Bias-motivated, or "Hate" crimes are defined by a specific area of law and consist of criminal, typically violent acts perpetrated towards a particular social group. The social group may be defined by race, religion, sexual orientation, disability, class, ethnicity, nationality, age, sex, or gender identity.
While hate crime is not a distinct federal offense, the federal government investigates and prosecutes crimes of bias as civil rights violations (state and local authorities handle the majority of hate crime cases); those violations are considered “hate crimes” when it is determined that the offender was motivated by a bias against race, color, religion, national origin, and, in limited instances, disability. The FBI is the sole investigative force for criminal violations of federal civil rights statutes.
Many cases prosecuted under state laws such as murder, arson or ethnic intimidation are monitored by the Department of Justice to ensure that the federal interest is vindicated and that the law is applied equally among all Judicial Districts. The FBI forwards reports to U.S. Attorneys and the Civil Rights Division at the Department of Justice, which then decide whether a federal prosecution is warranted; for example, they may intervene if local authorities are unwilling or unable to prosecute a crime of bias. Hate crimes directed at the U.S. government or the American population may also be investigated as acts of domestic terrorism, and as the Civil Rights Program cannot investigate groups (only individuals) all incidents involving specific "hate groups" are also investigated as domestic terrorism.
Early Civil Rights Acts and the 14th Amendment:
Current Federal Hate Crime laws have their roots in legislation enacted to protect the civil rights of African-Americans in the wake of the American Civil War. One of the earliest of these, the Civil Rights Act of 1866 (14 Stat. 27) was first enacted by Congress in 1865 but vetoed by President Andrew Johnson, in April 1866. Congress again passed the bill and a two-thirds majority in each house overcame the veto.
The Act declared that "...people born in the United States and not subject to any foreign power are entitled to be citizens, without regard to race, color, or previous condition of slavery or involuntary servitude. It also provided that any citizen has the same right as a white citizen to make and enforce contracts, sue and be sued, give evidence in court, and inherit, purchase, lease, sell, hold, and convey real and personal property." Persons who denied these rights to former slaves were guilty of a misdemeanor and upon conviction faced a fine not exceeding $1,000, or imprisonment not exceeding one year, or both. Yet while the Civil Rights Act of 1866 may have been intended to prevent discrimination by conferring rights on all citizens, the constitutional power of Congress to implement that remained in question.
The Fourteenth Amendment (Amendment XIV) to the United States Constitution was adopted on July 9, 1868, partially to eliminate doubts about the constitutionality of the 1866 Civil Rights Act and to ensure that no subsequent Congress could repeal or alter its main provisions. Its Citizenship and Equal Protection Clauses parallel language in the Civil Rights Act, and two years later the 1866 Act was reenacted as Section 18 of the Enforcement Act of 1870. Unfortunately insurgent groups such as the Ku Klux Klan (KKK) undermined these laws, and they failed to secure the civil rights of African Americans. Federal penalties were not provided for, and remedies were left to the individuals involved; victims of discrimination had limited access to legal help and this left many without recourse.
To address these issues and to fight widespread racial terrorism which was erupting in the Deep South, the Civil Rights Act of 1871 (17 Stat. 13) was requested by President U.S. Grant who felt that he needed broadened authority before he could effectively intervene. The act's passage gave the president power to suppress state disorders and suspend the right of habeas corpus; several of its provisions still exist today as codified statutes, the most important being 42 U.S.C. § 1983 which states that;
"Every person who.. subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law..."
Despite this attempt, many southern states still adopted comprehensive “Jim Crow” segregation laws which were upheld by the Supreme Court: these laws effectively institutionalized forms of violence and hate against African-Americans. Most social scientists view modern hate crime policy as having evolved out of the civil rights movement beginning in the mid-1950s, when the struggle to address discrimination was pioneered by Dr. Martin Luther King, Jr. and others.
Although the initial focus of the civil rights movement was to promote legal, social and economic status of African- Americans, by the 1960s it had expanded to include other racial and ethnic minorities and a focus turned towards the protection of their civil rights and the implementation of efforts to reduce violence directed towards them.
The Civil Rights Act of 1964 (Pub.L. 88-352,78 Stat. 241) went further than any previous legal attempt to end discrimination, and finally permitted federal prosecution of anyone who "willingly injures, intimidates or interferes with another person, or attempts to do so, by force because of the other person's race, color, religion or national origin" (an addition also prohibits discrimination based on sex). However, this language only protected specific activities such as attending school, patronizing a public place/facility, applying for employment, acting as a juror in a state court or voting.
Modern Interpretations and Legislation:
The actual term "hate crime" did not enter the nation's vocabulary until the 1980s, when emerging racist groups such as the Skinheads launched a wave of bias-related crime. Beginning in the 1990's Congress recognized a need to strengthen existing legislation beyond the basic protections of civil rights, and drafted several acts intended to both track the prevalence of bias-motivated violence and to address its prosecution.
The Hate Crime Statistics Act (28 U.S.C. § 534) was passed in 1990 to require the Attorney General to collect data on crimes committed because of the victim's race, religion, disability, sexual orientation, or ethnicity. This was the first federal statute to include gay, lesbian and bisexual people; it was followed in 1994 by the Violent Crime Control and Law Enforcement Act (28 U.S.C. § 994 note Sec. 280003), which required the United States Sentencing Commission to increase penalties for federal crimes committed on the basis of the actual or perceived race, color, religion, national origin, ethnicity, or gender of any person.
In 1998 two specific incidents of bias motivated crime received national attention, reinvigorating public outcry and legislative debate:
James Byrd, Jr., an African-American, was abducted by three white men (two of which were confirmed members of white supremacist groups) on June 7, 1998 and brutally dragged to death behind a pick-up truck outside the rural community of Jasper, TX. State law enforcement officials determined that the murder was racially motivated. Three months later on October 6, Matthew Wayne Shepard, a 21 year old student at the University of Wyoming was tortured and murdered in a rural area near Laramie, WY. Shepard was reportedly homosexual, and during the trial evidence was presented that suggested the violence against Shepard was instigated due to his sexual orientation.
Matthew Shepard's killers were given life sentences and two of James Byrd's murderers were sentenced to death while the third was sentenced to life in prison. But these convictions were obtained without the assistance of hate crimes laws; at the time there was no suitable applications on the federal level and neither state had applicable legislation.
Beginning in 2001, an expansion to the existing federal hate crime laws was proposed to include crimes motivated by a victim's actual or perceived gender, sexual orientation, gender identity, or disability. Defeated five times, the bill was finally passed by the House Judiciary Committee in April 2009 and by the Senate in July: it was signed into law as a rider to the National Defense Authorization Act for 2010 (H.R. 2647) on October 28, 2009 by President Barack Obama. Known as The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, it removes the prerequisite that the victim be engaging in a federally protected activity such as voting or going to school; it gives federal authorities greater ability to engage in hate crimes investigations that local authorities choose not to pursue, and it requires the FBI to track statistics on hate crimes based on gender and gender identity as well as for the other subjects already being tracked.
In May 2011 the Department of Justice secured the conviction of defendants in Arkansas who chased a group of Latino men and repeatedly rammed their vehicle, causing it to go off the road, crash into a tree and burst into flames. This case was the first prosecution to go to trial under the Shepard-Byrd Act and in August 2012 it became the first case in which a Federal appeals court upheld the constitutionality of the statute.
The validity of federal hate crime laws are still being debated on several fronts. Many social and religious conservatives have voiced concerns that the laws could interfere with first amendment rights to freedom of speech: others have espoused the notion that such offenses are now adequately covered by individual State laws and therefore a federal mandate is unnecessary. Still others have renewed arguments over the questionable ability of enforcement under federal guidelines and the possibility of double jeopardy.
References:
Civil Rights Acts: 1866 (14 Stat. 27) - 1875 (18 Stat. 335)
Hate Crime Statistics Act (28 U.S.C. § 534)
Amendment XIV to the United States Constitution
Violent Crime Control and Law Enforcement Act (28 U.S.C. § 994 note Sec. 280003)
Hate Crime Legislation: William J. Krouse, Oct. 16 2009 (.pdf)
National Criminal Justice Reference Service: "In the Spotlight": Hate Crime
Federal Bureau of Investigation: Hate Crimes Overview
