Against All Odds: Seeking Justice in Illinois After a Hate Crime
By Rachel Schwartz
On May 25 this year, a Batavia resident named Ben (a pseudonym) opened his mail to find an anonymous note handwritten in black marker. The note included derogatory names for Latinos and gay men. “Deport both,” it read.
The message was scrawled over a printed screen grab of a Facebook post from a week before about recent ICE raids in local restaurants. Ben had not written the post, but had reacted to it with an angry emoji.
Ben did not know who might have sent the letter. He also did not know that other residents across Kane and DuPage Counties had received similar mail.
When Ben called the police, the responding officer took his report and collected the letter for evidence, telling him, “This is why I tell my kids not to be on social media.”
In November 2017, we reported that a hate crime can get “lost” at many steps along its way to national FBI statistics, from a victim choosing not to report, to a police department failing to identify a hate crime or pass it along to the FBI. However, even when law enforcement identifies a hate crime, victims face an uphill battle in bringing those crimes to court. One in five hate crime reports materializes as a case, and less than one in ten results in a guilty plea or verdict.
In March 2018, Cook County State’s Attorney Kimberly M. Foxx took an unprecedented step toward transparency by making felony case-level data available online. Since all hate crimes are felonies, and most felonies in Illinois are charged by the State’s Attorney’s office, this data–though imperfect due to human error—gives us insight into what happens to those hate crimes that come to the attention Cook County law enforcement.
From 2011-2016, Cook County agencies reported over 260 hate incidents to the FBI. Prosecutors brought hate crime charges in 54 incidents, and in 18 cases all hate crime charges were dropped. Just 28 hate crimes from those six years resulted in a conviction or a guilty plea.
Reporting the Crime
While the State’s Attorney’s Office is responsible for prosecuting hate crimes, the process effectively begins with police departments, which must respond to and investigate crimes.
A range of real and perceived barriers prevent community members from successfully reporting hate crimes to the police. For example, very few Chicago police officers can readily communicate with deaf individuals, according to Angie D’Souza, former LGBTQ and Hate Crime Victim Specialist with the Cook County State’s Attorney’s Office.
“There are three million people in the city and there is one [officer] who knows ASL? That is a barrier,” she said.
Unfortunately, policing patterns in marginalized communities can also deter hate crime victims from making reports. Sometimes when individuals choose to report, their fears are confirmed.
Ernest Crim, a history teacher in Will County, experienced this firsthand. In 2016, a woman verbally attacked Ernest and his wife at Margarita Fest in Chicago’s South Shore neighborhood. She called them the n-word, spit on Ernest’s wife, and smacked his phone away as he tried to record what was happening.
A security guard removed the woman from the festival, but Ernest was not satisfied. He posted a video of the incident on Facebook, and within hours, someone had identified the woman as Jessica Sanders.
Ernest made a police report the next day, but he said that the police “seemed kind of shocked that I was filing a report over that.” As the case began to garner publicity, Ernest and his wife started receiving threatening Facebook comments, emails, and letters.
Police initially filed the Margarita Fest case as a battery rather than a hate crime, and detectives were unresponsive. “It was just a complete run-around,” remembers Ernest. He used his summer vacation to pursue the case, connecting with staff at Chicago Lawyers’ Committee for Civil Rights and other pro bono attorneys to advocate for an appropriate investigation and charges.
When a victim reports a crime to law enforcement, those agencies may lack the knowledge, resources, or will to identify and investigate it as a hate crime. While Chicago has a small team of specialized hate crime investigators, this is unique in Cook County. Every department has its own system for responding to hate crimes.
In the hate mail case, smaller police departments in Kane and DuPage Counties took little action, leaving the victims to do the lion’s share of the investigating themselves. Shortly after Ben made his police report, he saw a Facebook post about a similar letter. Ben responded to the post and connected with a small but growing group of letter recipients on Facebook.
“Some of the messages that [the perpetrator] sent were more threatening and more violent than the one I received,” said Ben.
The group noticed that the sender had included his own profile picture in one of the letters. One member spent hours searching Facebook in order to identify him.
“If I hadn’t connected with this group of people…I would have just had to live with this with no resolution,” Ben said. “These police departments—not necessarily through any fault of their own—are not really equipped to handle these cases.”
After police identify and investigate a probable hate crime, they share this information with the State’s Attorney’s Office. In a process called “felony review,” prosecutors then examine the results of the investigation and decide on which charges to file. To charge someone with a hate crime, they look for obvious evidence of bias, like racial slurs, that would prove a hateful motive beyond a reasonable doubt.
If police fail to investigate cases as hate crimes, prosecutors can’t necessarily make up for the error since they do not separately investigate the crime. Yet there are cases where the facts lead prosecutors to add a hate crime charge during felony review, even if the police department didn’t characterize the crime that way.
“We keep our options open and want to put everything that could possibly fit,” D’Souza said.
From 2011-2016, agencies in Summit, Tinley Park, Cicero, Evergreen Park, Maywood, Merrionette Park, Niles, and Oak Park all reported fewer hate crimes to the FBI system than were prosecuted. In these cases, prosecutors may have been able to recognize bias motives that were overlooked by police officers.
Unfortunately, the felony review process cannot act as a stop-gap in every situation. In Ben’s case, police have charged the hate mail sender with four counts of misdemeanor disorderly conduct. Misdemeanor cases like this typically don’t rise to prosecutors’ consideration. These types of incidents in particular might be slipping through the cracks, especially in police departments less equipped to respond to hate crimes.
Ben sees the charge as a slap on the wrist. He doesn’t believe that a misdemeanor court, which handles minor infractions, can adequately address his case. “This guy is making at least ten people feel unsafe in their own homes,” says Ben. “It feels like the system is broken.”
Ben has worked with Chicago Lawyers’ Committee to bring the case to the attention of the State’s Attorney’s Office, but because the situation does not fit neatly under the hate crime statute, prosecutors may choose not to bring additional charges. The long process has weighed heavily on Ben, who fears that the sender is angrier now than he was in May. “It’s always in the back of your mind,” Ben said.
Just fourteen defendants have gone to trial on hate crime charges in Cook County since 2011, an average of less than two per year. Against all odds, the Margarita Fest case went to trial in the fall of 2017, beginning another stressful phase of the process. “I went to every date possible,” said Ernest. Attending all of the preliminary pre-trial hearings meant taking more days off work.
Before and during this stage, victim advocates like D’Souza provide referrals to services like counseling, prepare victims for what to expect, and sometimes attend hearings to report back to the victim. Ernest told us, “I could not have made it through that arduous process without [D’Souza’s] support and guidance.”
This type of assistance can be invaluable in a system that can seem hostile to individuals dealing with trauma, especially those with marginalized identities, as is the case for most hate crime victims.
In Kane County and without a felony charge, Ben had a different experience. “No one from the State’s Attorney’s Office has ever reached out to me or any of the victims,” he said. “We just get radio silence.” Meanwhile, he has had to navigate the misdemeanor court system alone, something that has felt like a second job. “They don’t know how to deal with victims showing up.” Ben said. He has relied on support from Chicago Lawyers’ Committee to know what to expect.
Judges rarely, if ever, see hate crime cases in their courts, and they may miss insights into both the legal and social nuances of a case. This may contribute to a low conviction rate; of the fourteen hate crime cases have gone to trial since 2011, only three defendants have received guilty verdicts on the hate crime charge. For this reason, some advocates have suggested funneling all hate crime cases through a single judge.
Ernest knew that the deck was stacked against him, especially as a Black victim pressing charges against a White assailant. “I don’t think the judge could sympathize with our experience,” he said.
The available data, though limited, supports Ernest’s understanding. In Cook County, White defendants more often saw all hate crime charges against them dropped, and Black defendants’ cases more often result in guilty pleas or convictions. Younger Black defendants in particular saw more follow-through on hate crime charges than their White peers. From a racial equity lens, this raises concerns both for defendants of color who may not get a fair chance in the criminal courts, as well as for those hate crime cases not treated as seriously as they should be.
In the Margarita Fest trial, the judge acquitted Sanders of the hate crime charges, but convicted her of battery. She was sentenced to 90 days in prison.
Ernest called the result “a work in progress.”
“I’m caught between knowing how things should be and knowing how things are [...] When you see a picture of me and a White woman in 2017, and I’m not the person who’s the convict—it transcends a lot of barriers.”
The Next Steps
Above all, Ernest and Ben wanted to see some form of accountability for the offenders.
While some of the hate mail recipients would like to see hate crime charges, Ben accepts that the narrow legal definition may make that difficult. For him, “That’s less important to me than [...] that he understands what he has done and is held accountable for it.”
Earlier this year, Ernest and his wife decided not to pursue a civil case against Sanders. Ernest would have had to remain quiet about his experiences over the course of the civil litigation, which can take years. He called that “the deal-breaker,” and estimated that he has already shared his story thirty times. “Just seeing the differences with kids at my school, that means a lot more than dealing with a five-year civil case.”
Ernest intends to continue using his story to connect with others and raise awareness of these issues. After the trial, he started a Black Student Union at his school. He wants to know, “What about kids that I teach who deal with this all the time and nothing happens? They have stories that are worse than what I dealt with, and nobody is ever held liable for it.”
Advocates at Chicago Lawyers’ Committee will continue to support survivors of hate crimes as they move through the criminal court process and seek other legal remedies. Stories like Ernest’s and Ben’s demonstrate that accountability through the courts can be hard to obtain. Improving law enforcement response, implementing trauma-informed practice, increasing hate crime specialization, and opening alternative avenues to justice will be necessary in lessening the burden on victims and improving the likelihood of a just outcome.