Two years after Ahmaud Arbery’s jog through a south Georgia neighborhood ended in his murder, the tragedy received a rare designation on Feb. 22, when the three white men who killed him were also convicted of executing a hate crime.
A federal jury found that Travis McMichael and his father, Gregory McMichael, along with their neighbor William “Roddie” Bryan, chased and killed Arbery in a residential street because he was Black.
It’s an uncommon conviction in federal courts. Of the 1,864 suspects referred for federal prosecution with hate crime as the leading charge, only 284 made it all the way to conviction between 2005 and 2019, according to the Bureau of Justice Statistics. During that 15-year period, only two defendants in Georgia were convicted of federal hate crime charges.
It’s not clear how many of those hate-crime prosecutions were for anti-Black attacks, but over the last decade, there have been more bias attacks reported against Blacks than any other race, ethnicity, religious affiliation or sexual orientation, according to the FBI’s Crime Data Explorer.
Besiki Kutateladze, a criminology professor at Florida International University, said the low number of federal hate crime convictions is not surprising because “it’s extremely rare for many of these crimes to get reported [to the police] in the first place.” In Arbery’s case, it was the McMichaels’ and Bryan’s word against a murdered victim.
“If we do not prosecute hate criminals with hate motivation, we will not be able to prevent those crimes from happening in the future,” Kutateladze said. “The whole point of the criminal punishment is to prosecute and punish, to teach a lesson to this individual as well as others who have contemplated similar offenses.”
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When police arrived at the crime scene in Satilla Shores, Georgia, on Feb. 23, 2020, Arbery had been shot multiple times with a shotgun that Travis McMichael admitted to firing. The shooter was splattered with Arbery’s blood, yet police did not handcuff Travis McMichael at the scene.
The McMichaels told police that they suspected the 25-year-old Black man was a burglar and pursued him under the state’s now-dismantled citizens arrest law. Police did not find any weapons or stolen items on Arbery.
The McMichaels and Bryan, who joined the chase with his recording cellphone in tow, were allowed to go home.
It wasn’t until Bryan’s cellphone video was made public more than two months later that he and the McMichaels were indicted in state court for murder. And it wasn’t until April 28, 2021 — 14 months after the crime — that a grand jury indicted the trio on federal hate crime charges.
The current method of investigating and prosecuting hate crimes is a “legal failure,” said Jeannine Bell, an author and professor of law at Indiana University Bloomington.
She noted that more than 80% of police departments across the country reported to the FBI that their jurisdiction did not have a single hate crime in 2020, according to a Politico analysis. And prosecutors are “reluctant to bring hate crime charges, because they worry that juries will not convict individuals of hate crimes,” Bell said.
But the vast majority of federal hate crimes that are tried result in convictions, and 85% of those convictions resulted in prison sentences, according to the Bureau of Justice Statistics.
“The Ahmaud Arbery case should serve as an example to prosecutors that you can win and you should try,” Bell said. “That should be an inspiration for them.”
For an individual to be found guilty of a federal hate crime, prosecutors have to show that the defendant threatened or used force to interfere with someone’s regular activities because of the victim’s race, color, religion or national origin. A hateful motivation can be simple to show when a suspect attacks religious clothing or an ethnic symbol, said Melba V. Pearson, a former homicide prosecutor and civil rights attorney.
“It seems that it has to be someone wearing a hijab or wearing a yarmulke or something like that for it to trigger that, yes – those garments are clear symbols of a religious group, and that makes it much easier to prove that you’re a targeted person,” Pearson said.
But hate crimes against Black people are not as simple to demonstrate in American courtrooms, some legal experts say. It often takes a thorough investigation at the time of the crime as well as resources from prosecutors to dig into the suspect’s background for evidence of anti-Black prejudice.
While federal hate crime charges didn’t come until more than a year after Arbery’s murder, federal prosecutors needed that time to dig into the McMichaels’ and Bryan’s past to find evidence that showed they had a racial bias motive to pursue Arbery, Pearson and Dmitriy Shakhnevich, an adjunct professor with John Jay College of Criminal Justice, said.
During the weeklong hate crime trial, prosecutors showed the jurors several text messages and social media posts in which Travis McMichael and Bryan used racist slurs and made derogatory comments about Black people. Travis McMichael expressed a desire to see Black people killed and Bryan referred to his daughter’s Black boyfriend as a “monkey” and by the n-word, according to the Justice Department.
A witness testified that Gregory McMichael went on a 5-minute rant about the death of civil rights leader Julian Bond and said he wished Bond had “been put in the ground years ago,” according to the Justice Department.
“He was nothing but trouble. Those Blacks are nothing but trouble,” the witness recounted Gregory McMichael saying.
The Justice Department’s news release later said, “evidence at trial revealed that the defendants had strongly held racist beliefs that led them to make assumptions and decisions about Mr. Arbery that they would not have made if Mr. Arbery had been white.”
It’s up to police officers at the crime scene and prosecutors assigned to the case to determine whether hate crime charges are a factor, but because of the lack of diversity in the criminal justice system, some criminal justice experts said, the right questions often are not asked to the suspect and victim.
Rodney Jacobs Jr., an assistant director for the City of Miami Civilian Investigative Panel, said that implicit bias screenings of people who want to become police officers would help weed out those who are more likely to ignore signs that a hate crime occurred.
With more race-conscious officers involved in investigations of possible hate crimes, “Some of those questions would be more at the forefront than at the backend,” Jacobs said.
Sometimes police officers at the scene don’t have the bandwidth to dig deeper into the circumstances that could signal a hate crime, said Shakhnevich. That means prosecutors are better equipped to identify potential hate crimes, he said.
“Most prosecutor offices have bureaus that are designated to investigate and prosecute these crimes. They can get investigative machinery in place like subpoenas on social media companies,” Shakhnevich said. “They can get computer specialists, they can get forensic specialists, and they can try to figure out if they can find information that they could use to develop intent.”
Bell, however, believes the solution to getting more hate crime charges and convictions is about intention: “You need police departments that are willing to investigate the crimes, and you need prosecutors that are willing to file charges in cases they may not win.”
In Arbery’s case, if the responding officers had suspected that Arbery’s death stemmed from hate, they could have collected evidence and interviewed the suspects and witnesses with the idea that it could potentially be a hate crime, Bell said.
Though “Georgia didn’t have a hate crime law at the time, they would have gotten all sorts of different evidence,” she said.
Gov. Brian Kemp signed a state hate crime bill into law in June 2020, leaving South Carolina and Wyoming as the last states without any of these civil rights protections.
For the state murder charges, the McMichaels were sentenced to life without the possibility of parole. Bryan was sentenced to life with the possibility of parole after serving 30 years in prison.
A sentencing date for the federal hate crime case has not been set. The men face an additional life sentence for that charge.
