Dylann Roof was charged by South Carolina prosecutors Friday for the massacre of nine people at Charleston’s Emanuel AME Church on June 17. Roof was charged with nine counts of murder and one count of possession of a firearm during the commission of a violent crime.
But “murder” doesn’t really encompass what Roof is accused of doing. The attack on the church gave every appearance of being a deliberate attack on African Americans, in a historically important black church. That would be a hate crime. To many, it’s even terrorism.
He’d have to be charged by the federal government, not by the states
South Carolina is one of six states that don’t have a separate law that gives harsher sentences to hate crimes. Nor does it have a state law against terrorism (unless there are weapons of mass destruction involved).
So the answer to why Roof hasn’t been charged with a hate crime or terrorism has everything to do with when the federal government decides that a case needs to be prosecuted in federal court, and when it leaves a case to the states.
The feds have been investigating the case as a hate crime since Thursday, and announced on Friday that they would also investigate it as an act of domestic terrorism. Prosecutors could still step in and file federal charges against Roof before his trial starts. Alex Little, a lawyer and former assistant US attorney, says it’s just logistically easier for a state to file charges quickly in a case like this than it is for the federal government to “cobble together a complaint.”
Federal and state prosecutors usually figure out which one of them is in the best position to bring a case to trial, for efficiency’s sake. It’s plausible that federal prosecutors are still negotiating with each other, and with South Carolina, about whether they want to file federal charges.
In deciding whether to take Roof to federal court for a hate crime or to state court for murder, federal and state prosecutors have a choice to make. If they want to send a message that the Charleston massacre was especially abhorrent, they can charge Roof with a federal hate crime. But if they want to guarantee the swiftest possible conviction — and death sentence — then state court might be the way to go.
Traditionally, the federal government only steps in when states aren’t doing their job
South Carolina law clearly prohibits murder; Roof is accused of murdering nine people. So there’s no reason he can’t simply be tried, convicted, and sentenced in South Carolina court. Traditionally, as long as states have been willing to take someone to trial for murder, the federal government has chosen not to file separate charges of its own.
The problem has been when states aren’t willing to prosecute, or when they can’t successfully bring someone to justice. “Often the federal government will act as a backstop to state prosecutions if they feel the state may have gotten it wrong,” says Little. And when it comes to attacks on African Americans, they’ve often felt the stateshave gotten it wrong: as with cases in the mid-20th century when local prosecutors weren’t willing to charge whites for attacks on black people, and the 1993 federal trial of the police officers who beat Rodney King — after they were acquitted by a Los Angeles jury with no black members.
But regardless of whether South Carolina has come to terms with its racist history, the state government seems pretty eager to convict Roof. Gov. Nikki Haley has said that “we will absolutely want him to get the death penalty.” So it doesn’t look like the federal government is going to need to step in.
It’s probably easier to sentence Roof to death at the state level
Sometimes the feds step in not because they’re worried about a state trial, but because they simply feel it’s important to send a message by convicting someone of a federal crime. That’s what happened with the trial of Dzhokhar Tsarnaev, who was sentenced to death on federal terrorism laws earlier this year for his role in the 2013 Boston Marathon bombing.
That’s the conversation that’s probably going on between federal and state prosecutors. From what we know right now, it might not be possible to support a federal terrorism charge — federal law defines “domestic terrorism” in a way that encompasses what Roof is accused of, but the specific crimes it identifies don’t encompass simple gun attacks. If Roof had plans to go beyond the church shooting, or if someone else was involved in the plot, terrorism charges might come into play.
But even just based on what’s publicly known already, it looks like the federal government would have a strong case for prosecuting Roof for hate crimes.
“The federal government has traditionally taken the role, since particularly the civil rights era, of enforcing statutes to protect individuals who may be targeted because of their race in the South,” Little points out. That’s often been because they don’t trust the states to do it. But it’s a tradition they may want to make a point of continuing.
“There are justice department officials who may say, ‘You know what, South Carolina, this is not just a murder, this is a hate crime,” says Little. “You as a state have chosen not to prohibit hate crimes in a special category; we as the federal government believe that’s the message we need to send with this prosecution.”
That’s a powerful argument. But there’s one big logistical hurdle: the death penalty.
Massachusetts doesn’t have the death penalty, so the only option prosecutors had for getting Tsarnaev sentenced to death was taking him to federal court. But with Roof, prosecutors don’t have to make that choice. And the process of sentencing someone to death is a lot more straightforward at the state level — federal death penalty cases, as the Tsarnaev case showed, can be awfully complicated. There’s a whole process a federal prosecutor has to follow just to be allowed to ask the judge for a death sentence — culminating in the greenlight from the attorney general herself.
“South Carolina may feel they can get convictions and get justice more swiftly for the families of the victims,” says Little. So the question is what kind of message prosecutors want to send — a message that hate crimes won’t be tolerated, or a message that criminals will be quickly caught, convicted, and sent to justice.