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

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

Comments

[BeltwayInsider]

I see a lot of misinformation and lack of understanding about hate crimes in the comments for this posting, so I’d like to try and shed a little light on the subject.

Hate crimes are treated differently from personal crimes because, unlike personal crimes, hate crimes are committed with the PRIMARY intention of terrorizing an ENTIRE COMMUNITY - typically a minority community.

Think of a hate crime as a form of domestic terrorism - because that's exactly what it is. (1)

Also, please keep in mind that hate crimes are prosecuted at the FEDERAL level. As such, they are tried before a FEDERAL court, where local biases, such as where the local people simply don't give a rat's ass if a black person is lynched or gay person is beaten to a pulp, are much less likely to influence the verdict.

Here locally, in a recent controversial case, a six month plea bargained sentence was given for an altercation that resulted in a death. (2) Had this incident been prosecuted as a federal hate crime, it probably would have been prosecuted more aggressively, and not have been plea bargained so “cheaply”.

(1) http://en.wikipedia.org/wiki/Hate_crimes

(2) http://www.washingtonpost.com/wp-dyn/content/article/2009/10/14/AR2009101402489.html

[Liberal Angel]

Thank you for your informed comment.

[DinkSinger]

Hate crimes are prosecuted at both the state and federal levels. According to the ADL, 45 states and the District of Columbia have their own hate crime laws. Thirty-one states and DC include sexual orientation as a protected class but only ten and DC include gender-identity.

The Federal law, as amended by the Shepherd Act, will allow Federal prosecution when: "the State does not have jurisdiction; the State has requested that the Federal Government assume jurisdiction; the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence; or a prosecution by the United States is in the public interest and necessary to secure substantial justice."

As to the influence of local people on the verdict, the Sixth Amendment guarantees Federal defendants the right to "an impartial jury of the state and district wherein the crime shall have been committed," so local people ultimately return the verdict.

[DinkSinger]

The case mentioned was a DC case. It was not prosecuted under the DC bias crime law because there was no evidence at all that bias was a factor in what was most likely a robbery. Unfortunately there was insufficient evidence to prove a robbery. If it had been a bias crime, the defendant could have been sentenced to 27 months instead of 18 months. It could not have been prosecuted under the Shepherd Hate Crime Act because no weapon was used. In addition the district is of course not a state, so this case was prosecuted by a U.S. attorney in the Superior Court of the District of Columbia, which is a Federal court. That would preclude the case from also being prosecuted under the Federal hate crime statute due to the Constitutional prohibition of double jeopardy.

By the way the local DC bias crime law protects more classes than any other hate crime law in the United States. It says:

" 'Bias-related crime' means a designated act that demonstrates an accused's prejudice based on the actual or perceived race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, homelessness, family responsibility, physical disability, matriculation, or political affiliation of a victim of the subject designated act."

[RightWingMarine]

given the incident you cited could you point to the moment when the hate crime began and when it ended? What determines that this was a hate crime?

Now the only info I have on this incident is the article you cited but it seems to me that Hannah shouldn't have received any punishment whatsoever. As the article states Hannah was sexually assaulted by Hunter and Hannah took steps to protect himself. As the article states Hannah was a "little guy" and Hunter was a 6'3" 200lb Army Sgt. It is completely resonable that Hannah would attempt to use force to stop being fondled by Hunter. Had Hunter survived he should have been prosecuted as a sexual offender.

[DinkSinger]

There is no evidence of a hate crime.

The only evidence for the alleged sexual assault were Hannah's statements. It is extremely likely that Hannah made this up in an effort to exploit anti-gay bias in an attempt to avoid criminal charges. The police believe that Hunter was the victim of a mugging since after the assault his wallet was empty, however they found no evidence to prove Hannah had emptied it. Hannah was most likely guilty of felony murder, but since the underlying felony could not be proven and since Hunter's death resulted from striking his head when he fell a second time it was the judgement of the U.S. Attorney that only simple assault could be proven.

[DinkSinger]

"Today’s legislation is expected to be signed by President Obama soon."

I'm a strong supporter of the Byrd - Shepard Hate Crimes Act, but unfortunately, today's legislation is the Defense Authorization bill which President Obama should veto because it authorizes $560 million for an alternate engine for the F-35 Joint Strike Fighter. This is the single most outrageous piece of pork passed this year. Adding the Hate Crimes Act to this bill was a strategy by the supporters of the GE/Rolls Royce F136 engine to force the president into approving their pet project. There is absolutely no reason to build two different engines for the same plane. Hopefully the American people, including the GLBT community, will understand when the bill its vetoed, Congress removes the F136 and passes a bill the President can sign.

Disclosure: I live in Hartford, Connecticut, near where the F135 engine is being built by Pratt and Whitney, but I am confident that if the GE/Rolls Royce had won the competition to build engines for the F-35, I would still be opposed to this kind of wasteful spending.

[alex61]

I am very glad that the number of people who are covered by hate crimes eigislation is growing. Hate crimes are particularly odious. But let's complete the job and reduce the "list" to one entry-everyone.

[roald]

Everyone is covered. If a crime is committed against anyone because of their race, sexual orientation, etc., the perpetrator could face hate crime charges.

[RightWingMarine]

Since the writer points to a few states that report low incidence of hate crimes as evidence that these crimes are being at best under reported and at worst covered up; does this mean that there will be hate crime reporting quota?
How many hate crimes were reported in Detroit or Beverly Hills? Should we send federal law enforcement there to uncover the hate crimes the residents of those respective cities don't want revealed?

[roald]

There is a huge difference between reporting and quotas. If a hate crime takes place and local law enforcement ignores it, federal law enforcement should do the job.

[alex61]

Every single person out there should be covered by hate crimes legislation. You can't divide people into two lists, those who are deemed potential victims of hate crimes and those who are not. That's absurd. Anyone, in any group, can be targeted because of "membership" in that group.

The idea should be this: If you are assaulted at least in part because of your group membership, you are a victim of a hate crime. The perpetrator is liable for additional penalties. There is no need to give additional protection to certain groups.

Yes, men, white people, and straight people can be targeted. They are not immune and should not be left of the "list." Equal protection is the law of the land.

[Liberal Angel]

Race, gender and orientation ARE covered. If a straight white man is assaulted for being straight, white, or male, he is protected under this law.

[alex61]

Thank you. If that's the case, fine. Then why do we need to keep adding groups to the list? Can't we just simply that anyone attacked for reasons of group member ship is protected ?

[DI-1957]

If the straight white man (me) is "Protected" what is the point?
It appears to me the real problem is lack of prosecution or investigation by the police if they are not worried about the victim. That is not a problem of law, but of enforcement.
Further criminalization of the public?
Further federalization of local police?
Further erosion of Due Process and Equal Protection?
I guess what I'm saying is this entire thing is unconstitutional.

[The Albany Kid]

Hate crime statutes usually cover all persons by *protected class* (e.g., sexual orientation or race) rather than by specific identifiers (e.g., gay or Black).

Bottom line? Even straight, White, Christian males have "protected classes".

[alex61]

I get the impression that you are saying some straight, white, Christian males are in a protected class of some sort, but why not just ALL straight, white, Christian males, just like anybody else? If anyone can be a victim of a hate crime, than all should be covered with a simple statement of law, not just certain groups.

[DinkSinger]

The protected classes recognized by the bill are race, color, religion, national origin, gender, sexual orientation, gender identity, and disability.

[Factonfact]

And will there be celebrations in the streets when the President signs the bill?

Of course not.

Too many tolks take to the streets only when they oppose something.

It's more fun, I suppose. And that seems to be what governs so much of the nation today: whether or not something is fun.

Pity.

[Liberal Angel]

Why should people take to the streets to celebrate? It's nothing for him to sign the bill. We should take to streets when he does something to strengthen our rights. When he's repealed DADT, DOMA, and signed ENDA, then we'll take to the streets to celebrate.

[kells1001]

Congratulations to those who feel this law was a necessity however, most likely this type of legislation will provide protection for some and a form of persecution for others primarily in the workplace. In particular the law cannot provide any real protection from people intelligent enough to act with devious intent and unfortunately may provide a framework for many people to make claims that are the result of ulterior motives.

[alex61]

True. There are some people who see every problem they encounter in life as a function of some sort of bigotry. They are eternal victims and want society to "do something" to alleviate their perpetual victimization. There is no perfect solution to any thing. In general, anti-hate crime laws will probably do more good than harm. Those who attempt to game the system need to be found out and properly penalized.

[Liberal Angel]

Are you suggesting gay people will sue their employers or co-workers for a hate crime, if they're harassed at work? Do you know what a hate crime is?

[DinkSinger]

This bill has absolutely nothing to do with day-to-day events in the workplace. It deals only with felony crimes of violence. The Federal crimes have to involve the use of fire, firearms, dangerous weapons, explosives or incendiary devices to willful inflict (or attempt to inflict) bodily harm.

[smacc1]

Hate Crime legislation has seemed to me to be more a way for the politically correct to affect public discourse. Anyone who opposes such legislation might find themselves defending against accusations of being insensitive to gays or blacks or various gender identities, religions etc. And if they do have an opinion on gay marriage or illegal immigration, for example, Hate Crime legislation that criminalizes a person's thoughts (in addition to the heinous crime they commit) is one more weapon in the PC arsenal that targets any opinion critical of groups "protected" by the law. In a sense, it's an end run attack on the 1st Amendment Free Speech clause. It doesn't effectively outlaw thoughts (the crime’s already been committed and the hate thoughts have been thought), but it attempts to make it more difficult (and risky) to express critical opinion.
The danger is that, over time, limiting ones opinions becomes accepted while more stringent laws around free expression worm their way into practice with little or no comment. Europe is experiencing this now, where critical comments directed at a religion can get you put on trial.

[Liberal Angel]

The difference between murder and manslaughter is intent aka thought. We already base law on thought. Your argument is just to vent that you want to make fun of people different from you.

[alex61]

Careful, LiberalAngel. Expressing a criticsm, which could be constructive criticism, does not necessarily mean someone is being made fun of. No one is immune from criticism since no one is perfect. Often criticisms are made of things people say or their policies, etc. Saying that people who criticize just want to make fun of people is an obvious attempt to silence people pre-emptively. Dangerous!

[hamilton]

Respectfully, you just made smacc1's point with your last sentence - accusing him of mocking others because he does not agree with hate crimes. It's possible to legitimately dislike the idea of hate crime legislation and not be racist, amazingly enough.

The difference between manslaughter and murder is intent to kill, not what you thought emotionally about the victim. The danger of hate crime legislation (in my opinion) is twofold: first, it establishes that some the same crime can somehow be "worse" depending upon the victim - based on the Government's impression of your inner feelings. That's a pretty slipper slope to allow the government to tread upon.

Second, it allows the Federal Government the authority to supersede state government investigations, again for a subset of the citizenry. It's hard to see how the Constitution clearly empowers the Federal Government to do this.

Laws that apply to subsets of people are all well and good when you like the laws or like the people. It's when the protected class isn't you that things get dicey.

I'm for equal protection of the law to everyone, and for vigorous prosecution of assault, murder, and the like regardles of the assailant's beliefs.

Just my opinion anyway, and no disrespect.

[Fein]

This is a major blow for the Right Wing. No longer can their croney-Police departments turn a blind eye to hate crime.

I live in a small, redneck town that persecutes all it's minorities and gays till they leave. Now, the stakes have risen considerably for bigots. I can't wait for this measure to have an effect.

[WindSongAuha]

Sorry

The quote with the Native American Was to be " Great Men Like Great Nations are only as great as the words they Keep"

End State- ment

And the rest of what I was going to write was about God Be over that place V-Tec, The 57 some rounds that was gotten off..... if The right to arms and been upheld Some one could have Put Them Down. and that many rounds would have never been used. but because of the Nationalistic Police State Views of the anti-Gun Nuts like Obama and he that help as the Leader of Self Defense or Common Defense help make sure a man was sent to jail for the defense of his own home. National Defense Starts with Self defense when the frist line of defense Fail's Words "Stop"

Gods Blessings Be with those the serve "Common Defense"

[alex61]

Huh?

[Liberal Angel]

I second that, and give it a "what the hell are you talking about?"

[dshwa]

Long overdue.

[WindSongAuha]

Oh yes I could not for get, Crimes and the views about Arms and Laws, In my view it comes down to this as with laws past, They are all worthless, an only as good as those that follow them, As for and like this last act of Free will The one that did not like what ever it was with in my home State of Va, and the V-tech Shootings and all like said Crimes. Nothing the laws did Stooped the actions of free will nore will it ever, So I point out the Wisdom of a Wise Native American " Great men Like Great Words are only as great as the words they Keep", " Free will... does and can over ride the laws of Tryants,"

National defense Starts with Self Defense, and the frist line of defense is to be Freedom of speech, History has Shown Us Time and again Why the nations father understood "Common Defense" and the views of "Arms" was so up held, "Words fail" and tryants always seek to gain control over the Weak.

[alex61]

You are right. The laws are only as effective as people make them. No amount of police , courts, or prisons will keep a society safe if enough people ignore the rights of others. The best form of control has always been self control. We can't just talk the talk, we have to walk the walk. It's all about responsibility.

For our system to work well, it's not necessary for everyone to like everyone else. That's a lovely thought (fantasy, really) buts it's not required. All that is required is for everyone to respect everyone else's right. Simple.

[PrairieView]

I wonder if Obama will sign it.

[Gretel1or2]

I'm not sure what your point is. Why are you doubting that he will sign it?

[leparsdon]

"Hate Crime" legislation never had any business being instituted in the first place. A crime is a crime, who here can say that most crimes aren't committed out of hate? Harsher penalties for crimes that are committed against a person due to skin color, sex , ethinicity, sexual orientation, etc, seems to be an ironic bias that somehow loses its meaning when you consider things like this have never been a deterrent. Pointless is my opinion

[veendam]

"A crime is a crime, who here can say that most crimes aren't committed out of hate?"

I can. Look at Mississippi, they reported 0 hate crimes. So none of their States crime was committeed out of hate.

I don't think it's a deterrence either. But that is not the laws intent. It's intended to reflect our countries moral values. That we value all persons and will step up as a country to protect those that are targeted and victimized for no other reason then 'sport' really. The ugly reality is, there are those among us that target persons because they are gay, and local law enforcement turns a blinds eye and lets the perpetrator off easy.

Look at the sad and insecure comments from 'religious leaders' desperate to hold on to their hate. So so sad.

[alex61]

I can see both sides on this issue. If a person is attacked, whatever the motivation, a crime has been committed and the criminal, once found guilty, should be punished appropriately. In theory, a "hate crime" factor should not be needed. On the other hand, your statement that having a hate crime provision is a statement about our culture and what it will not tolerate does resonate with many people, including me.

Just apply the anti-hate crime laws to everyone. In my old neighborhood, a white school principal was brutally beaten by Hispanic attackers who said they didn't want a gringo principal running "their" school, which was nearly all Hispanic. Anyone can be victimed for their group status and everyone should be covered.

By the way-police should not let anyone off the hook if there is evidence to prosecute.

[aftershock]

"A crime is a crime, who here can say that most crimes aren't committed out of hate?"

Logical fallacy

[lastpost]

“targetted for attack because of bigotry”

Do the prohibitions cover bigotry against bigots?

[Liberal Angel]

That's called "self defense". Victims don't seek out bigots to victimize them.

[JohnnyKay]

That would be revenge, and it does occur.

On another note, I enjoy your comments.

Well thought out, and expressed even better.