The United States Department of Justice enforces federal hate crimes laws that cover certain crimes committed on the basis of race, color, religion, national origin, sexual orientation, gender, gender identity, or disability. The Department of Justice began prosecuting federal hate crimes cases after the enactment of the Civil Rights Act of 1968. The information below explains current federal hate crimes laws.
The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009, 18 U.S.C. § 249
On June 7th, 1998, Mr. James Byrd Jr., an African American, 49-year-old father of three, had left a friend’s anniversary party and was walking home, when three white supremacists picked him up. Mr. Byrd was tied to a truck by three white supremacists, dragged behind it, and decapitated in Jasper, Texas. Mr. Matthew Shepard, a 21-year-old student at the University of Wyoming, was beaten to death and tied to a fence in a field outside of Laramie, Wyoming and left to die. The attack was widely reported due to him being gay, and at the trial, the defense employed a gay panic strategy. This is a legal strategy that asks a jury to find that a victim’s sexual orientation or gender identity is to blame for a defendant’s violent reaction, including murder. This attempts to excuse the loss of self-control and the subsequent assault which implies that LGBTQ lives are worth less than others. But despite widespread of criticism, this defense is still used today.
The murders and subsequent trials brought national and international attention to the desire to amend U.S. hate crime legislation at both the state and federal levels. At that time, Wyoming hate crime laws did not recognize one’s gender, gender identity and sexual orientation as a suspect class, whereas Texas had no hate crime laws at all.
The Shepard Byrd Act (“Act”) is the first statute allowing federal criminal prosecution of hate crimes motivated by the victim’s actual or perceived sexual orientation or gender identity. The Act makes 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. The Act also covers crimes committed because of the actual or perceived religion, national origin, sexual orientation, gender, gender identity, or disability of any person, if the crime affected interstate or foreign commerce or occurred within federal special maritime or territorial jurisdiction.
The Act was passed on October 22, 2009, and signed into law by President Barack Obama on October 28, 2009, as a rider to the National Defense Authorization Act for 2010 (H.R. 2647). It was a response to the 1998 murders of Matthew Shepard and James Byrd Jr., and expanded the 1969 United States federal hate-crime law to include crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity, or disability. It allows the federal government to provide assistance in the investigation and prosecution of hate crimes – or, in limited circumstances, to investigate and prosecute hate crime cases when a locality is unable or unwilling to prosecute.
It provides funding and technical assistance to state, local, and tribal jurisdictions to help them to more effectively investigate and prosecute hate crimes. It creates a new federal criminal law which criminalizes willfully causing bodily injury (or attempting to do so with fire, firearm, or other dangerous weapon) when: (1) the crime was committed because of the actual or perceived race, color, religion, national origin of any person or (2) the crime was committed because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person and the crime affected interstate or foreign commerce or occurred within federal special maritime and territorial jurisdiction.
It has three significant subsections: Subsection (a)(1) criminalizes violent acts (and attempts to commit violent acts undertaken with a dangerous weapon) when those acts occur because of the actual or perceived race, color, religion, or national origin of any person. This section of the statute has a broader reach than existing hate crime statutes. Section 249(a)(1) was passed pursuant to Congress’s Thirteenth Amendment authority to eradicate badges and incidents of slavery. The government need prove no other “jurisdictional” element to obtain a conviction.
Subsection (a)(2) of § 249 protects a wider class of victims. Subsection (a)(2) criminalizes acts of violence (and attempts to commit violent acts undertaken with a dangerous weapon) when motivated by the actual or perceived gender, disability, sexual orientation, or gender identity of any person. It applies to violent acts motivated by hostility against those religions and national origins which were not considered to be “races” at the time the Thirteenth Amendment was passed. This portion of the statute was passed pursuant to Congress’s Commerce Clause authority. Thus, to obtain a conviction, the government must prove that the crime was in or affected interstate or foreign commerce. Subsection (a)(2)(B) of the statute contains a detailed description of the ways the commerce clause element may be fulfilled.
Subsection (a)(3) of § 249 provides for prosecution of crimes committed because of any of the characteristics defined in (a)(1) or (a)(2), whenever such crimes occur within the Special Maritime and Territorial Jurisdiction (SMTJ) of the United States.
The statute criminalizes only violent acts resulting in bodily injury or attempts to inflict bodily injury, through the use of fire, firearms, explosive and incendiary devices, or other dangerous weapons. The statute does not criminalize threats of violence. Threats to inflict physical injury may be prosecutable under other hate crimes statutes, such as 42 U.S.C. § 3631 or 18 U.S.C. § 245. Such threats may also be prosecutable under generally applicable federal laws preventing interstate communication of threats.
Who supported the new federal hate crime law? The bill attracted the support of nearly 300 civil rights, religious, educational, professional, and civic organizations – and virtually every major law enforcement organization in the country, including the International Association of Chiefs of Police, 26 state Attorneys General, and the National District Attorneys Association.
In May 2011, a man in Arkansas pleaded guilty under the Act to running a car containing five Hispanic men off the road. As a result, he became the first person ever convicted under the Act. A second man involved in the same incident was later convicted under the Act; his appeal of that conviction was denied on August 6, 2012.
In August 2011, one man in New Mexico pleaded guilty to branding a swastika into the arm of a developmentally disabled man of Navajo descent. A second man entered a guilty plea to conspiracy to commit a federal hate crime. The two men were accused of branding the victim, shaving a swastika into his head, and writing the words “white power” and the acronym “KKK” on his body. A third man in June 2011, entered a guilty plea to conspiracy to commit a federal hate crime. All three men were charged under the Act in December 2010.
On March 15, 2012, the Kentucky State Police assisted the FBI in arresting David Jenkins, Anthony Jenkins, Mable Jenkins, and Alexis Jenkins of Partridge, Kentucky, for the beating of Kevin Pennington during a late-night attack in April 2011 at Kingdom Come State Park, near Cumberland. The push came from the gay-rights group Kentucky Equality Federation, whose president, Jordan Palmer, began lobbying the U.S. Attorney for the Eastern District of Kentucky in August 2011 to prosecute after stating he had no confidence in the Harlan County Commonwealth’s Attorney to act.
In 2016, for the first time the Justice Department used the Act to bring criminal charges against a person for selecting a victim because of their gender identity. In that case Joshua Brandon Vallum pled guilty to murdering Mercedes Williamson in 2015 because she was transgender, in violation of the Act. In 2017, he was “sentenced to 49 years in prison and fined $20,000 for killing his ex-girlfriend because she was transgender.” The Justice Department reported that “[t]his is the first case prosecuted under the Hate Crimes Prevention Act involving a victim targeted because of gender identity.”
The constitutionality of the law was challenged in a 2010 lawsuit filed by the Thomas More Law Center; the lawsuit was dismissed. William Hatch, who pleaded guilty to a hate crime in the New Mexico case, also contested the law on Constitutional grounds. The Tenth Circuit Court of Appeals heard the case (U.S. v. Hatch) and upheld the conviction on June 3, 2013.
Criminal Interference with Right to Fair Housing, 42 U.S.C. § 3631
This statute makes it a crime to use or threaten to use force to interfere with housing rights because of the victim’s race, color, religion, sex, disability, familial status, or national origin.
Damage to Religious Property, Church Arson Prevention Act, 18 U.S.C. § 247
This statute prohibits the intentional defacement, damage, or destruction of religious real property because of the religious nature of the property, where the crime affects interstate or foreign commerce, or because of the race, color, or ethnic characteristics of the people associated with the property. The statute also criminalizes the intentional obstruction by force, or threat of force of any person in the enjoyment of that person’s free exercise of religious beliefs.
Violent Interference with Federally Protected Rights, 18 U.S.C. § 245
This statute makes it a crime to use or threaten to use force to willfully interfere with a person’s participation in a federally protected activity because of race, color, religion, or national origin. Federally protected activities include public education, employment, jury service, travel, or the enjoyment of public accommodations. Under this statute, it is also a crime to use or threaten to use force against those who are assisting and supporting others in participating in these federally protected activities.
Conspiracy Against Rights, 18 U.S.C. § 241
This statute makes it unlawful for two or more persons to conspire to injure, threaten, or intimidate a person in any state, territory, or district in the free exercise or enjoyment of any right or privilege secured to the individual by the U.S. Constitution or the laws of the U.S.
State Laws, Codes, and Statutes
Hate crime laws in states and territories vary widely across jurisdictions.
• Bias motivations: Different jurisdictions define hate crimes to include different bias motivations.
• Penalty enhancements: Laws in some jurisdictions increase the sentence for crimes motivated by identified factors. At least 46 states and the District of Columbia have statutes with penalties for bias-motivated crimes.
• Data collection: Some jurisdictions require collecting data on hate crimes. Data provides better transparency into crimes that are occurring and can help states allocate support and resources to communities in greatest need.
Even if a state or territory does not have a hate crimes law, hate crimes can still be reported to the Federal Bureau of Investigation (FBI). State hate crime laws impose tougher penalties on criminals who target their victims because of the victim’s race, religion, ethnicity, sexual orientation, gender, gender identity, or disability. State hate crime statutes are typically “penalty enhancement” statutes, which means that they increase the penalty for an offense if the victim or target is intentionally selected for violence because of his/her personal characteristics.
The starting point is to recognize that criminal activity motivated by bias is different from other criminal conduct. First, these crimes occur because of the perpetrator’s bias or hostility against the victim on the basis of actual or perceived status—the victim’s race, religion, national origin, gender, gender identity, sexual orientation, or disability is the reason for the crime. In the vast majority of these crimes, absent the victim’s personal characteristic, no crime would occur at all.
Second, hate violence specifically targets individuals because of their personal, immutable characteristics. These are, therefore, very personal crimes, with very special emotional and psychological impact on the victim—and the victim’s community. Hate crimes physically wound and effectively intimidate other members of the victim’s community, leaving them feeling terrorized, isolated, vulnerable, and unprotected by the law. By making the victim’s community fearful, angry, and suspicious of other groups—and of the power structure that is supposed to protect them—these incidents can damage the fabric of our society and fragment communities.
Hate crimes are message crimes. Vandals spray-paint messages featuring threats and a swastika. As Supreme Court Justice Sandra Day O’Connor wrote in a 2003 case involving a First Amendment challenge to the Commonwealth of Virginia’s cross-burning statute:… the burning cross often serves as a message of intimidation, designed to inspire in the victim a fear of bodily harm. Moreover, the history of violence associated with the Klan shows that the possibility of injury or death is not just hypothetical.…when a cross burning is used to intimidate, few if any messages are more powerful. (Virginia v. Black, 538 U.S. 343, 357 )
In addition, over the past thirty years, many studies and surveys about hate violence—and the impact on the victims—indicate that these crimes are qualitatively different from other crimes. They are more serious (“…hate crimes are inherently more harmful to the social fabric than comparable crimes without bias motive,” McDevitt, Balboni, Garcia, and Gu, 2001); more likely to involve violence (“…the victim of a hate crime assault is four times more likely to require hospital treatment than the victim of a parallel assault.” McDevitt and Levin, 1993); more harmful in their aftermath (“The negative effects of hate crimes may be longer lasting than those of other crimes.” Herek, Gillis, and Cogan, 1999).
Few individual crimes can spark riots, but bias-motivated crimes can. Civic leaders and police officials recognize that strong enforcement of these laws have a deterrent impact and can limit the potential for a hate crime incident to explode into a cycle of violence and widespread community disturbances.
The FBI and law enforcement officials recognize the special impact of hate crimes. The FBI has been the nation’s repository for crime statistics since 1930. It publishes an annual encyclopedic report called Crime in the United States. Every year, the FBI publishes two—only two—other separate reports on crime issues that it believes have a dramatic impact on Americans. One report is focused on law enforcement officers killed in the line of duty and the other is about hate crimes in America. Race-based hate crimes were most frequent, second were religion-based, and third most frequent were crimes against gay men and lesbians.
Do hate crimes infringe on individual free speech rights? Hate crime legislation is not meant to punish people for their beliefs or speech, but for their criminal actions. The First Amendment does not protect violence, nor does it prevent the government from imposing criminal penalties for violent discriminatory conduct directed against victims on the basis of their personal characteristics. It is only when an individual commits a crime based on those biased beliefs and intentionally targets another for violence or vandalism that a hate crime statute can be triggered.
Under these laws, a perpetrator can face more severe penalties only if the prosecutor can demonstrate, beyond a reasonable doubt, that the victim was intentionally targeted on the basis of his or her personal characteristics because of the perpetrator’s bias against the victim. We all know the work to eradicate racism, bigotry, and homophobia cannot be legislated out of existence. But hate crime laws must evolve to increase enforcement and strengthening of the laws. As noted, not all 50 states have hate crime laws. South Carolina has no hate crime statutes, even after nine African American people were murdered at Emanuel AME Church in the summer of 2015 along with Wyoming and Arkansas. The Act was named after Mr. Shepard, a gay student in Wyoming who was brutally murdered but Wyoming has not passed its own legislation. The Wyoming House Judiciary Committee voted to table what would have been the state’s first hate crime law, American Samoa, Guam, Northern Mariana Islands and the US Virgin Islands also do not have hate crimes laws, according to the Justice Department.
Hate violence mandates priority attention—and hate crime laws help ensure they receive it. The recent violence and killings against Mr., Narayange Bodhi, a Sri Lankan man bloodied up in a subway in New York, Mr. Danilo Yuchang, a Filipino/Chinese man also assaulted in San Francisco, Mr. Vicha Ratanapakdee, from Thailand, died after he was brutally attacked while out on a morning walk, Ms. Xiao Zhen Xie, whose face was swollen and bloodied after an unprovoked assault or the people gunned down in Georgia: Ms. Soon Chung Park, Ms. Hyun Jung Grant, Ms. Suncha Kim, and Ms. Yong Ae Yue, Delaina Ashley Yaun, Paul Andre Michels, Xiaojie Tan, and Daoyou Feng, underscores the need for vigilance and accountability.
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