A brutal murder in East Texas led to the passage of state and federal laws requiring harsh penalties for hate crimes. So why are they so little used?

During the race for Harris County District Attorney, then-candidate Kim Ogg charged DA Devon Anderson with dropping the ball on prosecuting hate crimes. We decided to dig deeper, as part of News 88.7's year-long initiative, DiverseCity.

In 1998, three white men – John William King, Lawrence Russell Brewer, and Shawn Allen Berry – kidnapped a 49-year-old African-American man named James Byrd Jr., in Jasper, Texas. The three chained Byrd to a pick-up truck and dragged him for three miles, killing him. That crime led to the passage of Texas's hate crimes law in 2001, as well as the federal hate crimes statute, the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, in 2009. Both raise the level of punishment for any crime in which the victim is targeted because of prejudice.

"If we have an aggravated assault, which is a second-degree felony, and we can prove it's a hate crime, it gets bumped up to a first degree, and we get the higher range of punishment," says Harris County DA Devon Anderson.

Physical evidence alone – say, a bloodstain or a stray fiber – can link an attacker to a victim. But proving hatred as the motive for an attack is often much harder.

"We have to prove that the reason that the person or the groups of people were targeted was because of their race, or their color, or their gender, or their national origin. That's an added element we have to prove," says Ruben Perez, an assistant U.S. attorney for the Southern District of Texas.

Even when an attacker makes finding such proof easy, victims aren't always willing to cooperate.

Conrad Alvin Barrett was driving through Katy in November 2013. He stopped when he saw an elderly black man named Roy Coleman. The following sound is from a video Barrett took on his cellphone, later released to the media:

"The plan is to see, if I were to hit a black person, would this be nationally televised?"

"How're you doing? Yeah? Yeah? Knockout!"

When Coleman went to a senior's center the next day, workers there saw he was in agony, his face deformed. They notified his daughter.

"He was then taken to the hospital," says Perez. "Turns out his jaw had been broken in two places. He was missing three teeth. He had not even reported it to the police."

Local and federal investigators got involved. When they took Coleman's statement, they asked why he hadn't reported the assault.

"He said, ‘When I was growing up, if a white man did something to you, you didn't say anything. Especially if the police were involved, you didn't say anything, 'cause it could get worse,'" says Perez.

Barrett was ultimately convicted under the Shepard-Byrd Act and sentenced to six years in prison.

The Coleman case illustrates another point: some hate crimes are never prosecuted because victims are convinced that speaking up will only bring more unwanted attention, even more attacks.

"All of us in this business have known for many years that it certainly appeared that hate crimes were being undercounted," says Mark Potok, a senior fellow with the Southern Poverty Law Center.

Last year, Houston reported 27 hate crimes. That's far short of what one might expect for a city of Houston's size. Other large U.S. cities – such as New York, Los Angeles, and Phoenix – reported hundreds.

"These crimes are all reported on the basis of individuals reporting to police departments, police departments reporting to the state, and then the state reporting to the FBI. So it's a completely voluntary reporting system," Potok says.

The Justice Department decided to try to get a more accurate count through statistically representative sampling. Its model revealed that roughly 260,000 hate crimes are committed in the U.S. every year, between 25 to 40 times the number suggested by voluntary reporting. The department is still trying to determine how that breaks down by state and by city.

One thing we can tell is how many have resulted in successful prosecutions. Harris County has brought hate crimes charges in six cases under the Texas hate crimes act since 2001. Four have resulted in convictions or plea deals. Two are still pending. Federal prosecutors have won convictions against nine individuals under the Shepard-Byrd Act, not just for Houston but for all of Southern Texas.

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