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Brian Levin, J.D.

Brian Levin, J.D.

Posted: October 22, 2009 08:57 PM

US Senate Passes Byrd-Shepard Hate Crimes Act, Awaits Presidential Signature

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The United States Senate passed landmark legislation today that expands the coverage and protection of federal hate crime laws to now include sexual orientation, gender, gender identity and disability. While a 1994 federal law technically covered gays, the scope of the law was so narrow that it was hardly ever used. Today’s legislation is expected to be signed by President Obama soon. It marks the first practical expansion of the most broadly applicable criminal civil rights law since 1968. The House passed its conference version earlier this month. An earlier version is here. 

The law entitled the Matthew Shepard-James Byrd Hate Crimes Prevention Act (18 USC 249) passed two critical votes on Thursday. The law is named after two murder victims from 1998 who were targetted for attack because of bigotry. One vote to end a possible filibuster passed by a 64-35 vote, and the final vote on the provision and bill passed later by a vote of 68-29. The bill was included in a large 2010 Department of Defense Authorization Act. At least four Republicans voted with nearly every Democrat to end a possible filibuster: Susan Collins and Olympia Snowe of Maine, as well as George Voinovich of Ohio, and Lisa Murkowski of Alaska.

The Anti-Defamation League’s Civil Rights Policy Planning Center Director Michael Lieberman reached in Washington, DC late Thursday said:

"ADL has been privileged to lead a broad coalition of civil rights, religious, educational, professional, law enforcement, and civic organizations working in support of this legislation for more than a decade.  The incredible dedication and persistence of our Hill champions – led by Senator Kennedy – and coalition activists across the country brought us to this day.”

Our Center has been part of that effort all along (including a prior incarnation at another institution). While policy advocates have complained of loopholes for decades the initial version of the act was introduced by Senator Edward Kennedy of Massachusetts in 1997, and had in subsequent years passed both the House and the Senate, though not in the same year.

Our Center issued the following statement today, “This is such an overdue , but wonderful achievement. We were so fortunate to have the leadership and assistance of Senator Kennedy and his staff over the years, as well as very, very  special people in DC, who enabled us to get our research to Congress without worrying about who got the credit.”

The Human Rights Campaign's Joe Solmonese said on HRC's website: "We look forward to President Obama signing it into law; our nation’s first major piece of c ivil rights legislation for lesbian, gay, bisexual and transgender people."

Not everyone was pleased, the Family Research Council's Tony Perkins told the Associated Press that act was a "part of a radical social agenda that could ultimately silence Christians and use the force of government to marginalize anyone whose faith is at odds with homosexuality." 

Earlier this year Imam Abdel Malik Ali, a frequent speaker at California colleges and a keynoter at a Council on American Islamic Relations co-sponsored function as late as 2007 called the hate crime bill a plot by Jews to criminalize criticism of Jews or the Holocaust and urged listeners to break it.

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President George W. Bush, who also opposed such a law while governor of Texas, pledged to veto federal legislation if it came up for his signature-although that never happened during his two terms in office. In Congressional testimony in the 1980s Assistant Attorney General Drew Days explained how existing law allowed the would-be assassin of then Urban League President Vernon Jordan to receive an acquittal under federal law because the jury could not conclusively prove that the attempt on his life was intended to deprive him of his right to a public accommodation-the Fort Wayne, Ind. Marriot Hotel where he was shot.

The Supreme Court has consistently upheld these types of state and federal criminal civil rights laws. See Wisconsin v. Mitchell, 508 U.S. (1993) (Court 9-0 upholds state hate crime penalty enhancement law.); United States v. Price, 383 U.S. 787 (1966) (Court affirms broad application of criminal civil rights conspiracy law); Screws v. United States, 325 U.S. 91 (1945) (Court affirms conviction of policeman under 18 U.S.C. 242 for killing an African-American). Furthermore, the federal government as a separate sovereign has the legal authority to enforce statutes that may punish the same conduct as some state laws. See United States v. Lanza, 260 U.S. 377 (1922); Abbate v. United States, 359 U.S. 187 (1959).

The applicability of the older federal laws is limited by two basic elements. The first required element relates to the type of victim group that is protected such as race or religion. The next element relates to the type of activity undertaken by the victim that is protected or the type of criminal conduct of the offender that is proscribed. For instance 18 U.S.C. 245 only addresses the violation of a specifically enumerated right such as voting or employment. Some state laws only enhance certain types of criminal conduct such as assaults and vandalisms but not other offenses motivated by hate.

While nearly all state hate crime laws punish discriminatory crimes based on race, religion, and ethnicity only about half the states protect on the basis of gender or disability. About thirty states protect on the basis of sexual orientation, and far fewer on the basis of other characteristics. Moreover, there is no broadly applicable federal hate crime law, and existing federal criminal civil rights statutes, with one narrow exception (The Hate Crime Sentencing Enhancement Act of 1994, Pub. Law 103-322, § 280003) completely exclude protection on the basis of gender, gender identity, sexual orientation and disability.

However, just how much enforcement is undertaken at the state level has been the subject of intense recent debate. In Oklahoma hate crime charges were not filed in the case of a gay man brutally beaten around the head because that state fails to cover on the basis of sexual orientation. A Northeastern University study by Center Board member Jack McDeviit found that many hate crime cases are not adequately reported.   In July the Center presented Attorney General Eric Holder government data breakdowns that included some of the following information presented below.

 The latest 2007 FBI hate crime data of 7,624 reported incidents mean that there is approximately one reported hate crime almost every hour. However, this number drastically undercounts the actual number of cases in the United States. A 2005 Bureau of Justice Statistics victimization survey indicates that the actual annual number of victimizations is far higher at about 191,000.  Moreover, the reported state data submitted to the FBI itself indicates that many states simply are not reporting hate crimes accurately.

This is key as identification of incidents themselves is the crucial first step to resolution and prosecution of cases. Hawaii, for instance did not participate at all in the federal reporting program and a recent report by Southern Poverty Law Center found that the state had a problem with inter-racial relations.  Moreover, our Center pointed out that  three of the five states with the highest proportion of African-Americans, who account for 35% of all reported hate crimes nationally, barely reported hate crime at all.

  1. Mississippi, 38% African-American, 0 hate crimes
  2. Louisiana, 32% African-American, 31 hate crimes
  3. Georgia, 31% African-America, 13 hate crimes

Contrast these totals with that of South Carolina, a state in the same region with similar demographics and a total population almost the same as Louisiana and half that of Georgia’s.  South Carolina, has over one million African American residents comprising 29% of the state’s total population. The state reported 127 hate crime in 2007. In 2007 Boston, with a dedicated police hate crime unit and a population of 500,000, counted more hate crime cases than Georgia, Alabama, Arkansas, Louisiana, and Mississippi combined.

Also disturbing is the diminishing participation by other states with large and diverse populations that previously meaningfully participated in the survey. Illinois reported 348 hate crimes in 1996 through 113 participating law enforcement agencies. By 2007  the state reported only 167 incidents from only 60 agencies. Other states “participate” but merely collect forms showing “zero” hate crimes from various counties and municipalities.

Many of the Jurisdictions surveyed by our Center including those in New York, Texas, California, Virginia and elsewhere reported declines in hate crime in 2008, and the ADL reported a decline in anti-Semitic hate crime that year. The FBI is expected to release national data on November 23, but many states are not expected to meaningfully participate.

In a statement delivered to the Senate in June the Center for the Study of Hate and Extremism joined a broad coalition of law enforcement, civil rights, and religious groups supporting the law. The Center’s statement said in part:

Hate crimes are directed against persons about 70% of the time. Non-hate crimes, by contrast, are directed against persons only 11 percent of the time. Center Advisory Board members Northeastern University professors Jack McDevitt and Jack Levin found that hate motivated assaults are twice as likely to cause injury and four times as likely to result in hospitalization as assaults in general. In addition, law enforcement data and other respected academic studies, establish that hate crimes are more likely to involve groups of assailants, escalating serial attacks (often against the same target), a heightened risk of civil disorder and retaliatory violence, greater psychological trauma to victims and a greater expenditure of resources to solve cases. 

While some expressed concerns that  federal government increasingly and unnecessarily intervenes in hate crime cases statistics show that prosecutions declined under the Bush Justice Department. From 1998 to 2005 the number of civil rights criminal cases, which includes hate crimes as a subset,  opened by the FBI actually dropped from over 2000 to around 500. The number of federal racial violence/hate crime cases declined from over 200 in 1998 to around 75 by 2005.

See also hatefighter.blogspot.com