When a historically Black church in Louisville’s Shelby Park neighborhood was damaged by gunfire last week, it had all the elements of what is usually called a hate crime.
The Little Flock Missionary Baptist Church was founded by freed slaves after the Civil War. It was damaged by gunfire in the early morning on June 3 amid historic protests against anti-Black racism. According to police, eyewitnesses saw four white men firing shots in the area.
Hate crimes — or crimes motivated by prejudice or bias — have what the FBI calls a "devastating impact” on families and communities.
In a Facebook video, church Pastor Bernard Crayton called the shooting “nothing new” for his community. “White supremacists and others have been vandalizing Black churches all across this nation,” he said. “It was not our people. It was white people who did this.”
But hate crimes aren’t treated much differently than other crimes under Kentucky state law.
Critics have called Kentucky’s hate crime statute “meaningless” and “toothless,” since it doesn’t come into play until after someone is already convicted.
“The law doesn’t do anything, quite frankly,” said Rob Sanders, commonwealth’s attorney in Kenton County.
A person is not formally accused of a hate crime until the sentencing phase. Even then, it doesn’t lead to a longer prison sentence or larger fines under Kentucky law. Instead, it only allows presiding judges and parole boards to deny probation, shock probation, or parole if an offense is determined to be a hate crime.
“But the judges and parole boards can already deny probation, shock probation, or parole for any reason they want,” Sanders said. “They don’t need a law to give them permission to do something they already had permission to do.”
In 2018, there were 288 hate crimes in Kentucky, according to data from the FBI. That’s the ninth-highest of all 50 states. (Reporting is not mandatory and varies from state to state: Alabama did not report any hate crimes to the FBI, and Mississippi reported only five.)
Although local agencies must collect data on hate crimes, there’s no federal rule requiring agencies share those stats with federal agencies. Hate crimes are notoriously underreported, and dozens of Kentucky towns did not report any hate incidents.
Kentucky’s hate crime law has blind spots. The law doesn't apply to homicide, kidnapping, burglary, or criminal mischief less than $1,000, according to the office of the Jefferson County Commonwealth’s Attorney.
Federal law enforcement can serve as a backstop when state civil rights laws are ineffectual. The FBI is investigating the Little Flock shooting, and authorities could call on federal laws if a bias crime is found.
“The Department of Justice is particularly willing to bring its resources into the mix when a particular state doesn’t have an adequate framework to apply,” said Samuel Marcosson, law professor at the University of Louisville’s Brandeis School of Law.
Federal law enforcement can level its own hate crime charges alongside or even after state charges, Marcosson said. That policy was useful in the 1960s, when all-white juries would acquit perpetrators of violence against civil rights protesters and the federal government would intervene to maintain federal interests in civil rights protections.
In a visit to Louisville last weekend, civil rights leader Rev. Jesse Jackson called on Gov. Andy Beshear to convene a special session to pass hate crime legislation and increase accountability for police shootings.
That same day, Pastor Crayton of Little Flock Missionary Baptist Church implored local and state leaders to “do the right thing” in the fight for justice.
“It was an evil thing that was done,” Crayton said, donning a t-shirt that read “Little Flock Strong.” “I stand this morning not as an angry Black pastor, but one who is thankful to God that no one was killed by these stray bullets,” he said.
Changes to Kentucky law would require action from the state legislature, which has declined to take up the proposal in recent sessions.
State Sen. Gerald Neal, a Democrat from Louisville, proposed legislation last year that would make hate crimes a felony, punishable by a minimum of 10 years in prison. The bill never came up for a vote.
Advocates and some prosecutors want to overhaul the existing hate crime statute and increase penalties, but specifics remain a point of disagreement.
The Jefferson County Commonwealth’s Attorney’s office supports harsher penalties for people who commit hate crimes. However, making hate crimes a separate offense “might make people feel good, but it makes it harder to convict someone,” said Jeffrey Cooke, spokesman for the Jefferson County Commonwealth’s Attorney’s office.
Because hate crimes involve intent, prosecutors have to prove not only that a crime was committed but that the crime was motivated by prejudice or bias, Cooke said.
“If you have a second hate crime, it might make it harder to prove,” Cooke added. “From the prosecutorial standpoint, it complicates our job rather than makes it easier.”
Neal said the critiques are valid and should be debated in earnest by the legislature.
The Louisville senator thinks the anti-racist protests across Kentucky and the COVID-19 pandemic, which has disproportionately affected Black Americans, could be the long awaited opportunity to rectify issues of systemic inequality.
“It’s ironic but I’m glad that we have an opportunity to have this discussion and perhaps we can correct the deficiencies in our actions and our reactions and our responses to obvious, obvious circumstances that call to be rectified,” Neal said.
The issue, he said, is long overdue.
“It’s literally a shame. Shame on the legislature for not taking this particular piece up given our history.”
Graham Ambrose is a Report for America corps member. Contact Graham at gambrose@kycir.org.