Ku Klux Klan members at a cross lighting in 2005. (Photo: Confederate Till Death/Wikimedia Commons)

In April 2012, a 21-year-old named Ivan “Rusty” London IV and a 41-year-old named Timothy Stafford built a giant wooden cross in a workshop behind Stafford’s house. Late one night later that month, they put that cross in Stafford’s truck and brought it to a certain driveway in the town of Minor Hill, Tennessee—a driveway belonging to a new family, consisting of a white woman, a black man, and their newborn daughter. In the early morning hours, London and Stafford propped the cross up, wrapped it in gasoline-soaked burlap, and lit it on fire. Then they drove away.

These facts were laid out in the criminal charges against London and Stafford in federal court in Nashville, because, like so many modern-day cross burners, these two got caught. And like many others, they were charged with a federal hate crime. Stafford “admitted to targeting the interracial couple because he did not want interracial dating in his community,” according to the Justice Department when Stafford pleaded guilty to federal hate crime charges just last month. (London had already pleaded guilty back in August.)

Half a century after the Civil Rights era, and almost a hundred years after the first recorded cross burning in 1915 in Georgia, it may surprise some people to learn that this is still going on. The frequency of hate crimes overall has decreased over the years, but the race of the intended victims is still the biggest motivating factor.

"Obviously it used to be that no one got one minute in jail. But even through the '60s and '70s and '80s and '90s, you might get a month or two, that kind of thing.... But we’re now seeing quite a few very heavy sentences, on the order of 10 years or more."

Mark Potok, senior fellow at the Southern Poverty Law Center in Montgomery, Alabama, says that he thinks he has a pretty good idea of just how often cross burning occurs, because it tends to attract at least local media outlets. Cross burning is meant to attract a lot of attention, and it works.

“I would say that a few years ago they were running at about once a week, about 50 cross burnings a year,” Potok says. “And now, this is very back-of-the-envelope ... but now we are probably looking at something like 30 cross burnings a year.”

Potok adds that cross burnings, committed on someone else’s lawn or driveway with the intent to intimidate and harass that person, are distinct from “cross lightings,” which are private ceremonies or rallies held in remote areas by the Ku Klux Klan or other groups. The former is prosecutable as a hate crime; the latter, while obviously objectionable to many people, is perfectly legal.

That distinction was key in the most recent case to bring the topic of cross burning to the U.S. Supreme Court: Virginia v. Black, decided in 2003. In the decision of that case, the court upheld the state of Virginia’s right to ban cross burning that is done with the intent to intimidate, but rejected the state’s right to ban the private burning of a cross for any other reason. The First Amendment includes the protection of “symbolic” speech as well as spoken speech—but the intent of the speaker can mean the difference between hate crime and free expression. And the burden of proving that intent, said the court’s majority opinion, should be on the prosecution.

Unfortunately, that burden is often too much for local authorities, Potok says. Proving intent as well as fact often requires lengthy investigations, discovery processes, and trials. Time is money, and some smaller counties can’t afford it. Most cross-burning cases are still prosecuted locally, but sometimes it helps to bring in the big guns.

“Sometimes the locals really don’t have the money, or could sure use help, on a major case, so that’s one reason that you can bring in the federal government with all those resources on some kind of major prosecution,” Potok says, suggesting another, more nuanced factor for federal participation as well: “Or, you’ll even get cases where local authorities disagree on essentially philosophical grounds with hate crime laws, and they won’t prosecute it as a hate crime.”

He also says that the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, named after two murder victims and passed in 2009, has helped to give the FBI and other federal law authorities more power to step in on the local level when hate crimes are suspected. Steeper punishments for this category of crime are another noticeable change from previous decades. For burning a cross in that Tennessee driveway, Timothy Stafford potentially faces 10 years in prison when he is sentenced this April; London faces five. Those sentences are commonplace today but would have been unthinkable in the past.

“The sentences for cross burnings have grown astronomically,” Potok says. “Obviously it used to be that no one got one minute in jail. But even through the '60s and '70s and '80s and '90s, you might get a month or two, that kind of thing.... But we’re now seeing quite a few very heavy sentences, on the order of 10 years or more.”

With such swift action by prosecutors and such high punishments at stake, it’s amazing that anyone would still take the chance to send these hateful messages. But cross burning persists—and not just in the parts of the country that come immediately to mind. Among the higher-profile cases that the Southern Poverty Law Center has followed over the past few years, there have been instances of cross burning in California, Michigan, and upstate New York. Not that this geographic shift should be very surprising, says Potok, who calls cross burning “an iconic form of terrorism in the United States.”

“Obviously once upon a time this was very much a Deep-South phenomenon, but now, neither the Klan nor things like cross burnings are limited to the South,” he says. “The mythology is so well-known that you're as likely to get a cross burner in Minnesota as you are in Georgia.”