by Sarah Rutledge Fischer
This is the first installment of a three-part series by Focus® Middle Tennessee magazine. We have developed this series in the hope that law enforcement and citizens will have a better understanding of the intricacies of our nation’s hate crime law, a law that was written after the horrific deaths of a black man, James Byrd, and a young gay man, Matthew Shepard. These two men were lost to the bias and lack of understanding of a few disturbed people. Because of the Federal hate crimes law, James and Matthew have received some measure of justice.
HATE CRIMES LAW: 101
What is a hate crime?
The term hate crime is a legal classification that is applied to actions that are already considered crimes in our legal justice system. The classification is only applied when the crime was motivated by the perpetrator’s bias against a certain group of people. A person convicted under this classification can face a harsher sentence than if merely convicted of the root criminal behavior.
What is the Hate Crimes Prevention Act?
The Hate Crimes Prevention Act (HCPA) is a federal law that allows the Department of Justice (DOJ) to investigate and prosecute bias motivated violent crimes—hate crimes.
Are there state hate crime laws?
Forty-five states have enacted hate crime laws. There are no state hate crime laws in Arkansas, Georgia, Indiana, South Carolina, and Wyoming. The remaining 45 states and DC do have hate crime laws, but their coverage varies widely from state to state.
What categories of people are protected?
Under the HCPA, the bias motivating a hate crime may be on account of race, color, religion, national origin, gender, sexual orientation, gender identity, or disability. These categories apply whether the victim actually embodies that characteristic or is merely perceived that way by the perpetrator.
State laws vary from state to state and often cover fewer bias categories. Only 30 states, plus DC, include sexual orientation as a category of bias. Only 15 states, plus DC, include gender identity/expression.
When can the DOJ investigate or prosecute a hate crime?
For the DOJ to investigate or prosecute a crime, it must have what is called federal jurisdiction. Jurisdiction is a complicated legal concept, but it basically breaks down to this: certain things are under the control of state and local governments, while other things are under federal control. Most of the time, crime is under state or local control, which is why you call the local police department when you’ve been robbed, and not the FBI.
In certain cases, the law gives the federal government authority to get involved in state or local affairs—this is federal jurisdiction. Under the HCPA, the DOJ has jurisdiction to get involved in state or local hate crimes only if there is a connection between the crime and interstate or foreign commerce.
What does it mean for a hate crime to have a connection with interstate or foreign commerce?
The DOJ cannot get involved with a hate crime under the HCPA unless it can prove, beyond a reasonable doubt, that there is an explicit and discrete connection with interstate or foreign commerce.
At face value, the idea of interstate or foreign commerce is pretty simple—a financially related transaction that crosses state or international borders—but in our modern world, very few transactions remain strictly local. Every time you drive down a highway or use the internet, you use channels of interstate commerce. So, the legal analysis of what level of connection is sufficiently “explicit and discrete” can be quite complicated. (Notice that the statute uses the word “discrete,” meaning separate or distinct, not “discreet,” meaning careful and private).
An example of a strong connection could be when the perpetrator purchased a weapon in one state with the intent to use it in another. A less certain connection could be when a perpetrator used a cell phone or the internet to find and harass the victim. Whatever the connection, the DOJ must be able to prove it.
What kind of hate crimes are not covered under the HCPA?
The HCPA does not address non-violent crime or hate speech. To fall under the HCPA, a crime must be a bias motivated act of violence. Non-violent crimes cannot be investigated or prosecuted under the HCPA, and hate speech may only be used as evidence of intent with regard to a violent act.
What happens to hate crimes that don’t fit under the HCPA?
A bias motivated crime that does not fall under the HCPA, either because it is not violent or because there is no connection to interstate or foreign commerce, must be investigated and prosecuted under state hate crime laws. Where there are no state hate crime laws, the crime can only be investigated and prosecuted as a regular criminal act, e.g. vandalism or assault.
What else does the HCPA do?
The HCPA also:
- gives the DOJ the power to assist state and local jurisdictions with investigations and prosecutions of hate crimes;
- authorizes federal grants to fund local programs to combat juvenile hate crimes; and updates the Hate Crimes Statistics Act (HCSA), requiring the FBI to track statistics on hate crimes based on gender/gender identity and juvenile hate crimes in addition to the categories already required, such as race, religion, and sexual orientation.
IN MEMORY OF
Though we refer to it in short hand as the Hate Crimes Prevention Act, or even the HCPA, the full name of our federal hate crime law is The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act. The Act, signed into law by President Barack Obama in 2009, was driven into existence by the hard work and activism of thousands of people fighting for their under-protected communities. These activists were reacting, not only to the general history of harassment and violence, but in specific to the stories of two men whose lives were ended brutally by acts of hate. We honor the legacies of Matthew Shepard and James Byrd Jr. by remembering their stories and working to ensure that, someday, they will stop being repeated.
Please be aware that these stories contain violent and disturbing details and may not be appropriate for all readers.
Matthew Shepard (1976-1998)
On October 6, 1998, Matthew Shepard ran into Aaron McKinney and Russell Henderson at a local bar in Laramie, Wyoming. Shepard had only been in Laramie a few months. He had enrolled at University of Wyoming to study political science and international relations in hopes of joining the Foreign Service. He was already active on campus and a member of the LGBT student alliance.
Well into the morning hours, McKinney and Henderson lured Shepard away from the bar with plans to rob him. They drove him out into the country, tied him to a split-rail fence, and beat him with the butt of a .357 Smith & Wesson pistol. The temperatures in Laramie were near freezing when McKinney and Henderson left Shepard tied to the fence and drove back to town. McKinney assumed that Shepard was already dead.
Eighteen hours later, cyclist Aaron Kreifels discovered Shepard was still tied to the fence. Shepard was rushed to a hospital in Fort Collins, Colorado where he lay comatose for four days. Shepard was suffering from hypothermia; he was covered in bruises, welts, and lacerations; and worst of all, he had suffered damage to his brain stem from which he would not recover.
Matthew Shepard was pronounced dead at 12:53 a.m. on October 12, 1998. He was 21.
McKinney and Henderson were convicted of felony murder and kidnapping. They are each serving two consecutive life sentences in prison.
James Byrd, Jr. (1949-1998)
On June 7, 1998, James Byrd, Jr. was walking home from his parents’ house in Jasper, Texas in the early morning. Byrd had grown up in Jasper. He had been a good student and a talented musician, known for his singing and piano playing. After high school, he got married and moved away. He had three children, Renee, Ross, and Jamie. He worked off and on as a salesman but also struggled with alcoholism. In 1993, Byrd and his wife divorced, and few years later, he returned to Jasper, entered Alcoholics Anonymous, and began working to improve his life.
That morning, three white men in a pickup truck stopped to offer him ride. Byrd accepted and climbed into the bed of their truck. But instead of taking him home, the three men, Shawn Allen Berry, Lawrence Russell Brewer, and John William King, drove Byrd to a deserted area outside of town. They beat Byrd and chained him to the back of the truck by his ankles. For more than three miles, the men dragged him behind the truck down an asphalt road. Byrd remained conscious through most of the ordeal until his right arm and head were severed by the edge of a sewage drain culvert, ending his life. The men dumped Byrd’s headless torso beside a road in Jasper. Byrd was only 49.
Berry, Brewer, and King were all convicted of capital murder. Brewer was executed by the state of Texas on September 21, 2011. King currently sits on Texas’ death row. Berry is serving a life sentence in prison.
HATE CRIME LAWS STATE BY STATE
Does Tennessee have hate crime laws?
Yes. Tennessee’s hate crime laws can be found at Tenn. Code. §§ 39-17-309, 40-35-114(17).
Tenn. Code. § 39-17-309 declares “it is the right of every person regardless of race, color, ancestry, religion or national origin, to be secure and protected from fear, intimidation, harassment and bodily injury caused by the activities of groups and individuals
Tenn. Code § 40-35-114(17) allows enhanced punishment for crimes against people or property where the perpetrator chooses the victim or property “in whole or in part because of the actor’s belief or perception regarding the race, religion, color, disability, sexual orientation, national origin, ancestry or gender of that person or of the owner or occupant of that property.”
How can Tennessee’s hate crime laws be improved?
Tennessee’s law should be amended to incorporate crimes committed based on gender identity/expression.
Tennessee’s law should require law enforcement to collect and report hate crimes data.
Tennessee’s law should explicitly provide for law enforcement training on hate crimes.
Does Mississippi have hate crime laws?
Yes. Mississippi’s hate crime law can be found at Mississippi Code
Miss. Code § 99-19-301 imposes enhanced penalties for crimes against people or property “committed because of the victim’s actual or perceived race, color, ancestry, ethnicity, religion, national origin or gender.”
How can Mississippi’s hate crime laws be improved?
Mississippi’s law should be amended to include crimes committed because of a victim’s sexual orientation or gender identity/expression.
Mississippi’s law should require law enforcement to collect and report hate crimes data.
Mississippi’s law should explicitly provide for law enforcement training on hate crimes.
Does Arkansas have hate crime laws?
No. Arkansas has no hate crime law.
How can Arkansas’ hate crime laws be improved?
Arkansas should enact a hate crime law that addresses sentencing or punishment for crimes against people or property that are committed based on the victim’s actual or perceived characteristics.
Arkansas should enact a hate crime law that also requires collection and reporting of hate crimes data.
Arkansas should enact a hate crime law that also explicitly provides for law enforcement training on hate crimes.
FACTORS THAT MAY INDICATE BIAS
There is no definitive list of factors that indicate when officers investigating a crime should consider it a possible hate crime. However, based on years of data, the Tennessee Bureau of Investigation compiles a list of factors that, if present in a criminal investigation, could support a finding that the crime was motivated by bias.
- The offender and victim were of a different race, religion, disability, sexual orientation, and/or ethnicity/national origin.
- There are bias related drawings, markings, symbols, or graffiti at the scene.
- The offender made bias related verbal comments, written statements, or gestures.
- There are objects, items, or things indicating bias was involved.
- The victim is a member of a category that is overwhelmingly outnumbered by other residents of neighborhood. (This factor is most relevant when a resident first moves into a neighborhood and becomes less significant with the passage of time.)
- The victim was visiting a neighborhood where previous hate crimes were committed against members of his group and where tensions remain high against that group.
- Several incidents have occurred in the same area, and all victims were of the same group.
- A substantial portion of the relevant community perceive the act as motivated by bias.
- The victim was engaged in activities promoting his or her group (e.g. membership in NAACP or participation in gay rights demonstrations).
- The incident coincided with holiday or date of particular significance to the group (e.g. Rosh Hashanah or Martin Luther King Day).
For more information on the Hate Crimes Prevention Act, check out the resources available from the Human Rights Campaign at hrc.org/resources/topic/hate-crimes
For information on what the state of Tennessee is doing under its current hate crime laws, check out the Tennessee Bureau of Investigation’s 2016 Tennessee Hate Crime annual report at tn.gov/tbi/article/recent-publication
For more information on current nationwide efforts to strengthen hate crime legislation and reporting at all levels, check out the Matthew Shepard Foundation at matthewshepard.org
Coming March 1: Part 2 of 3: On the Ground
We’ll dig deeper by taking a more personal look at how hate crime has affected families and communities; and we’ll talk with representatives in the District Attorney’s office to help understand how the prosecution of hate crimes works.
ABOUT THE JOURNALIST:
SARAH RUTLEDGE FISCHER
Sarah Rutledge Fischer is licensed as an attorney in both California and Alabama but is not currently engaged in the practice of law. If you are in need of legal advice, please seek individual counsel with an attorney licensed in your state.