Hate crime laws in the United States
Hate crime laws in the United States are state and federal laws intended to protect against hate crimes (also known as bias crimes) motivated by enmity or animus against a protected class of persons. Although state laws vary, current statutes permit federal prosecution of hate crimes committed on the basis of a person's protected characteristics of race, religion, ethnicity, nationality, gender, sexual orientation, gender identity, and disability. The U.S. Department of Justice (DOJ)/FBI, as well as campus security authorities, are required to collect and publish hate crime statistics.
Federal prosecution of hate crimes
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Civil Rights Act of 1968
The Civil Rights Act of 1968 enacted 18 U.S.C. § 245(b)(2), which permits federal prosecution of anyone who "willfully injures, intimidates or interferes with, or attempts to injure, initimidate or interfere with ... any person because of his race, color, religion or national origin" or because of the victim's attempt to engage in one of six types of federally protected activities, such as attending school, patronizing a public place/facility, applying for employment, acting as a juror in a state court or voting.
Persons violating this law face a fine or imprisonment of up to one year, or both. If bodily injury results or if such acts of intimidation involve the use of firearms, explosives or fire, individuals can receive prison terms of up to 10 years, while crimes involving kidnapping, sexual assault, or murder can be punishable by life in prison or the death penalty. U.S. District Courts provide for criminal sanctions only. The Violence Against Women Act of 1994 contained a provision at 42 U.S.C. § 13981 which allowed victims of gender-motivated hate crimes to seek "compensatory and punitive damages, injunctive and declaratory relief, and such other relief as a court may deem appropriate", but the U.S. Supreme Court ruled in United States v. Morrison that the provision is unconstitutional.
Violent Crime Control and Law Enforcement Act (1994)
The Violent Crime Control and Law Enforcement Act, enacted in 28 U.S.C. § 994 note Sec. 280003, requires the United States Sentencing Commission to increase the penalties for hate crimes committed on the basis of the actual or perceived race, color, religion, national origin, ethnicity, or gender of any person. In 1995, the Sentencing Commission implemented these guidelines, which only apply to federal crimes.
Church Arson Prevention Act (1996)
The S. 1980 (104th): Church Arson Prevention Act of 1996 was introduced to Congress on June 19, 1996, but died because the Senate Committee found some places for improvement of the bill. It was sponsored by Republican Duncan Faircloth. On May 23, 1996, the House of Representatives introduced H.R. 3525 (104th): Church Arson Prevention Act. The Act was passed by both houses in Congress and signed by President Bill Clinton on July 3, 1996. This bill became law number Pub.L. 104-155. It was sponsored by Republican Henry Hyde. The bill was summarized by the Congressional Research Service as follows: "[the Church Arson Prevention Act of 1996] makes Federal criminal code prohibitions against, and penalties for, damaging religious property or obstructing any person's free exercise of religious beliefs applicable where the offense is in, or affects, interstate commerce." One of the changes in the bill was the sentence increase for "defacing or destroying any religious real property because of race, color, or ethnic characteristics…" from 10 to 20 years. It also changed the statute of limitations from five years to seven years after the date the crime was committed. It reauthorizes the Hate Crimes Statistics Act.
Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (2009)
On October 28, 2009 President Obama signed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, attached to the National Defense Authorization Act for Fiscal Year 2010, which expanded existing United States federal hate crime law to apply to crimes motivated by a victim's actual or perceived gender, sexual orientation, gender identity, or disability, and dropped the prerequisite that the victim be engaging in a federally protected activity.
46 states and the District of Columbia have statutes criminalizing various types of bias-motivated violence or intimidation (the exceptions are Arkansas, Georgia, whose hate crime statute was struck down by the Georgia Supreme Court in 2004, South Carolina, and Wyoming). Each of these statutes covers bias on the basis of race, religion, and ethnicity; 33 cover disability; 33 of them cover sexual orientation; 29 cover gender; 22 cover transgender/gender-identity; 14 cover age; 6 cover political affiliation. and 3 along with Washington, D.C. cover homelessness.
29 states and the District of Columbia have statutes requiring the state to collect hate crime statistics; 19 of these cover sexual orientation.
3 states and the District of Columbia cover homelessness.
Sexual orientation and gender identity
- No LGBT hate crime statute at the state level
- California: Sexual orientation covered in hate crime statute
- Connecticut: Sexual orientation covered in hate crime statute
- Wisconsin: Sexual orientation covered in hate crime statute
- Minnesota: Sexual orientation covered in hate crime statute
- Nevada: Sexual orientation covered in hate crime statute
- Oregon: Sexual orientation covered in hate crime statute
- District of Columbia: Sexual orientation and gender identity covered in hate crime statute
- New Jersey: Sexual orientation covered in hate crime statute
- Vermont: Sexual orientation covered in hate crime statute
- Florida: Sexual orientation covered in hate crime statute
- Illinois: Sexual orientation covered in hate crime statute
- New Hampshire: Sexual orientation covered in hate crime statute
- Iowa: Sexual orientation covered in hate crime statute
- Michigan: Sexual orientation included in hate crime data collection only
- Maine: Sexual orientation covered in hate crime statute
- Minnesota: Gender identity covered in hate crime statute
- Texas: Sexual orientation covered in hate crime statute
- Washington State: Sexual orientation covered in hate crime statute
- Massachusetts: Sexual orientation covered in hate crime statute
- Delaware: Sexual orientation covered in hate crime statute
- Louisiana: Sexual orientation covered in hate crime statute
- Nebraska: Sexual orientation covered in hate crime statute
- California: Gender identity covered in hate crime statute
- Rhode Island: Sexual orientation covered in hate crime statute
- Missouri: Sexual orientation and gender identity covered in hate crime statute
- Vermont: Gender identity covered in hate crime statute
- Indiana: Sexual orientation included in hate crime data collection only
- Kentucky: Sexual orientation covered in hate crime statute
- New York: Sexual orientation covered in hate crime statute
- Tennessee: Sexual orientation covered in hate crime statute
- Kansas: Sexual orientation covered in hate crime statute
- Pennsylvania: Sexual orientation and gender identity covered in hate crime statute
- Puerto Rico: Sexual orientation and gender identity covered in hate crime statute
- Arizona: Sexual orientation covered in hate crime statute
- Hawaii: Sexual orientation and gender identity covered in hate crime statute
- New Mexico: Sexual orientation and gender identity covered in hate crime statute
- Connecticut: Gender identity covered in hate crime statute
- Georgia: Sexual orientation and gender identity no longer explicitly listed as protected class in hate crime statute by the Supreme Court of Georgia (U.S. state)
- Colorado: Sexual orientation and gender identity covered in hate crime statute
- Maryland: Sexual orientation and gender identity covered in hate crime statute
- New Jersey: Gender identity covered in hate crime statute
- Oregon: Gender identity covered in hate crime statute
- Pennsylvania: Sexual orientation and gender identity no longer explicitly listed as protected class in hate crime statute by the Supreme Court of Pennsylvania
- Washington State: Gender identity covered in hate crime statute
- Massachusetts: Gender identity covered in hate crime statute
- Rhode Island: Gender identity covered in hate crime statute
- Delaware: Gender identity covered in hate crime statute
- Nevada: Gender identity covered in hate crime statute
- Illinois: Gender identity covered in hate crime statute
- Tennessee: Gender Identity covered in hate crime statute
- Effective from July 1, 2019
- Indiana: Sexual orientation covered in hate crime statute
- Utah: Sexual orientation and gender identity covered in hate crime statute
- Effective from November 1, 2019
- New York State: Gender identity covered in hate crime statute
Members of law enforcement
On May 26, 2016, Louisiana was the first state to add police officers and firefighters to their state hate crime statute, when Governor John Bel Edwards signed an amendment from the legislature into law. This amendment was added, in part, as a response to the Black Lives Matter movement, which seeks to end police brutality against black people, with some advocates of the amendment using the slogan "Blue Lives Matter". Since the inception of Black Lives Matter, critics have found some of the movement's rhetoric anti-police, with the author of the amendment, Lance Harris, stating some "were employing a deliberate campaign to terrorize our officers". Despite the killing of a Texas sheriff in 2015 and the killings of two NYPD officers in the previous year, in response to the death of Eric Garner and the shooting of Michael Brown, there was little to no data suggesting hate crimes against law enforcement were a common problem when the bill was passed. A little less than two months after the amendment was passed, Baton Rouge was in the national spotlight after the Baton Rouge Police killing of Alton Sterling by two white police officers. This sparked protests in Baton Rouge, resulting in hundreds of arrests and increased racial tension nationally. In the week during those protests, five police officers were killed in Dallas, and the week after the protests, three more officers were killed in Baton Rouge. Both perpetrators were killed and the motives behind both shootings were responses to the recent killings of Black men by police officers.
Data collection statutes
Hate Crime Statistics Act of 1990
The Hate Crime Statistics Act of 1990 28 U.S.C. § 534, requires the Attorney General to collect data on crimes committed because of the victim's race, religion, disability, sexual orientation, or ethnicity. The bill was signed into law in 1990 by George H. W. Bush, and was the first federal statute to "recognize and name gay, lesbian and bisexual people." Since 1992, the Department of Justice and the FBI have jointly published an annual report on hate crime statistics.
Violent Crime Control and Law Enforcement Act of 1994
In 1994, the Violent Crime Control and Law Enforcement Act expanded the scope to include crimes based on disability, and the FBI began collecting data on disability bias crimes on January 1, 1997. In 1996, Congress permanently reauthorized the Act.
Campus Hate Crimes Right to Know Act of 1997
The Campus Hate Crimes Right to Know Act of 1997 enacted Robert Torricelli., which requires campus security authorities to collect and report data on hate crimes committed on the basis of race, gender, religion, sexual orientation, ethnicity, or disability. This bill was brought to the forefront by Senator
Prevalence of hate crimes
The DOJ and the FBI have gathered statistics on hate crimes reported to law enforcement since 1992 in accordance with the Hate Crime Statistics Act. The FBI's Criminal Justice Information Services Division has annually published these statistics as part of its Uniform Crime Reporting program. According to these reports, of the over 113,000 hate crimes since 1991, 55% were motivated by racial bias, 17% by religious bias, 14% sexual orientation bias, 14% ethnicity bias, and 1% disability bias. David Ray Hate Crimes Prevention Act
Please note that the figures in the table below do not contain data from all reporting agencies every year. 2004 figures covered a population of 254,193,439, 2014 covered 297,926,030.
Notes: The term victim may refer to a person, business, institution, or society as a whole. Though the FBI has collected UCR data since 1992, reports from 1992-1994 are not available on the FBI website. Single-bias victim totals have been calculated for 1995-1998. Race and Ethnicity/National origin were merged together starting in 2015.
|Offense type||Hate Crimes||All US Crimes|
|Murder and non-negligent manslaughter||7||16,272|
|Motor vehicle theft||26||956,846|
Deliberate attacks on the homeless as hate crimes
Florida, Maine, Maryland, and Washington, D.C. have hate crime laws that include the homeless status of an individual.
A 2007 study found that the number of violent crimes against the homeless is increasing. The rate of such documented crimes in 2005 was 30% higher than of those in 1999. 75% of all perpetrators are under the age of 25. Studies and surveys indicate that homeless people have a much higher criminal victimization rate than the non-homeless, but that most incidents never get reported to authorities.
In recent years, largely due to the efforts of the National Coalition for the Homeless (NCH) and academic researchers the problem of violence against the homeless has gained national attention. The NCH called deliberate attacks against the homeless hate crimes in their report Hate, Violence, and Death on Mainstreet USA (they retain the definition of the American Congress).
The Center for the Study of Hate & Extremism at California State University, San Bernardino in conjunction with the NCH found that 155 homeless people were killed by non-homeless people in "hate killings", while 76 people were killed in all the other traditional hate crime homicide categories such as race and religion, combined. The CSHE contends that negative and degrading portrayals of the homeless contribute to a climate where violence takes place.
Hate crime laws debate
Penalty-enhancement hate crime laws are traditionally justified on the grounds that, in Chief Justice Rehnquist's words, "this conduct is thought to inflict greater individual and societal harm.... bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest."
Classification of crimes committed against Caucasians
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In a 2001 report: Hate crimes on campus: the problem and efforts to confront it, by Stephen Wessler and Margaret Moss of the Center for the Prevention of Hate Violence at the University of Southern Maine, the authors note that "although there are fewer hate crimes directed against Caucasians than against other groups, they do occur and are prosecuted." In fact, the case in which the Supreme Court upheld hate crimes legislation against First Amendment attack, Wisconsin v. Mitchell, 508 U.S. 476 (1993), involved a white victim. Hate crime statistics published in 2002, gathered by the FBI under the auspices of the Hate Crime Statistics Act of 1990, documented over 7,000 hate crime incidents, in roughly one-fifth of which the victims were white people. However, these statistics have caused dispute. The FBI's hate crimes statistics for 1993, which similarly reported 20% of all hate crimes to be committed against white people, prompted Jill Tregor, executive director of Intergroup Clearinghouse, to decry it as "an abuse of what the hate crime laws were intended to cover", stating that the white victims of these crimes were employing hate crime laws as a means to further penalize minorities.
James B. Jacobs and Kimberly Potter note that white people, including those who may be sympathetic to the plight of those who are victims of hate crimes by white people, bristle at the notion that hate crimes against whites are somehow inferior to, and less worthy than, hate crimes against other groups. They observe that while, as stated by Altschiller, no hate crime law makes any such distinction, the proposition has been argued by "a number of writers in prominent publications", who have advocated the removal of hate crimes against whites from the category of hate crime, on the grounds that hate crime laws, in their view, are intended to be affirmative action for "protected groups". Jacobs and Potter firmly assert that such a move is "fraught with potential for social conflict and constitutional concerns."
Analysis of the 1999 FBI statistics by John Perazzo in 2001 found that white violence against black people was 28 times more likely to be labelled as a hate crime (1 in 45 incidents) than black violence against white people (1 in 1254 incidents). In analyzing hate crime hoaxes, Katheryn Russell-Brown propounds a hypothesis explaining the disparity in how hate crimes against whites are viewed with respect to hate crimes against blacks. She hypothesizes that the prevailing view in the minds of the public, that hate-crimes-against-blacks hoaxers intend to take advantage of, is that the crime that whites are most likely to commit against blacks is a hate crime, and that it is hard for (in her words) "most of us" to envision a white person committing a crime against a black person for a different reason. The only white people who commit crimes against black people, goes the public belief, are racially prejudiced white extremists. Whereas in contrast, she continues, the situation with hate-crimes-against-whites hoaxers differs, because the popular perception is that black people in general are liable to "run amok, committing depraved, unprovoked acts of violence" against white people.
P. J. Henry and Felicia Pratto assert that while certain hate crimes (that they do not specify) against white people are a valid category, that one can "speak sensibly of", and that while such crimes may be the result of racial prejudice, (and therefore if that is the case, they are squarely covered by hate crime legislation intent for prosecution), in a limited definition of the word, they assert do not constitute actual racism per se, because a hate crime against a member of a group that is superior in the alleged and dated power hierarchy by a member of one that is inferior, they believe may not be racist. The concept of racism as understood by a limited number of social scientists and some others, they allege, requires as a fundamental element a superior-to-inferior group-based power relationship, which a hate crime against white people they believe does not have. However, other social scientists who define racism in a broader sense realize "whites" have over the many centuries, and often do experience discrimination and segregation from their "non white" human cousins, because of their actually or perceived race. And since the components of discrimination and segregation exist within an academic definition of racism, "whites" have been, and many times are victims of racism. Current prison culture in America is a classic example of such discrimination and segregation, as whole groups, and different "races" are discriminated against and segregated based on such, with "whites" receiving more harsh treatment because of their perceived race and/or minority status in prison.
Not all social scientists agree or affirm the opinion/supposition that racism litmus tests should be based on a group-based power relationships that include thousands of individuals over hundreds of years, rather they affirm they should be taken on a more individual case by case basis. Many social scientists agree that this is the most comprehensive and sensible way to determine whether racism is truly a motivating factor when the victim is white and the perpetrator is black. "Whites" are legally protected by hate crimes laws both within the laws themselves, and within the constitution's requirement they receive equal protection of the laws. Therefore, it's a moot point to determine if racism is a factor in the case of "black" on "white" crime for prosecution, since racism alone is not the only factor needed for prosecution. What is relevant to determine prosecution for a hate crime is whether any race or some other "protected characteristic" not "protected groups" was a factor in why a person targeted that/those individual/s to be their victim. e.g. If a "black" person targets a "white" person to be their victim simply because of his/her race or perceived race, whatever their accompanying rationale, they would be subject to hate crime prosecution. However, it's not without merit to determine their rationale, because it's within their rationale that one may verify if a true hate crime has been committed. This is why hate crimes are difficult to prosecute, because they essentially involve prosecuting thoughts rather than physical crimes, which are easier to prove. Therefore, this individual approach has been preferred over a blanket broad brush approach of past perceived ancestral sufferings and feelings of inferiority and/or superiority of groups that encompass thousands of individuals over hundreds of years.
Spike in hate crimes (2017)
The United States has experienced a significant increase in acts of intimidation, vandalism, and violence towards the Muslim and Jewish communities. Following the September 11, 2001, terrorist attacks, the nation witnessed a wave of attacks against Americans and others who appeared to be Muslim, Sikh, Middle Eastern, or South Asian. We have also witnessed an uptick in crimes against the Jewish community in 2016 and 2017.— Chief Will D. Johnson Chair of the International Association of Chiefs of Police to the United States Senate Committee on the Judiciary hearing entitled "Responses to the Increase in Religious Hate Crimes" May 2, 2017
A United States Senate Committee on the Judiciary hearing entitled "Responses to the Increase in Religious Hate Crimes" was held on May 2, 2017 following a "wave of more than 150 bomb threats against Jewish community centers and day schools". In his statement to the hearing, Vanita Gupta, of the Leadership Conference on Civil and Human Rights, reported that,
Today's hearing comes at a crucial time, when too many people in this country feel unwelcome, unsafe, and marginalized. Divisive rhetoric during the recent presidential election, comments and policies targeting or casting wide aspersions on Muslim, immigrant, and other marginalized communities have heightened concerns that our country is increasingly legitimizing or normalizing hate. From the tragic shooting of two South Asian men in Kansas told to "get out of my country" to mosque arsons and synagogue vandalism to the defacing of a Maryland church with graffiti stating, "Trump Nation, Whites Only," an alarming number of gut-wrenching incidents of hate-motivated violence have shaken the public in recent months.— Vanita Gupta Senate Committee on the Judiciary hearing on hate crimes. May 2, 2017
During the hearing Eric Treene, the Justice Department's "special counsel for religious discrimination" said that Attorney General Jeff Sessions was "committed to prosecuting those who commit religious hate crimes." Democratic senators raised concerns that the "rhetoric and policies" of President Donald Trump's administration had "contributed to a spike" in hate crimes. The hearing did not include any Muslims.
A May 30 article in The Guardian entitled "Legitimized in their hatred': a weekend of violence in Trump's America" questioned whether Trump's presidency had "emboldened racial violence" and listed the "brutal double murder in Portland, a stabbing in California, and the hit-and-run death of a Native American man" over Memorial weekend as "dark signs". Thirty-four-year-old Anthony Hammond faced hate crime charges after reportedly stabbing "a black man with a machete after yelling racial slurs" on May 27, 2017 in Clearlake, California.
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- Jacobs, James B.; Potter, Kimberly (2000). Hate crimes: criminal law & identity politics. Studies in Crime and Public Policy. Oxford University Press, USA. p. 134. ISBN 9780198032229.
When the FBI's 1993 hate crime statistics reported that whites comprised 20 percent of all hate crime victims, some advocacy groups questioned whether the hate crime laws were being perverted.12 Jill Tregor, executive director of the San Francisco-based Intergroup Clearinghouse, which provides legal and emotional counseling to hate crime victims, stated, "This is an abuse of what the hate crime laws were intended to cover."13 Tregor accused white hate crime victims of using the laws to enhance penalties against minorities, who already experience prejudice within the criminal justice system.14 Whites, generally sympathetic to the aspirations of minorities, may bristle at the suggestion that crimes motivated by blacks' racism against whites should be treated as a less virulent strain of hate crime, or not as hate crime at all. While no enacted hate crime law makes that distinction, a number of writers in prominent publications, likening hate crime laws to affirmative action for "protected groups," advocate the exclusion of racist crimes against whites from their coverage.15 This issue alone seems fraught with potential for social conflict and constitutional concerns.
- Anthony Walsh (2004). Race and crime: a biosocial analysis. Nova Publishers. pp. 44–45. ISBN 9781590339701.
- Katheryn Russell-Brown (1998). The color of crime: racial hoaxes, white fear, black protectionism, police harassment, and other macroaggressions. Critical America. NYU Press. p. 80. ISBN 9780814774717.
- P. J. Henry and Felicia Pratto (2010). "Power and Racism". In Ana Guinote and Theresa K. Vescio (ed.). The Social Psychology of Power. Guilford Press. p. 344. ISBN 9781606236192.
- "Responses to the Increase in Religious Hate Crimes". United States Senate Committee on the Judiciary. May 2, 2017. Retrieved May 31, 2017. Senators Chuck Grassley R (IA) (Chair), Patrick Leahy D (VT) and Dick Durbin D (IL)
- Gurman, Sadie (May 2, 2017). "Justice Department committed to prosecuting religious hate crimes, official says". Washington: Associated Press. Retrieved May 31, 2017.
- "Statement of Chief Will D. Johnson Chair of the International Association of Chiefs of Police Human and Civil Rights Committee Responses to the Increase in Religious Hate Crimes Committee on the Judiciary United States Senate" (PDF). International Association of Chiefs of Police (IACP). May 2, 2017. p. 6. Retrieved May 31, 2017.
The United States has experienced a significant increase in acts of intimidation, vandalism, and violence towards the Muslim and Jewish communities. Following the September 11, 2001, terrorist attacks, the nation witnessed a wave of attacks against Americans and others who appeared to be Muslim, Sikh, Middle Eastern, or South Asian. We have also witnessed an uptick in crimes against the Jewish community in 2016 and 2017.
- "Statement of Vanita Gupta, Incoming President & Ceo The Leadership Conference on Civil and Human Rights "Responses to the increase in religious hate crimes"" (PDF). United States Senate Committee on the Judiciary. May 2, 2017. Retrieved May 31, 2017.
- Abdelaziz, Rowaida (May 2, 2017). "Senators Held A Hearing About Religious Hate Crimes, And Not One Muslim Was Included: We can't tackle Islamophobia without Muslims". The Huffington Post. Retrieved May 31, 2017.
- "Police: Man yelled racial slurs before machete attack in Northern California". Los Angeles Times via Associated Press. May 30, 2017. Retrieved May 31, 2017.
- Kamb, Lewis (May 29, 2017). "Young father run down, killed in Grays Harbor County campground confrontation". Seattle Times. Retrieved May 31, 2017.
- Levin, Sam (May 31, 2017). "'Legitimized in their hatred': a weekend of violence in Trump's America: Has Donald Trump's presidency emboldened racial violence? A brutal double murder in Portland, a stabbing in California, and the hit-and-run death of a Native American man – all within a few days – are dark signs". The Guardian. San Francisco. Retrieved May 31, 2017.
- Database of hate crime statutes by state, via Anti-Defamation League
- [Hate Crimes Bill S. 1105], detailed information on hate crimes bill.
- "Hate Crime." Oxford Bibliographies Online: Criminology.