Three years ago, the Ismail family stared in disbelief as an inferno rose from their convenience store in Northeast San Antonio.
The Conoco food mart at 14330 Nacogdoches Road had been torched by a man Kabiruddin and Mumtaz Ismail didn't know, but whom police said acted out of bias toward them. Their store was one of five targeted by arson or vandalism between 2003 and 2004 whose operators were of foreign descent, according to San Antonio police and arson investigators.

Kabiruddin and his wife, Mumtaz, have lived in San Antonio for more than 25 years and are now U.S. citizens. But to the arsonist, what mattered was that the two are Muslim and originally from Pakistan. That's why the fire — set at about 3 a.m. April 9, 2004 — was classified as a hate crime and the man who pleaded guilty to setting it, 35-year-old Thomas C. Carroll, was sent to prison for 30 years.

That outcome was unusual, however.

Fourteen years after Texas passed its own hate crimes law, prosecutions remain few — eight in the past six years. The state did not keep track of hate crime prosecutions before 2001, but a report issued in 2000 by the Human Rights Commission, a national civil-rights group, said the Texas hate crime law had only been used "a couple of times" since it was first enacted in 1993.

Prosecutors here complain that the law poses the difficult hurdle of proving that suspects are motivated by hatred, and similar concerns have also been heard regarding federal hate crime law, with prosecutors and civil rights groups complaining that the bar is set too high.

Mumtaz Ismail and her son, Shehzad, talk about the family's struggles in rebuilding their convenience store after it was burned down.

In those cases, the government must prove that a defendant committed an offense not only because of a victim's race, color, religion or national origin, but also because of their participation in one of six narrowly defined "federally protected activities" — interfering with someone's voting rights, for example.

As a measure of the current confusion over the effectiveness of hate crime laws, Democrats in Congress and in Austin, including state Sen. Rodney Ellis, the Houston Democrat who pushed for the Texas law, are seeking both to toughen existing measures and study why they aren't being more widely used.

In Austin, a bill being sponsored by state Sens. Leticia Van de Putte, D-San Antonio, and Royce West, D-Dallas, would amend the Texas hate crime law to add the homeless as a protected class. Van de Putte said attacks on the homeless in San Antonio spurred her to support the measure.

A bill introduced by Rep. Marc Veasey, D-Fort Worth, calls for the state attorney general to study how effective the law has been.

It's unclear how these measures will fare as the session's May 28 end date nears.

Ellis pushed for expansion of the state hate crime law in 2001 in the wake of the highly publicized murder of James Byrd Jr., an African American man dragged to his death by three white men. That year, the law was also renamed the James Byrd Jr. Hate Crimes Act.

"We are trying to get more information on why those numbers are where they are," said Jeremy Warren, a spokesman for Ellis. "As much as we'd like to believe that hate crimes aren't occurring, we know that isn't the case."

Speaking out

The FBI defines hate crimes as those motivated by prejudice, hatred or advocacy of violence against victims because of their race, religion, sexual orientation, ethnicity or disability.

A 1968 federal law protects people against violence and intimidation because of their race, color, religion or national origin. It was followed by a patchwork of legislation meant to close loopholes and enhance sentences.

A series of failed attempts to include other groups of people as protected classes under the law also followed. Forty-five states, including Texas, have passed their own hate crime laws.

On May 3, the House passed a bill sponsored by U.S. Rep. John Conyers, D-Michigan, that would add sexual orientation, gender, gender identity and disability as protected classes and increase penalties to up to life in prison if the offenses involved kidnapping, aggravated sexual abuse or an attempt to kill a person protected by the bill.

The so-called "Local Law Enforcement Hate Crimes Prevention Act" proposal would presumably remove hurdles so it can be used more. The bill would also authorize $5 million for fiscal 2008 and 2009 for grants to law enforcement agencies — no more than $100,000 per agency per year — to help cover expenses associated with the investigation and prosecution of hate crimes.

"The point (Conyers) is trying to make is A) these crimes are greatly under-reported, and B) there is a lack of prosecution because locals lack the resources," said Melanie Roussell, a press secretary for Conyers.

In Bexar County, no one has been prosecuted federally for a hate crime in the past eight years, but officials say there likely were prosecutions under the larger civil rights section of federal law.

The arson at the Ismails' store is counted among hundreds of incidents labeled "hate crimes" in Texas since 2000. It was one of 30 such incidents reported in Bexar County and 309 in the state in 2004.

One reason for few prosecutions, say community leaders and advocates, is that victims can be reluctant to report incidents that might well be defined as hate crimes.

"A lot of them, they don't speak out," said Pamela Lim-Jensen, a state licensed Korean-language interpreter in San Antonio. "They have a language barrier, they don't know the law or their rights or they're afraid it might backfire on them."

Sarwat Husain, president of the San Antonio chapter of the Council on American-Islamic Relations, said others won't come forward because they are afraid of a backlash.

"The fear factor is high in the community," Husain said. Hate crime "is under-reported."

Until now, the Ismails have opted not to speak publicly for fear of retaliation.

Today, they proudly talk about the Conoco they struggled two years to rebuild. Shehzad Ismail, their only son, said it was best to speak up in order to educate the community about what took place, and to heal.

Using the law

The Texas hate crime law allows prosecutors to seek stiffer penalties, called enhancements, for lower-level crimes like arson if district attorneys can show the victims were selected "because of a defendant's bias or prejudice" against them.
After complaints from prosecutors that the law was too vague, it was amended in 2001 to list specific categories of people who are protected. It now protects race, religion, color, sex, disability, sexual preference, age and national origin.

But amending the law has yielded little in the way of prosecutions, according to the state judiciary's statistics, which show that districts attorney have pursued hate-crimes enhancements eight times since 2001 — despite more than 1,600 incidents in Texas reported to the FBI during that period.

No one keeps track of state-by-state hate-crime prosecutions, so it is unclear what kind of job Texas is doing. Federal law requires the FBI to collect statistics on hate crime incidents from state and local jurisdictions that voluntarily report them, but not to keep track of prosecutions. In Texas, counties must report to the state's judiciary any time prosecutors file enhancements under the state law, and the outcome.

Prosecutors may choose not to seek an enhancement because there is insufficient evidence that the crime was motivated by hate. Instead, they may opt to prosecute an offender for a more serious crime, like attempted murder, which already carries high penalties, said Rob Kepple, executive director of the Texas District and County Attorneys Association.

"Texas law is already so broad," he said. "It's a good system that accommodates all kinds of motives. In cases where you already have facts that justify the death penalty or a first-degree felony charge, there's very little utility to a hate-crime enhancement."

Beverly McPhail, an adjunct social work professor who runs the Women's Resource Center at the University of Houston, examined the issue as part of her dissertation at the University of Texas at Austin. She interviewed 19 prosecutors and a summary of her findings was published in October in the Prosecutor, a magazine of the National Association of District Attorneys.

She said prosecutors prefer not to include the enhancements because doing so creates an extra evidentiary burden and may lead to acquittal.

"One of the biggest things prosecutors don't like is having to prove bias," McPhail said. "They want to win the case. They don't care how they win the case."

Fighting hate

Carroll, of San Antonio, was suspected of setting fire to at least five businesses operated by Muslims or Hindus, and had been investigated for several weeks. However, the federal government did not prosecute him because it could not show he violated federal hate crime law and the state already was prosecuting him, Assistant U.S. Attorney Bill Baumann and FBI spokesman Erik Vasys said.

The Bexar County district attorney's office — which accounted for half of the state's eight hate crime prosecutions — charged Carroll with arson, a second-degree felony but later re-indicted him under the state's hate crime law. The upgrade raised the potential penalty to a maximum of 99 years in prison.

Carroll was sentenced to 30 years as part of a plea deal in which he admitted setting three of fires because of bias.

"We think (the sentence) sends a strong message," First Assistant District Attorney Cliff Herberg said. "This stuff is not going to be tolerated here."

That message has been clear to the Ismails.

After the fire, a steady flow of customers came with condolences, hugs and hundreds of dollars in donations.

"We're a nation made up of everybody is what people don't realize," said Mark Brownlowe, a repeat customer. "It wouldn't be America otherwise." [Link]