A. Federal Hate Crime Provisions
The Criminal Code of the United States Federal Government treats bias-motivated crimes as specific offenses. Federal hate crimes legislation, 18 USC 245, was first adopted in 1968 and allows federal authorities to investigate and punish crimes motivated by bias towards a person’s race, religion, or national origin andbecause of a person’s participation in one of six federally protected activities.
The dual requirement of the federal statute, which obliges federal prosecutors to demonstrate that a hate crime was committed both because of bias and because of the victim’s participation in a federally protected activity, limits the scope for federal prosecutions of hate crimes. Indeed, most hate crime prosecutions are undertaken under state laws. In more than one instance though, federal prosecutors have been unable to charge bias crime suspects at the federal level because of this statutory requirement. In other cases, prosecutions on federal charges failed because of the double requirements that crimes were both motivated by bias and intended to obstruct the victim’s exercise of federally protected activities.
Other federal laws concerning hate crimes include the Church Arson Prevention Act of 1996, which prohibits intentional desecration or damage to religious property as well as interference with the enjoyment of any person’s exercise of religious beliefs, and the Fair Housing Act of 1968, which prohibits “housing-related violence on the basis of race, color, religion, sex, handicap, familial status, or national origin,” including such crimes as cross burnings, arson, fire bombings, vandalism to property, written and oral threats, and assaults on persons attempting to exercise their fair housing rights.
A range of nongovernmental organizations campaigned in 2007 for the enactment of the Local Law Enforcement Hate Crime Prevention Act of 2007 as a principal federal measure to address bias crimes in the United States, in particular by providing for enhanced federal assistance to local law enforcement. The law would also bring violent hate crimes based on sexual orientation, gender, gender identity, and disability bias within the scope of federal action to combat hate crime. Numerous members of the Leadership Conference on Civil Rights (LCCR), including Human Rights First, endorsed the bill.
The proposed law would also have eliminated the requirement that prosecutors must demonstrate that a victim was targeted expressly because of that person’s participation in one of the six federally protected categories. A principal argument for the law is that it will provide needed federal resources, including funding and investigative support, for local law enforcement and prosecutors confronting these crimes. The contrast between the lack of a federal response in Wyoming after the October 12, 1998, homophobic murder of 21-year-old Matthew Shepard near Laramie, and investigations into the racist murder of James Byrd, Jr. in Texas, illustrates one reason why representatives of local law enforcement support largely support the current bill.
The Laramie, Wyoming Sheriff’s Office had to furlough five deputies in order to cover the more than $150,000 that it cost to investigate Matthew Shepard’s murder. Yet when Jasper, Texas investigated the lynching of James Byrd, Jr., it received $284,000 in federal funds because Byrd’s murder was motivated by race, rather than sexual orientation. This need for broader training and assistance has prompted almost every major law enforcement organization and 26 state attorneys general to support the legislation.
In advocating passage of the Act, the Leadership Conference on Civil Rights stated: “Current hate crimes law leaves federal prosecutors powerless to intervene in bias-motivated crimes when they cannot also establish that the crime was committed because of the victim’s involvement in a ‘federally protected activity,’ such as serving on a jury, attending a public school, or voting.” At the same time, while limited federal support is available to police and prosecutors at the state and local level to confront violent hate crimes, this assistance is not available in cases of sexual orientation, gender, gender identity, or disability bias crimes. Thus, there is now no federal back-stop to the efforts—or indifference—of local law enforcement and prosecutors to combat such crimes. The Act would also specifically provide for financial as well as nonfinancial “technical, forensic, and prosecutorial assistance” to state and local law enforcement bodies for investigating and prosecuting hate crimes. Further, the Act would bring the terms of federal criminal law regarding hate crimes into line with the monitoring requirements of the Hate Crime Statistics Act.
Those who have supported the bill include 28 state Attorneys General, leaders of the nation’s major police organizations and over 280 national law enforcement, professional, education, civil rights, religious, and civic organizations, including Human Rights First. Supporters from the field of law enforcement include the National Coalition of Public Safety Officers, National Sheriff’s Association, Major Cities Chiefs Association, the National District Attorneys Association, Police Executive Research Forum (PERF), Police Foundation, the Texas Police Chiefs Association, the International Association of Chiefs of Police, and others. Law enforcement supporters have cited both the expanded federal assistance made available under the Act to help local law enforcement address hate crimes as well as the need to protect the “well-being of all citizens, regardless of their personal characteristics and values.”
Ultimately though, efforts to adopt the Local Law Enforcement Hate Crime Prevention Act of 2007 (LLEHCPA) were unsuccessful. The LLEHCPA which was passed by both houses of Congress, but was ultimately withdrawn in the face of a promised veto by President George W. Bush.