The Framework of Criminal Law
Legislation on Bias-motivated Violence
|Bias-motivated Violent Crimes as Specific Offenses||Bias as an Express General Aggravating Factor||Bias as an Aggravating Factor in Specific Common Crimes|
Bias Types Covered by Provisions on Aggravating Circumstances 
|Race/National Origin/Ethnicity||Religion||Sexual Orientation||Gender||Disability||Other|
Federal Hate Crime Laws
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, with the 2009 enactment of the Matthew Shepard and James Byrd, Jr. Hate Crime Prevention Act, currently allows federal authorities to investigate and punish crimes motivated by bias towards a person’s race, religion, national origin, sexual orientation, gender identity, or disability.
In 2009, the U.S. Congress passed and President Obama signed into law the Matthew Shepard and James Byrd, Jr. Hate Crime Prevention Act. The Act strengthens existing laws by giving the Department of Justice (DOJ) the power in certain cases to investigate and prosecute bias-motivated violence by providing the DOJ with jurisdiction over crimes of violence where the perpetrator has selected the victim because of the person’s actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity or disability. It also makes grants available to state and local communities to train law enforcement officers or assist in state and local investigations and prosecutions of bias-motivated crimes.
While 18 USC 245 deals with a wide range of violent crime, separate legislation was passed to specifically address destruction of property of religious institutions. The Church Arson Prevention Act of 1996, 18 USC 247, prohibits the intentional “defacement damage, or destruction” of religious property and institutions because of the “religious, racial, or ethnic characteristics of that property” and the “intentional obstruction” by force of a person’s “free exercise of religious belief.”
In 1994, the United States Congress passed the Hate Crimes Sentencing Enhancement Act (28 USC 994), which required the U.S. Sentencing Commission to increase penalties for crimes committed because of animus towards a person’s “actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person.”
State Hate Crime Laws
A large majority of all hate crime investigations and prosecutions are conducted at the state and local levels. Concurrent Federal-State jurisdiction over hate crime cases can occur when the “state lacks jurisdiction or declines to assume jurisdiction, where the state requests the Federal Government assume jurisdiction, or where actions by state and local law enforcement officials have left demonstrably unvindicated the federal interest in eradicating bias-motivated violence.”
Forty-five of the fifty states and the District of Columbia either have separate hate crime legislation or allow bias motivation in ordinary criminal offenses to be taken into account as aggravating circumstances in sentencing. These provisions all cover crimes committed out of bias against the victim’s race, ethnicity, or religion. Arkansas, Georgia, Indiana, South Carolina, and Wyoming do not have any form of hate crime legislation.
- The laws of 30 states and the District of Columbia punish bias crimes based on sexual orientation.
- The laws of 30 states and the District of Columbia punish bias crimes based on disability.
- The laws of 26 states and the District of Columbia punish bias crimes based on gender.
- The laws of 10 states and the District of Columbia currently punish bias crimes based on transgender/gender identity.
- The laws of California, Connecticut, Washington D.C., Missouri, New Mexico, Pennsylvania, and Vermont punish bias crimes on the basis of all of the above-mentioned categories: race, religion, ethnicity, sexual orientation, disability, gender, and gender identity.
- Forty-two states and the District of Columbia have either general or specific statutory provisions that criminalize institutional vandalism.
Bias-motivated Violent Crimes as Separate Offenses
Many states have legislation that treats hate crimes as specific offences. For example, in the state of Washington, Malicious Harassment (RCW 9A.36.080) is the sole state law punishing specific hate crimes as a separate offense. A person is guilty of malicious harassment if one, motivated by bias towards one’s race, religion, national origin, sexual orientation, gender, or handicap, causes (a) physical injury to another person, (b) physical damage to property, or (c) “threatens a specific person or group of persons and places that person, or members of the specific group of persons, in reasonable fear of harm to person or property.”
In the state of New York, when a person commits a hate crime “he or she commits a specified offense and either: (a) intentionally selects the person against whom the offense is committed or intended to be committed in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct.” Section 485.10 of the New York State law outlines sentencing provisions, including minimum and maximum sentences in the commission of felony hate crimes and penalty enhancements for certain misdemeanor classes of hate crimes.
Similarly, in the state of Massachusetts, there is a separate offense of assault or battery for the purpose of intimidation (chapter 265, section 39 of the criminal code). This provides for punishment of a person “who commits an assault or a battery upon a person or damages the real or personal property of a person with the intent to intimidate such person because of such person’s race, color, religion, national origin, sexual orientation, or disability.”
Bias as an Aggravating Factor
A number of states have legislation that allow for bias motivations in the commission of a crime to be considered aggravating circumstances, and thus allow for enhanced penalties, during the sentencing phase of trial.
In the state of Arizona, for example, a court may consider as an aggravating circumstance during the sentencing phase of trial any “evidence that the defendant committed the crime out of malice toward a victim because of the victim’s identity in a group … or because of the defendant’s perception of the victim’s identity in a group.”
Similarly in the state of Florida, section 775.085 of the 2007 Florida Statutes provides for enhanced penalties if the commission of a felony or misdemeanor evidences prejudice based on race, color, ancestry, ethnicity, religion, sexual orientation, national origin, mental or physical disability, or advanced age of the victim.
Although penalty enhancement provisions generally apply to a wide range of violent acts, they are in some states limited to specific crimes, such as assault and battery. Penalty enhancement provisions in cases of the most serious crimes of violence, such as murder, are not available in many states, on the grounds that the punishment for such crimes, even without penalty enhancements, is already severe.
 Federal legislation covers race, ethnicity, national origin and religion. State legislation extends to sexual orientation in 32 states, to disability in 32 states and to gender in 28 states.
 HRF, “Human Rights First Praises Final Passage of Hate Crimes Prevention Legislation,” Press Release, October 8, 2009, http://www.humanrightsfirst.org/2009/10/8/Human-Rights-First-Praises-Final-Passage-of-Hate-Crimes-Prevention-Legislation/.
 Miami Division of the Federal Bureau of Investigation, “Title 18, U.S.C., Section 247 – Church Arson Prevention Act of 1996,” http://miami.fbi.gov/statutes/title_18/section247.htm.
 ”Hate Crime Sentencing Enhancement Act,” http://www.adl.org/issue_government/hate_crime_sentencing_act.asp.
 Senate Judiciary Committee, page 4.
 The states that retain legislation protecting victims of transgender/gender identity crime are: California, Colorado, Connecticut, Hawaii, Maryland, Minnesota, Missouri, New Mexico, Pennsylvania, and Vermont.
 See chart, “Anti-Defamation League State Hate Crime Statutory Provisions,” http://www.adl.org/learn/hate_crimes_laws/map_frameset.html.
 ”Hate Crime Laws in Washington,” http://www.co.snohomish.wa.us/Documents/Departments/Prosecuting_Attorney/Statute.pdf
 New York State Division of Criminal Justice Services, “Laws of New York 2000, Chapter 107, Hate Crimes Act of 2000,” http://criminaljustice.state.ny.us/legalservices/ch107_hate_crimes_2000.htm
 New York State Division of Criminal Justice Services, “Laws of New York 2000, Chapter 107, Hate Crimes Act of 2000.”
 Arizona State Legislature, “Sentencing; definition,” http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/13/00702.htm&Title=13&DocType=ARS.
 The 2007 Florida Statutes, “Chapter 775: Definitions, General Penalties; Registration of Criminals,” http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0775/SEC085.HTM&Title=-%3e2006-%3eCh0775-%3eSection%20085#0775.085. Detailed state-by-state information on hate crime laws is available at: http://www.partnersagainsthate.org/.
 Anti-Defamation League, “Hate Crimes Data Collection and Prosecution: Frequently Asked Questions,” http://www.adl.org/combating_hate/