On January 9th, 2018, Blaze Bernstein’s corpse was discovered in a shallow grave in Lake Forest, California. Bernstein’s murder came in the wake of the year that had, according to the Anti-Defamation League (ADL), the largest single-year increase of anti-Semitic incidents on record. Bernstein was a 19-year-old gay, Jewish man. His alleged killer is 21-year-old Samuel Woodward, a peer of Bernstein’s from high school. According to an investigation by ProPublica, Woodward has been involved with the Atomwaffen Division, a neo-Nazi group with a violent history. (Among other evidence, ProPublica obtained photographs of Woodward at a Atomwaffen meeting, including a photo in which he gives a straight-armed Nazi salute).
So far, Woodward has not been charged with murder motivated by Bernstein’s religion. He has been charged, however, with murder motivated by Bernstein’s sexual orientation. These two charges may seem comparable, but they actually carry drastically different possible sentences. Woodward’s future rests on the answer to two questions: Did he kill Bernstein? If so, was he motivated by anti-Semitic and/or homophobic hatred?
In January, the Orange County District Attorney’s Office (OCDA) charged Woodward with one felony count of murder, which came along with a sentence of 26 years to life in prison. In August, the District Attorney, Anthony Rackauckas, announced that they were pursuing a hate crime sentencing enhancement, which would increase Woodward’s sentence if they could prove he was motivated by hatred of a specific identity group.
“We will prove that Woodward killed Blaze because Blaze was gay,” said Rackauckas. He added, “We are looking for information that would prove that Woodward…intended to murder Blaze based on factors of hate in addition to sexual orientation.” He went on to state that anyone with information regarding Woodward’s participation in “any organization that promotes hate” should contact his office’s supervising investigator. Here, the DA seems to allude to the Atomwaffen Division and the possibility that anti-Semitism was also at play.
In an interview with New Voices, OCDA Chief of Staff Susan Kang Schroeder explains that in California, a murder that is proved to be a hate crime opens the door to what many consider the most extreme form of punishment: the death penalty. However, the death penalty is only an option if the murder was motivated by race, color, religion, nationality, or national origin. “What it doesn’t cover,” she points out, “is sexual orientation and gender identification.”
In January, California State Senator Janet Nguyen, with the District Attorney’s support, proposed Senate Bill 971, which would expand the cases in which capital punishment would be possible to those involving sexual orientation and gender identification. However, the bill did not pass in when it came to a vote in April. Even if the law was successful in passing during Woodward’s trial, Woodward could not be retroactively charged with the death penalty.
The OCDA is continuing to investigate whether Woodward could have been motivated by forms of hatred other than homophobia. As Schroeder explains, “We haven’t closed the possibility the murder wasn’t committed for others reasons, but currently the evidence we have before us shows that we can prove that the murder was committed because of Bernstein’s sexual orientation.” When asked whether anti-Semitism was being looked into as a motivating factor, Schroeder says that the OCDA is looking into this possibility. Since religion – unlike sexual orientation and gender identification – is a protected class in California, Woodward could face the death penalty if he were charged with murdering Bernstein on the basis of religion.
There are several factors that make hate crimes difficult to prosecute as such, says Brian Levin, director of the Center for the Study of Hate and Extremism at California State University, San Bernardino. “Most hate homicides in the United States are not even prosecuted under hate crime statutes,” he says. A crime must be proven beyond a reasonable doubt to be motivated by hatred, he explains, according to the Supreme Court’s rulings in 1993’s Wisconsin v. Mitchell and 2000’s Apprendi v. New Jersey cases, which cemented the constitutionality of hate crime enhancements. However, the process of adding a hate crime enhancement to an existing charge is not always an easy one. “Adding another dimension to the case might end up putting more information before a jury that already has full plate,” says Levin. Instead, many hate crimes are filed and prosecuted under regular criminal statutes.
In Woodward’s case, the possibility remains that he could face an additional hate crime enhancement on the basis of religion. According to Rabbi Peter Levi, the regional director of the Orange County ADL, both the Orange County Sheriff’s Department and the OCDA have received ADL reports on the Atomwaffen Division, including some information that has not been made available to the general public.
Many of the facts of Woodward’s neo-Nazi activities are now public knowledge, thanks to ProPublica’s reporting. Levi says that these facts have brought a feeling of “particular horror” to both Jewish and LGBT communities across the country. “That wasn’t just an individual that was brutally murdered,” he says. “Both those communities felt like they were targeted in some way based off of Woodward’s affiliation.” Even if anti-Semitism is not proven to be a motivating factor in the crime, Levi says the impact on the Jewish community is still real. “Even without the hate crime charge, simply the affiliation with a Nazi group, the community feels the sting, the harm, and the hurt in this,” he says.
To Levi, this is the importance of naming and prosecuting hate crimes: they affect the entire affiliated community, not just the direct victim of the crime. By bringing a hate crime enhancement charge on the basis of sexual orientation, the OCDA has brought “some level of justice” to the LGBT community at large. “That’s not true of the Jewish community, as of yet,” he says. “The case is still open.”
Spencer Wells is a New Voices reporting fellow and a senior at Western Kentucky University.
Correction: This article previously stated that Senate Bill 971 would add sexual orientation and gender identification as protected classes in California. This is incorrect, and the article has been updated with correct information.
