-Year-2-Report.pdf.
[38] Asian Americans Advancing Justice. https://www.advancingjustice-aajc.org/.
[39] The Asian American Foundation. https://www.taaf.org/.
[40] National Asian Pacific American Women's Forum. https://napawf.org/.
[41] "Two Years and Thousands of Voices: What Community-Generated Data Tells Us About Anti-AAPI Hate." Stop AAPI Hate. Last modified , 2022. https://stopaapihate.org/wp-content/uploads/2022/07/Stop-AAPI-Hate-Year-2-Report.pdf.
[42] Ibid.
[43] Asian Americans Advancing Justice. https://www.advancingjustice-aajc.org/.
[44] The Asian American Foundation. https://www.taaf.org/.
[45] National Asian Pacific American Women's Forum. https://napawf.org/.
[46] Graham, Ruth. "8 Dead in Atlanta Spa Shootings, With Fears of Anti-Asian Bias." The New York Times, March 17, 2021. https://www.nytimes.com/live/2021/03/17/us/shooting-atlanta-acworth.
[47] "Two Years and Thousands of Voices: What Community-Generated Data Tells Us About Anti-AAPI Hate." Stop AAPI Hate. Last modified , 2022. https://stopaapihate.org/wp-content/uploads/2022/07/Stop-AAPI-Hate-Year-2-Report.pdf
[48] Hong, Nicole, and Jonah E. Bromwich. “Asian-Americans Are Being Attacked. Why Are Hate Crime Charges so Rare?” The New York Times, March 18, 2021. https://www.nytimes.com/2021/03/18/nyregion/asian-hate-crimes.html?action=click&module=RelatedLinks&pgtype=Article.