White men accused of killing Ahmaud Arbery won't face Georgia hate crime charges. Here's why.

Two white men accused of fatally shooting Ahmaud Arbery in what his family is calling a modern-day lynching will not face hate crime charges in Georgia, according to state investigators.

That's because Georgia is one of four states in the U.S. that doesn't have a hate crimes prevention law, according to the Department of Justice. If someone commits a crime motivated by bias, statewide authorities are unable to pursue additional charges or enhanced penalties for the perpetrator.  

"There's no hate crime in Georgia," Georgia Bureau of Investigations Director Vic Reynolds said in a press conference Friday when asked whether the men would face those charges.

Retired police officer Gregory McMichael, 64, and his son Travis, 34, were arrested by Glynn County police and charged with murder and aggravated assault Thursday night. The arrest came just 36 hours after the Georgia Bureau of Investigation began assisting in the probe, which began more than 10 weeks ago.

Reynolds said the video of the incident that has been spread widely on social media was a key piece of evidence in the case. 

Ahmaud Arbery was killed Feb. 23 outside Brunswick, Ga., in Glynn County.

He also said the department will be investigating William Bryan, the man who filmed the incident, to determine whether he should be arrested too. 

"We are going to go wherever the evidence takes us," Reynolds said. "In a perfect world, we would have preferred to have been asked to become involved in February, of course."

Arbery, who was black, was killed Feb. 23 on a residential street about 2 miles from his home outside Brunswick, Georgia. Gregory McMichael told police they saw him running and believed he was a burglary suspect, so they armed themselves, got in a truck and followed him. They told police Arbery attacked them after one of the men got out of the truck with a shotgun. 

Bryan, who joined the father and son in "hot pursuit" of Arbery, recorded the killing on video, according to an internal memo obtained by USA TODAY.

But Arbery's family and their attorneys say Arbery was out for a jog when he was killed and believe he was the victim of racial profiling.

Why Georgia doesn't have a hate crimes law

A bill that would have penalized crimes committed out of bias against race, color, religion or sexual orientation passed the Georgia House last year, but the bill failed in the state Senate.

The Georgia Legislative Black Caucus issued a statement Thursday encouraging the Senate to take up the bill when it reconvenes in June.

"In 2020, our state and our country have yet to reconcile with the vestiges of racism. At a time when we are uniting to fight against a global pandemic, another disease rears its head to again take an innocent life," the caucus said.

Georgia passed a hate crime bill in 2000, but it did not list specific protected groups, and the Georgia Supreme Court threw it out because it was "unconstitutionally vague."

Arkansas, South Carolina and Wyoming also do not have hate crimes laws, along with American Samoa, Guam, the Northern Mariana Islands, and the U.S. Virgin Islands, according to the DOJ. Seventeen states and Puerto Rico have hate crimes laws but don’t require data collection on hate crimes.

Lawyers and proponents of hate crimes laws note that while Indiana technically has a hate crimes law on the books, the law is too vague to be implemented.

"It’s an atrocious law," said Allison Padilla-Goodman, vice president of the southern division of the Anti-Defamation League. "The DOJ may say yes, they checked the box and got a law passed, but most groups in the know do not qualify them a state that has a hate crimes law."

The Rev. James Woodall, president of the Georgia NAACP, said in a press conference Friday that the organization was in support of hate crimes legislation but had not endorsed a particular bill. The NAACP is more concerned about ensuring justice within the existing legal framework, he said.

"We still have to make sure that the laws already on the books are enforced," Woodall said. "We already have a murder statute."

Asked about whether he would support a hate crimes prevention bill, Georgia Gov. Brian Kemp said in a statement that "we know conversations about legislation are already underway, and we will work through the process when the General Assembly reconvenes."

Federal hate crime charge may still be an option

Even if a state or territory does not have a hate crimes law, hate crimes can still be reported to the FBI, according to the DOJ.

"If after the (Arbery) investigation is completed, and it was a hate crime, there’s still the opportunity to bring federal hate crime charges," NAACP President Derrick Johnson said in a press conference Friday.

In South Carolina, for example, which does not have a state hate crimes law, the white supremacist who fatally shot nine African Americans at the Emanuel African Methodist Episcopal Church in Charleston in 2015 later faced federal hate crime charges.

Xavier Persad, senior legislative counsel at the Human Rights Campaign, said his organization has called on Attorney General Bill Barr to investigate the incident under federal hate crime law.

"Hate crimes are different from a regular crime. It’s doesn’t just affect an individual and their families, but the entire community," Padilla-Goodman said. "We’ve been through many high-profile, just devastating hate crimes in this country over the last few years, between Pittsburgh and El Paso, and I think there’s a lot more understanding of the necessity of a hate crimes bill."

The DOJ says that is enforces federal hate crimes laws that cover crimes motivated by bias against race, color, religion, national origin, sexual orientation, gender, gender identity or disability.

There were an average of about 204,000 hate crime victimizations each year between 2013 and 2017, according to the DOJ's Bureau of Justice Statistics.

Both the Bureau of Justice Statistics and the FBI found that a majority of hate crimes were motivated by a bias against race or ethnicity. Of those motivated by bias against race or ethnicity, most were anti-black or anti-African American, the FBI reported in 2018.

"Year after year, the largest target of hate crimes is race-motivated hate crimes, and year after year, the most targeted group is African Americans," Padilla-Goodman said. "Addressing hate crimes is crucial for everyone, but we cannot ignore the role of race."

Persad said that FBI statistics fail to reflect the full extent of the problem due to underreporting.

"State legislators must stop turning a blind eye to the persistent scourge of bias-motivated crimes and work swiftly to enact fully-inclusive hate crime protections," Persad said.