From left, Tahseen Ali Ahmad, Kinnan Abdalhamid and Hisham Awartani.
CNN  — 

The shooting of three Palestinian college students in Vermont has prompted calls for the suspect to be charged with a hate crime.

Jason J. Eaton, 48, was arrested Sunday and charged with three counts of attempted second-degree murder in connection with the shooting. He has pleaded not guilty.

Eaton is accused of shooting the three students Saturday night as they walked in front of his apartment building while having a conversation in Arabic and English, according to Burlington Police Chief Jon Murad. Two of the men were wearing keffiyehs, traditional scarves worn across the Middle East but associated with Palestinian identity and resistance, at the time of the attack, Murad said.

Jason Eaton

Authorities have yet to determine a motive in the attack but said they are investigating whether the incident was motivated by hate. Families of the victims and civil rights groups have demanded the attack be investigated as a hate crime, linking the shootings to the concerning rise in anti-Muslim and anti-Arab bias incidents in the US since the latest war between Israel and Hamas began in October.

But Chittenden County State’s Attorney Sarah George, whose office would be tasked with prosecuting those charges, urged caution.

“When you add a hate crime enhancement that changes things,” George said at a news conference Monday.

“It means we have to actually prove beyond a reasonable doubt an additional element of the crime. Sometimes, that’s quite clear based on things that might have been said by the defendant or things that may have been immediately present in an apartment or online, but we do need direct and great evidence to support that additional element.” 

What is a hate crime?

At the federal level, a hate crime is a criminal act that is motivated by bias, according to the Justice Department.

When used in this context, hate does not refer to anger or rage, but rather “bias against people or groups with specific characteristics that are defined by the law,” according to the DOJ.

Bias-motivated crimes are often violent and can include “assault, murder, arson, vandalism, or threats to commit such crimes,” the DOJ said. Hate crime charges can also extend to someone plotting to or asking someone to commit the crimes even if the crimes are never actually committed.

According to the FBI, in 2022, 13,278 individuals were reportedly victims of hate crimes. Of the incidents tracked by the FBI that were motivated by a single bias, 59.1% were based on race, ethnicity, or ancestry, 17.3% were based on religion and 17.2% were based on sexual orientation.

Crimes based on gender identity accounted for 4% of hate crimes, 1.5% were based on disability and less than 1% on gender.

The FBI collects and publishes data on hate crimes from state and local agencies but reporting statistics to the bureau is voluntary and only about 80% of agencies submit data.

Accurately tracking hate crimes is a challenge because fewer than half of victims report hate crimes to police, according to the FBI’s National Crime Victimization Survey. This means the actual number of annual hate crimes in the US is likely underreported.

What is the difference between a federal and state hate crime?

Hate crimes can be prosecuted at the federal level and state level.

Hate crime laws at the federal level ​​involve crimes “committed on the basis of the victim’s perceived or actual race, color, religion, national origin, sexual orientation, gender, gender identity, or disability,” according to the Justice Department.

Most states and US territories also have hate crime laws that are enforced by local and state courts.

Elliot Williams, CNN legal analyst and former deputy assistant attorney general at the Justice Department, said a person can be charged with a federal and state hate crime at the same time, but who prosecutes the charges depends on several factors, including where the crime took place.

“Before bringing federal hate crime charges, the attorney general must certify in writing that the prosecution won’t get in the way of a state case, or that it’s in the public interest for the feds to bring a case,” Williams said.

There are also certain factors prosecutors consider when deciding to charge a case, Williams noted.

“Number one, what is readily provable? What do prosecutors believe they have the evidence to win and get past the jury?,” Williams said. “Number two, where is the most impactful sentencing decision going to be able to be made? And sometimes that might be at the state level and the federal government might defer to the state before moving forward.”

Why would it be difficult to charge someone with a hate crime?

On Monday, Burlington Police Chief Jon Murad told CNN’s Erin Burnett the attack “absolutely was a hateful act. But whether or not we can cross the legal threshold in order to determine that it is a hate crime is a different matter.”

While this might sound like careful legal speak, Elie Honig, CNN senior legal analyst and a former New Jersey and federal prosecutor, said in order to convict someone of a hate crime prosecutors have to demonstrate beyond a reasonable doubt that racial hatred was a motivating factor – which is a considerable legal hurdle.

“That can be more difficult than it might appear at first blush,” Honig said. “In hate crimes, you have to prove a specific motive. You have to prove a), that the person committed the crime and b) that he did it for a specific reason.”

When considering a hate crime charge, Honig said prosecutors will look at potential evidence, for example, the suspect’s negative social media posts about race and ethnicity, statements they have made to family and friends or a confession after an arrest.

But authorities caution that finding such evidence can take time. On Monday, Sarah George, Chittenden County state attorney, said, “there is no question” the attack was a hateful act, but said authorities do not yet have enough evidence to support a hate crime enhancement.

The Justice Department said it is also investigating whether the incident is a hate crime.

When did the Justice Department begin prosecuting hate crimes?

The Justice Department began prosecuting federal hate crime cases after the Civil Rights Act of 1968 was signed into law.

Over the years, Congress passed laws that expanded protected categories and increased the penalties for committing hate crimes. In June 1998, James Byrd, Jr., a Black man from Jasper, Texas, was tied to the back of a truck and dragged to death by White supremacists in what was considered to be a modern day lynching. Months later, Matthew Shepard was attacked and beaten in Wyoming for being gay. He died six days later in a hospital.

Their murders shocked the nation and later moved Congress to pass a new hate crimes statute.

The Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act removed the provision that the victim had to be engaged in a federally protected activity, such as voting, when the crime occurred. It is the first statute to allow criminal prosecution of crimes motivated by a victims perceived sexual orientation, according to the Department of Justice, and made it “a federal crime to willfully cause bodily injury, or attempt to do so using a dangerous weapon, because of the victim’s actual or perceived race, color, religion, or national origin.”

CNN’s Eric Levenson, Elizabeth Wolfe, Tori Morales Pinales and Melissa Alonso contributed to this report.