What is the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (HCPA)?

The HCPA gives the Justice Department the power to investigate and prosecute bias-motivated violence by providing the Justice Department with jurisdiction over crimes of violence where a perpetrator has selected a victim because of the victim’s actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity or disability. In addition, it provides the Justice Department with the ability to aid state and local jurisdictions with investigations and prosecutions of bias-motivated crimes of violence.

The HCPA also authorizes the Justice Department to provide grants to state and local communities to cover the extraordinary expenses associated with the investigation and prosecution of hate crimes. Moreover, it authorizes the provision of grants for local programs to combat hate crimes committed by juveniles, including programs that train local law enforcement officers in identifying, investigating, prosecuting and preventing hate crimes.

Furthermore, the HCPA requires the Federal Bureau of Investigation to track statistics on hate crimes based on gender and gender identity (statistics for the other groups were already tracked). The HCPA also requires that the Attorney General’s annual summary of the data acquired under the Hate Crimes Statistics Act include a report on hate crimes committed by, and hate crimes directed against, juveniles.

What is the history of the HCPA?

Hate crimes legislation was initially introduced in the House and Senate in 1997. During the subsequent 12 years, Congress passed various versions of the HCPA, but was ultimately unsuccessful in advancing the bill for the President’s signature.

This changed during the 111th Congress, when versions of the HCPA were introduced by Representatives John Conyers (D-MI) and Mark Kirk (R-IL) in the House and Senators Edward Kennedy (D-MA ), Patrick Leahy (D-VT), Arlen Specter (D-PA), Susan Collins (R-ME) and Olympia Snowe (R-ME) in the Senate. On April 29, 2009, the House of Representatives passed hate crimes legislation (H.R. 1913) by a vote of 249-175. On July 16, 2009, the Senate voted 63-28 to proceed with hate crimes legislation (S. 909) as an amendment (S. Amdt. 1511) to the Department of Defense (DoD) authorization bill (S. 1390). The DoD authorization bill then passed the Senate with hate crimes legislation attached as an amendment on July 23, 2009.

As part of the final negotiations between the House and Senate, the memory of two victims of hate crimes were honored by naming the hate crimes provision of the DoD Authorization Conference Report the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act. Matthew Shepard was a gay college student who was tortured and murdered in Laramie, Wyoming, and James Byrd, Jr., was an African-American man who was dragged to death in Jasper, Texas.

The DoD Authorization Conference Report, which contained the HCPA, passed the House on October 8, 2009 and the Senate on October 22, 2009. The legislation was signed into law by President Barack Obama on October 28, 2009 (Public Law No. 111-84).

Isn’t every crime a hate crime?

Every act of violence is tragic and harmful in its consequences, but not all crime is based on hate. A hate crime occurs when the perpetrator of the crime intentionally selects the victim because of who the victim is. A hate crime affects not only the victim and his or her family but an entire community or category of people and their families. A study funded by the Bureau of Justice Statistics released in September 2000 shows that 85 percent of law enforcement officials surveyed recognize bias-motivated violence as more serious than similar crimes not motivated by bias.

While a random act of violence is a tragic event that devastates the lives of a victim and his or her family, the intentional selection and beating or murder of an individual because of who they are terrorizes an entire community, and sometimes the nation. For example, it is easy to recognize the difference in the arson of an office building and the intentional torching of a church or synagogue. The church or synagogue burning has a profound impact on the congregation, the faith community, the greater community, and the nation. The same is true for a bias-motivated crime.

Doesn’t the HCPA threaten or chill free speech? Does it violate the First Amendment?

The HCPA punishes violent acts, not beliefs or thoughts – even violent thoughts. It does not punish, nor prohibit in any way, name-calling, verbal abuse or expressions of hatred toward any group, even if such statements amount to hate speech. The HCPA does not punish thought or speech or criticism of another person. It only punishes violent actions based on prejudice.

Nothing in this act prohibits the lawful expression of one’s deeply held beliefs, including religious beliefs. People will always be free to say things like: “Homosexuality is sinful;” “Homosexuality is an abomination;” or “Homosexuals will not inherit the kingdom of heaven.”

The HCPA only covers violent acts. It contains language that explicitly ensures that speech and association rights will not be burdened. Specifically, the HCPA states:

• Nothing in this division shall be construed to allow a court, in any criminal trial for an offense described under this division or an amendment made by this division, in the absence of a stipulation by the parties, to admit evidence of speech, beliefs, association, group membership, or expressive conduct unless that evidence is relevant and admissible under the Federal Rules of Evidence. Nothing in this division is intended to affect the existing rules of evidence.
• This division applies to violent acts motivated by actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of a victim.
• Nothing in this division, or an amendment made by this division, shall be construed or applied in a manner that infringes any rights under the First Amendment to the Constitution of the United States.

Furthermore, evidentiary use of speech to prove motive or intent does not offend the First Amendment. Doubts about the constitutionality of bias-motivated criminal laws were squarely addressed by the Supreme Court in the early 1990’s in two cases, R.A.V. v. City of St. Paul and Wisconsin v. Mitchell. These cases clearly demonstrate that a criminal statute may consider bias motivation when that motivation is directly connected to a defendant’s criminal conduct. In Wisconsin v. Mitchell, the Supreme Court made clear that “the First Amendment . . . does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent.”

Did Congress exceed its power to legislate when it enacted the HCPA?

The HCPA was carefully drafted to ensure that it complies with Supreme Court precedent established by United States v. Morrison (2000), which invalidated a civil rights remedy because the Court determine that Congress had exceeded its legislative authority when it enacted the remedy. Based on conversations with Justice Department officials, congressional allies and constitutional scholars, we are confident that the HCPA can survive post-Morrison constitutional scrutiny.

The original 1968 hate crimes statute, which criminalized hate crimes based on race, color, religion or national origin, has been upheld as a constitutional exercise of congressional authority under the Commerce Clause in United States v. Lane (10th Cir. 1989) and under the Thirteenth and Fourteenth Amendments in United States v. Bledsoe (8th Cir. 1994). The more recent Morrison decision, however, has led some to question whether the HCPA, which criminalizes hate crimes involving sexual orientation, gender, gender identity and disability, can survive constitutional scrutiny.

The Commerce Clause of the Constitution provides Congress with the ability to regulate interstate and foreign commerce. In Morrison, the Court found that the statute in question regulated purely intrastate activity, and was therefore beyond the scope of Congressional authority to legislate. The HCPA, however, has been drafted to comply with Congress’s ability to legislate based on the Commerce Clause. The HCPA requires that the government allege and prove beyond a reasonable doubt that there is an explicit and discrete connection between a prohibited act (a hate crime based on religion, national origin, gender, sexual orientation, gender identity or disability) and interstate or foreign commerce. Thus, the HCPA is clearly within Congress’s power to legislate.

Doesn’t the HCPA give certain people special protection? Isn’t this divisive and unfair?

Violent, bias-motivated crimes divide us and devalue lives, not the laws that address the problem. Hate crimes statutes don’t discriminate. All victims of bias crime are protected by these statutes, i.e. those of all races, all religions, all sexual orientations, etc.

Perpetrators of violent crimes who intentionally select victims because of who they are, single out and separate some Americans from others. They are terrorists who single out victims and commit violent acts as a means of sending a message to society and to others who belong to the same community as that of the victim.

The federal government – through decades of civil rights enforcements and criminal law prosecutions – has a history of addressing crimes that single out individuals because of the community they belong to. The HCPA adds sexual orientation, gender, gender identity and disability to existing federal law regarding the authority of the federal government to investigate and prosecute violent hate crimes. This authority to prosecute crimes committed because of the victim’s race, color, religion and national origin has existed since 1968. The HCPA thus brings more uniformity and fairness to existing law.

Is the HCPA a penalty-enhancement statute?

The HCPA is not a penalty-enhancement statute. Congress addressed the sentence enhancement issue by passing the Hate Crimes Sentencing Enhancement Act as part of the Violent Crime Control and Law Enforcement Act of 1994. That law a allows judge to impose harsher penalties for hate crimes, including hate crimes based on gender, disability and sexual orientation, that occur in national parks and on other federal property.

Is there an epidemic of bias-motivated violence?

Every individual’s life is valuable and sacred, and even one life lost is too many. There is ample evidence that violent, bias-motivated crimes are a widespread and serious problem in our nation. It is not the frequency or number of these crimes alone that distinguish these acts of violence from other types of crime; it is the impact that these crimes have on the victims, their families, their communities and, in some instances, the nation that distinguishes these acts of violence from other types of crime. Evidence indicates that hate crimes are underreported; however, statistics show that from 1991 – 2008 over 100,000 hate crime offenses have been voluntarily reported to the Federal Bureau of Investigation, with 9,168 reported in 2008, the Federal Bureau of Investigation’s most recent reporting period.

Violent crimes based on race-related bias were by far the most common type of reported hate crime, representing 51.4 percent of all offenses for 2008. Violent crimes based on religion and violent crimes based on ethnicity or national origin represented 17.5 percent and 12.5 percent of reported hate crimes, respectively. Violent crimes based on sexual orientation constituted 17.7 percent of all hate crimes in 2008, with 1,617 offenses reported for the year. In 2008, the FBI reports that there was an 11 percent increase in victims of sexual-orientation motivated bias crimes. The National Coalition of Anti-Violence Programs, a non-profit organization that tracks bias incidents against lesbian, gay, bisexual, transgender and queer people, reported 1,677 incidents for 2008 from only four states and 10 cities, compared to the 1,617 reported to the Federal Bureau of Investigation in 2008 by 13,690 local and state agencies.

Additionally, the Hate Crimes Statistics Act makes the reporting of bias-motivated crimes by state and local jurisdictions voluntary, resulting in no participation by many jurisdictions each year. In Georgia, for instance, only six agencies participated in reporting in 2008. Underreporting is also common. Five states reported 10 or fewer incidents in 2008, and the vast majority of the participating agencies (84.4 percent) reported zero hate crimes occurred in their jurisdictions. Some large cities had egregiously deficient reporting. Jacksonville, Florida, for example, reported only three incidents in 2008.

Sadly, statistics only give a glimpse of the problem. It is widely recognized that violent crimes on the basis of sexual orientation often go unreported due to fear and stigmatization. A Department of Justice report released in October 2001 confirms that bias-motivated crimes are under-reported; that a disproportionately high percentage of both victims and perpetrators of these violent crimes are young people under 25 years of age; and that only 20 percent of reported hate crimes result in arrest. A December 2001 report by the Southern Poverty Law Center (SPLC), a nonprofit organization that monitors hate groups and extremist activity in the United States, went so far as to say that the system for collecting hate crimes data in this nation is "in shambles." SPLC estimates that the real number of hate crimes being committed in the United States each year is likely closer to 50,000, as opposed to the nearly 8,000 reported by the Federal Bureau of Investigation.

Doesn’t the HCPA federalize crimes that are better left to the states to address?

The vast majority of hate crimes will continue to be prosecuted at the state level. The importance of the HCPA is that it provides a backstop to state and local law enforcement by allowing a federal prosecution if – and only if – it is necessary to achieve an effective, just result. Prior to federal prosecution of a hate crime, the Attorney General or his or her designee must certify, in writing, that (1) the state does not have jurisdiction; (2) the state has requested that the federal government assume jurisdiction; (3) the verdict or sentence obtained pursuant to state charges left demonstratively unvidicated the federal interest in eradicating bias-motivated violence; or (4) a prosecution by the United States is in the public interest and necessary to secure substantial justice.

Violent crimes, whether motivated by discriminatory bias or not, are generally covered under state law. However, federal authority to prosecute crime often overlaps with state jurisdiction. For example, there is overlapping federal jurisdiction in many homicide cases, bank robberies, kidnappings, fraud cases, and other crimes. As is frequently the case when federal and state laws overlap, the number of crimes subject to federal law will greatly exceed the number of federal prosecutions. From 2001 to 2006, for example, the Federal Bureau of Investigation documented over 55,000 hate crimes. During that period, however, the Justice Department only prosecuted around 132 cases (approximately 26 cases per year). As this statistic shows, even though the HCPA might apply in addition to a state’s hate crime law, there will be no need for a federal prosecution in the vast majority of cases (however, the HCPA is still valuable in these cases because it permits federal authorities to assist local jurisdictions in investigating and prosecuting hate crimes).

Furthermore, while criminal law is traditionally the domain of the states, Congress has regularly criminalized behavior in areas with broad national implications, including organized crime, terrorism, corporate fraud transcending state lines, and civil rights. The federal government has enacted more than 3,000 criminal statutes since 1866, a great many of which have concerned civil rights. From 1995 to 2006, the Republican-controlled Congress enacted at least 37 laws that created new federal crimes or imposed new federal criminal penalties for conduct that is already criminal under state law. These laws addressed a wide range of issues from punishing "deadbeat dads" to protecting animals used in law enforcement. In fact, the bill protecting animals used in law enforcement was considered so non-controversial that it sailed through the House by voice vote. Federalization of criminal law allows the federal government to serve as a backstop to state and local law enforcement.

The well-publicized violent hate crimes in Wyoming and Texas show that perpetrators of hate crimes usually get punished severely – doesn’t this mean that the HCPA is unnecessary?

Not every case has the same fact-pattern or the same amount of forensic evidence as the James Byrd, Jr. and Matthew Shepard cases. Often, state and local law enforcement will need to call on the resources of the Justice Department or Federal Bureau of Investigation to help with the investigation and prosecution of a case. Byrne grants and other federal financial assistance help many local jurisdictions enforce criminal statutes where there is overlapping jurisdiction. For example, in the Byrd case, local authorities in Jasper, Texas, were able to apply for and receive $284,000 in Byrne grants – a Bureau of Justice Assistance program set up to help control violent crime. However, because the Shepard case was a hate crime based on sexual orientation, local authorities in Laramie, Wyoming, could not receive the same federal assistance and had to furlough five law enforcement employees in order to afford to investigate the case.

How is sexual orientation defined in the HCPA?

Sexual orientation is not defined within the HCPA. However, it is well established that the term "sexual orientation" means homosexuality, bisexuality, or heterosexuality. In the Hate Crimes Statistics Act of 1990, the term "sexual orientation" is defined as "consensual homosexuality or heterosexuality." In complying with the Hate Crimes Statistics Act, the Federal Bureau of Investigation also collects statistics on hate crimes perpetrated against individuals on the basis of bisexuality.

Are transgender individuals protected by the HCPA?

The HCPA gives the Justice Department the power to investigate and prosecute bias-motivated violent crimes where the perpetrator selects his or her victim because of the victim’s actual or perceived gender identity. Gender identity is defined in the HCPA as actual or perceived gender-related characteristics.

In addition, the HCPA expands the Hate Crimes Statistics Act to require the Federal Bureau of Investigation to collect hate crime statistics on gender- and gender identity- biased crimes. Data is already collected by the Federal Bureau of Statistics on crimes based on race, color, religion, national origin, and sexual orientation.