Hate is a cultural and social disease. Its origin lies deep in ancient times when religion and war were the primary sources of power—the means to secure power and hold it until a greater hatred emerged to destroy it. Nationalistic politicians and fundamentalist preachers, providing emotional instructions to their flock, rant and rave about their supremacy, using fear and hate based rhetoric to flame the fans of intolerance.


More than two centuries ago the French philosopher Denis Diderot wrote that, “Men will never be free until the last king is strangled with the entrails of the last priest.”


The eternal tragedy of mankind is that lust for power, greed and supremacy has infected every society known to man with hatred. It was this handed down hatred that prompted 21-year-old Patrick Crusius to walk into a Walmart Super Center in El Paso on April 3 and undertake a shooting rampage that left 22 innocent people dead. The Allen, Texas resident posted what has been described as a “hate-filled screed” on a white supremacist website shortly before he expressed his hatred of Mexicans with an assault-styled weapon.


Blurred Line Between Hate Crimes, Domestic Terrorism


The evidence in the public record, and the statements Crusius’ reportedly gave to the police following his arrest, almost indisputably demonstrate that the Walmart massacre was a “hate crime.” The federal government has focused its investigative efforts on the mass shooting as a “hate crime” or possibly an act of “domestic terrorism” while state prosecutors will prosecute the case as capital murder. Either a federal hate crime conviction or a state capital murder conviction would make Crusius eligible for the death penalty.


The first federal hate crime law was enacted in 1968. The federal government now has four primary hate-crime related statutes:


  • Civil Rights Act of 1968;
  • Violent Crime Control and Law Enforcement Act (1994);
  • Church Arson Prevention Act (1996); and
  • Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (2009).


Texas enacted its first hate-crime statute in 1993—the Texas Hate Crime Act of 1993 (Act)—which was exceedingly limited in its reach. The Act provided that an individual committed a hate crime if they selected their victim “primarily because of the defendant’s bias or prejudice against a person or group.” The Act did not define any specific protected persons or groups.


In 2001, the Texas Legislature amended the Act with the James Byrd, Jr. Hate Crimes Act of 2001 (Byrd Act) which is codified in Article 42.014 of the Texas Code Criminal Procedure. The Byrd Act provides that if a judge makes an affirmative finding that the offense charged is a hate crime, then Article 12.47 of the Texas Penal Code permits the punishment for the offense to be increased for the next highest category of the offense—in other words, a second degree felony would be increased to a first degree felony.


Texas has executed two of the three men convicted in the horrific dragging death of James Byrd, Jr. in Jasper in June 1998. The third man convicted in the Byrd killing is serving a life sentence without parole in the Texas prison system. These two executions make it a near certainty that if a jury convicts and recommends a death sentence for the El Paso shooter, he will meet the same fate that John William King and Lawrence Russell Brewer met in the James Byrd case.


In a September 2015 post, we discussed the problems inherent in virtually all state hate crime laws, including Texas’s Byrd Act. Given, the specific mental states required to prove a hate crime, the El Paso shooter may not be indicted under the Byrd Act; the odds are he will be indicted under the state’s capital murder law. Whether the State will be able to utilize the shooter’s prior traffic in hate is an evidentiary matter that will be resolved by the court before trial. His history of hate, however, will most definitely be an admissible issue in the penalty phase.  Given the available public information, federal prosecutors should have all the evidence necessary to charge this horrendous crime as an act of terrorism.


The tragedy of the El Paso massacre is that we have now become a nation where racial and ethnic hatred is part of our daily discourse. It is woven into virtually every social interaction.


We must now decide as a people how we will deal with this new reality. It is not an issue the courts can cure; it is an issue the courts can only punish when it turns violent.