By Matteo Vergani,  Angelique Stefanopoulos, Alexandra Lee, Haily Tran, Imogen Richards, Dan Goodhardt, Greg Barton

Bias indicators – that is, facts, circumstances, or patterns that suggest that an act was motivated in whole or in part by bias – can be a useful tool for stakeholders working on tackling hate crimes. Government and non-government agencies can use them to improve and standardise data collection around hate crimes, which can have a cascade of positive effects. For example, they can help to demonstrate in court the prejudice motivation of a crime – and we know that this is often hard in Australia, because the legislation has a very high threshold of proving hateful motivation. They can also improve the precision of measurements of the prevalence of hate crimes in communities, which is necessary for planning appropriate mitigation policies and programmes and for assessing their impact. Bias indicators can also be useful for non-government organisations to make sure that their data collection and research is reliable, consistent and a powerful tool for advocacy and education. We acknowledge that bias indicators can be misused: for example, our lists are not to be read as exhaustive, and users should take them as examples only. Also, incidents can present bias indicators from multiple lists, and coders should not stop at trying to code the incident as targeting one identity only. Importantly, our bias indicators lists should not be used by practitioners to make an assessment of whether an incident is bias motivated or not. The absence of bias indicators does not mean that an incident is not hate motivated – if a victim or a witness perceives that there was a prejudice-motivation. At the same time, the presence of a bias indicator does not necessarily demonstrate that an incident is bias motivated (as the term ‘indicator’ implies). Ultimately, a judge will make this decision. In the Australian context, we are proposing that bias indicators should be used to support data collection, and to make sure that all potentially useful evidence is collected when an incident is reported. This report is structured in two parts: in Part 1, we introduce and discuss the concept of bias indicators, including their uses, benefits, and risks. In Part 2, we present a general list of bias indicators (which might be used to code a hate  motivated incident), followed by discrete lists of bias indicators for specific target identities. We also present a separate list for online bias indicators, which might apply to one or more target identities. We are keen to engage with government and non-government agencies that plan to use bias indicators and find this report useful. We welcome opportunities to share additional insights from our research on how 

Melbourne: Centre for Resilient and Inclusive Societies. 2022. 40p.

By Besiki Luka Kutateladze 

Goals & objectives The goal of this study is to enhance public safety and community well-being through effective identification, investigation, and prosecution of antiLGBTQ hate crimes in Miami. This important goal was achieved by examining: victimization experiences, victim and offender characteristics, crime reporting outcomes, victimization consequences, case processing, as well as the criminal justice system’s challenges and opportunities for reform. The project focuses on the hate crime victimization within Miami’s Latine community. Research questions What is the prevalence of the anti-LGBTQ hate crime victimization? What are the victim and offender demographic characteristics? What are the barriers for crime reporting and for victim cooperation with law enforcement? What are the predictors of crime reporting? What are the consequences of victimization? How does the criminal justice system identify, process, and dispose of hate crimes? What are the challenges for reporting and case processing? What type of evidence is used by law enforcement for determining the hate motivation? What are the opportunities for reforming police and prosecutorial capacity for tackling hate crimes? Research design The study employs a mixed-methods design using quantitative and qualitative data from victim interviews, case file reviews, and practitioner interviews. 400 LGBTQ individuals who have been victims of a crime have been interviewed using a three-stage venue-based sampling. Furthermore, all hate crimes disposed of by the Miami-Dade State Attorney’s Office between June 2005 and July 2019 (n = 23) were reviewed to collect data on specific offenses, case processing, and disposition outcomes. Finally, 10 semi-structured in-depth interviews were carried out with prosecutors, police detectives, and service providers to assess the practitioners’ perceptions of the problem and opportunities for reforming the system. Applicability of the research The research yielded significant recommendations for law enforcement, the LGBTQ advocacy groups, and the research and academic community. The findings help police and prosecutors develop more effective internal policies and practices for identifying and investigating hate crimes, processing them accordingly, and providing assistance to crime victims. This increased awareness will likely bolster confidence in the justice system, and have significant justice and public safety implications through increased reporting and cooperation with police and prosecutors.  

Miami: Florida International University, 2020.   157p.

By  Ira P. Robbins

I begin with a mea culpa. In 2016, I published an article about citizen’s arrest. The idea for the article arose in 2014, when a disgruntled Virginia citizen attempted to arrest a law school professor while class was in progress.2I set out to research and write a “traditional” law review article. In it, I traced the origins of the doctrine of citizen’s arrest to medieval England,  imposing a positive duty on citizens to assist the King in seeking out suspected offenders and detaining themI observed that the need for citizen’s arrest lessened with the development of organized and widespread law-enforcement entities. I surveyed developments across the United States and highlighted numerous problems with the doctrine that led to confusion and abuse. I concluded by recommending abolition of the doctrine in most instances and proposed a model statute to address appropriate applications of citizen’s arrest. But I did not discuss race. Indeed, I did not even use that word in the entire forty-three-page article. It’s not that I had intentionally ignored the issue. Rather, I  was wearing blinders and failed to consider the bigger picture. Until three men killed Ahmaud Arbery in Brunswick, Georgia on February 23, 2020. Standing in his front yard, Gregory McMichael spotted Arbery, a twenty-five year-old Black man, jogging through the Satilla Shores neighborhood. There had been a recent string of break-ins in the area and, according to the police report, McMichael thought that Arbery matched the suspect’s description. McMichael quickly called to his son, Travis McMichael, proceeding to grab a shotgun and a .357 Magnum handgun as the men chased Arbery down in a pick-up truck. Their neighbor, William Bryan, also joined in the chase. The three white men quickly cornered Arbery; the encounter turned deadly in a matter of minutes. After a string of prosecutorial recusals, the three were charged with one count of malice murder, four counts of felony murder, two counts of aggravated assault, one count of false imprisonment, and one count of criminal attempt to commit false imprisonment. In a Pre-Hearing Memorandum, Bryan’s attorney argued that “[t]he law provides no right to resist a legal arrest.”  The Memorandum, however, did not clearly identify what a legal arrest was.  At trial, defense attorneys for the McMichaels argued that Georgia’s Civil War-era citizen’s arrest law gave his clients a duty to protect their neighborhood from so-called criminal activity.  Under the now-repealed statute, a “private person” was permitted to arrest a fellow citizen if the individual had committed a felony and was trying to escape, even if the arrestor had only “probable grounds of suspicion.”  In November 2021, a jury found the  defendants guilty of murder, among other counts. In January 2022, the judge sentenced them to life in prison. In addition to the state charges, in February 2022, a jury found the three men guilty of federal hate crimes. Evidence at that trial revealed that the defendants held strong racist beliefs that led them to make assumptions and decisions about Ahmaud Arbery that they would not have made if Arbery had been white. Witnesses testified to numerous comments made by the men, including offensive social media posts that included racial slurs. The jury ultimately concluded that race formed a but-for cause of the defendant’s actions, meaning that the three men would not have chased down a Black man whom they assumed, without evidence, was a criminal.  

Washington: American University of Washington College of Law, 2022. 19p.

By Vidisha Bajaj

Amidst high-profile incidents of hate violence against religious and caste minorities, the Indian Supreme Court laid down a series of guidelines to address mob violence and lynching in its July 2018 Tehseen Poonawalla order. The order mandated a police supervisory structure and stronger official accountability, more stringent penal provisions, victim and witness protection, and more expansive compensation and rehabilitation schemes. It also recommended the enactment of anti-lynching legislation. This article contributes to the conversation about the order’s implementation by drawing from the empirical work conducted by Jindal Global Law School’s (JGLS) legal clinic on hate crimes. It focuses on how the police deploy their official discretion in investigating and prosecuting incidents of mob violence and lynching. First, based on detailed interviews of police officials, the article shows how the ambiguity of the category of lynching continues to plague the implementation of the order. Second, taking a case study of a potential hate crime investigation, it shows how the police structures investigations and charges to undermine the goals of criminal law. This article shows that police officials use their discretion to construct lynching — during various stages of investigation and charging — to obscure and invisibilise the crime. This quotidian exercise of discretion is shaped by broader systemic problems in India’s criminal justice system, especially its lack of independence, inadequate training, and institutional bias. The article advocates that these systemic concerns must be integrated in a meaningful response to mob lynching and hate crimes in India.

India, Jindal Global Law Review. 2020, 34pg