he deadly violence in Charlottesville, Virginia, over the weekend, had the hallmarks of a tactic increasingly employed by Islamic State sympathizers in Europe: the use of a vehicle as a weapon of terror.
James Alex Fields Jr., a 20-year-old Ohio man, rammed his car into a group of counterprotesters at a white nationalist rally Saturday, killing one person and injuring 19 others.
But was the violence a hate crime or an act of domestic terrorism, and how should it be prosecuted?
It is a dilemma that prosecutors face as they investigate the attack and consider criminal charges against Fields.
State charges filed
Fields is being held on state charges of second-degree murder, malicious wounding and failure to stop at the scene of an accident that resulted in a death. Under Virginia law, conviction of second-degree murder carries a penalty of up to 40 years in prison.
But additional charges could follow as investigators from the Department of Justice and the FBI press forward with a civil rights investigation that was opened Saturday.
In a statement issued Sunday, the Justice Department said one or more hate crime statutes “may be implicated by (Saturday’s) tragic attack.”
While the department did not rule out bringing terrorism charges in the case, it said that doing so requires “enough evidence to be suspicious that the suspect intended to send a message and not just harm immediate victims.”
U.S. Attorney General Jeff Sessions said Monday the “evil act” in Charlottesville meets the legal definition of domestic terrorism.
“It does meet the definition of domestic terrorism in our statute,” Sessions said on ABC’s Good Morning America. “We are pursuing it in the Department of Justice in every way that we can make a case. You can be sure we will charge and advance the investigation towards the most serious charges that can be brought because this is unequivocally an unacceptable, evil attack.”
Domestic terrorism prosecutions rare
Historically, federal prosecutors have rarely prosecuted acts of domestic terrorism as terrorism and instead have to use traditional criminal statutes such as hate crime laws to bring charges.
That is partly because while federal law makes domestic terrorism a crime, it does not offer a specific charge for such acts.
Brian Levin, a criminologist and director of the Center for the Study of Hate and Extremism at California State University, said that the Charlottesville attack could be prosecuted as either a hate crime or an act of domestic terrorism.
Federal law defines domestic terrorism as acts intended to “intimidate or coerce” the public or influence government policy or action through “mass destruction, assassination or kidnapping.”
The FBI defines a hate crime as a criminal offense motivated by bias against race, religion, disability, sexual orientation, ethnicity, gender or gender identity.
Levin said “it might very well be easier for prosecutors to use the traditional hate crime statutes just because of the burdens of proof.”
Oklahoma City bombing
That is the approach prosecutors have taken in a string of cases widely deemed as acts of domestic terrorism.
In the 1995 Oklahoma City bombing case, the deadliest act of domestic terrorism before the attacks of Sept. 11, 2001, Timothy McVeigh was charged with the use of a weapon of mass destruction, destruction with the use of explosives and eight counts of murder but not domestic terrorism.
In 2016, Dylann Roof, a 21-year-old white supremacist, was convicted of 33 counts of federal hate crimes for killing nine black people at a South Carolina church in 2015.
Prosecutors “have had a high degree of success using civil rights statutes,” Levin said.
While terrorism cases are generally handled by the Justice Department’s national security division, hate crimes are handled by the civil rights division’s criminal section.
Bringing terrorism-related charges will not necessarily help the prosecutors’ case against Fields, Levin said.
“On the one hand, there is a legitimate call by the community for this to be identified and prosecuted for what it is, which is both terrorism and hate crime, but we also have a high burden of legal requirements for prosecutors and give them discretion to try and prosecute these cases to the best of their ability,” he said.
Accurate charge matters
Frederick Lawrence, a distinguished lecturer at the Georgetown Law Center, said that accurately describing a crime does matter.
“The criminal law is designed not only to punish but to express the highest values of the society,” Lawrence said. “What took place here allegedly is not merely a homicide, it’s a homicide with the kind of motivation that is particularly dangerous not only to the victim but to all people connected to the victim and, indeed, to the entire society.”