What Makes a Crime a Hate Crime and Who Has Jurisdiction for Prosecution?

I. In General

A hate crime originates because of the perpetrator’s motivation and decision to initiate a crime due to the different physical appearance or apparent status of the victim. Hate crimes were first investigated in the 1920’s but were only recognized as established - separate crimes in the 1980s and early 1990s in response to sociological studies that indicated an increase in crimes based on implicit or explicit bias, and the Civil Rights Act of 1964. Hate in and of itself is not a crime, and policing agencies must remain mindful of this when investigating particularly horrific crimes. Motivation is not the “intent”, that is, “mens rea” required by the law as an element for the base offense of which the perpetrator is accused.

II. State or Federal Jurisdiction

As of March 2021, forty - nine States as well as the federal government have some form of hate-crime statute. State laws against hate crimes vary widely, resulting in unequal protection from similar violent crimes in different jurisdictions. (https://www.brennancenter.org/our-work/research-reports/state-hate-crimes-statutes) The Federal Hate Crime Act statute is found at 18 U.S. Code § 249 - Hate crime acts. (See: https://www.law.cornell.edu/uscode/text/18/249). The Federal government normally takes jurisdiction only when:

“(1) In general.—No prosecution of any offense described in this subsection may be undertaken by the United States, except under the certification in writing of the Attorney General, or a designee, that—

(A) the State does not have jurisdiction;

(B) the State has requested that the Federal Government assume jurisdiction;

(C) the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence; or

(D) a prosecution by the United States is in the public interest and necessary to secure substantial justice.” 18 U.S. Code § 249 (b)

Otherwise, the States have jurisdiction. The current interest is in the Georgia hate crimes statute. The Georgia statute was signed by the Governor of Georgia on June 26, 2020. Before that time, Georgia had been one of four remaining states without a hate crimes law.

Lawmakers called for changes to the state code to include hate crimes after the shooting death of Armaud Arbery, who was killed while jogging. Arbery was Black and the men involved in the shooting are White. The new law includes additional penalties and sentences for any crime motivated by a victim’s race, color, religion, national origin, sexual orientation, gender or disability. Like many states, the Georgia law does not provide for a standalone hate crime, instead allowing an additional penalty when a person is convicted of another crime.

A hate crime charge can be included in an indictment or added at some point before trial. If a jury convicts the defendant of the underlying crime, prosecutors can present evidence for a hate crime sentencing enhancement. Defense attorneys can present their own evidence, and the jury deliberates again. If jurors find it's a hate crime, there is a mandatory enhancement of at least two years in prison and a fine of up to $5,000 for a felony. (Georgia Title 17, Criminal Procedure)

 A few States limit their statutes to crimes such as harassment, assault, and damage to property. However, other states define a hate crime as: first, any statutory crime; and second, like Georgia, that the crime is based on (or combined with) a prejudicial belief or delusion regarding the victim's race, religion, color, disability, sexual orientation, national origin, or ancestry. There are still a few States that exclude crimes based on a belief regarding the victim's sexual orientation. In all states, the victim's actual status is irrelevant. For example, if a victim is attacked by someone who believes that the victim is gay, the attack is a hate crime whether or not the victim is actually gay. Conversely, if the motivation is not the result of a prejudicial belief or delusion, or results from a mental defect or disability defined in State or Federal law, the perpetrator’s actions as a hate crime may be rebuttable.

III. Federal Investigatory History 

The Federal Bureau of Investigation began scrutinizing what are now called hate crimes as far back as World War I. “Their role increased following the passage of the Civil Rights Act of 1964. Before then, the federal government took the position that protection of civil rights was a local function, not a federal one. However, the murders of civil rights workers Michael Schwerner, Andrew Goodman, and James Chaney, near Philadelphia, Mississippi, in June 1964 provided the impetus for a visible and sustained federal effort to protect and foster civil rights for African Americans. MIBURN, as the case was called (it stood for Mississippi Burning), became the largest federal investigation ever conducted in Mississippi. On October 20, 1967, seven men were convicted of conspiring to violate the constitutional rights of the slain civil rights workers. All seven were sentenced to prison terms ranging from three to 10 years.

The FBI works closely with state, local or tribal authorities on investigations, even when federal charges are not brought. FBI resources, forensic expertise, and experience in identification and proof of hate-based motivations often provide an invaluable complement to local law enforcement. Many cases are also prosecuted under state statutes such as murder, arson, or more recent local ethnic intimidation laws. Once the state prosecution begins, the Department of Justice follows the proceedings to ensure that the federal interest is vindicated and the law is applied equally among the 95 U.S. Judicial Districts.” ( https://www.fbi.gov/investigate/civil-rights/hate-crimes )

IV. The Types of Hate Crime Statutes Under Federal or State Law.

Generally, there are three types of hate-crime statutes. Two provide for punishment and the third mandates only the collection of hate-crime data. One version defines a hate crime as a discrete offense and provides stiff punishment for the offense. Under Ohio's statute, for example, any person who commits menacing, aggravated menacing, criminal damage or criminal endangerment, criminal mischief, or telephone harassment "by reason of the race, color, religion, or national origin of another person or group of persons" is guilty of the hate crime termed ethnic intimidation (Ohio Rev. Code Ann. § 2927.12 [Baldwin 1996]). The gravity of ethnic intimidation is always one degree higher than any base offense. Following this part of the Ohio Revised Code, Menacing is a misdemeanor of the fourth degree. Menacing based on ethnicity is a more serious offense, classified in Ohio as a misdemeanor of the third degree, being bumped up one degree.

A second type of hate-crime law enhances punishment for certain offenses that are motivated by hate. In Wisconsin, for example, defendants who intentionally select their victims based at least in part on the victims' race, religion, color, disability, sexual orientation, national origin, or ancestry are subject to more severe penalties than they would receive in the absence of such hate-based intent (Wis. Stat. § 939.645 [1995]).  So, in Wisconsin, for a class A misdemeanor based on hate, the maximum fine is $10,000, and the maximum period of imprisonment is two years in jail or prison (Wis. Stat. Ann. § 939.645(2)(a)), whereas an ordinary class A misdemeanor is punishable by a maximum fine of $10,000 or up to nine months in jail, or both (§ 939.51(3)(a)). For a class B misdemeanor, a less serious crime, the maximum fine is $1,000, and the maximum imprisonment is 90 days in jail. If the class B misdemeanor is a hate crime, the maximum fine is $10,000, and the maximum sentence is one year in jail.

A third type of hate-crime statute simply requires the collection of statistics. At the federal level, The Hate Crime Statistics Act of 1990 (Pub. L. No. 101-275, 104 Stat. 140 [28 U.S.C.A. § 534 (1990)]) requires the Justice Department to collect statistics on crimes that manifest evidence of prejudice. Data must be acquired for crimes based on race, religion, disability, sexual orientation, or ethnicity. The purpose of the act is to provide the data necessary for Congress to develop effective policies against hate-motivated violence, to raise public awareness, and to track hate-crime trends.

V. Current Federal Legislative Action.

To combat hate crime in this pandemic era, H.Res. 908 condemning all forms of anti-Asian sentiment as related to COVID-19 was introduced by Representative Grace Meng  of New York and multiple other sponsors on 03/25/2020. It calls on federal officials to expeditiously investigate and document all credible reports of hate crimes and incidents and threats against the Asian-American community and prosecute perpetrators. This resolution was voted on and approved by the House of Representatives on 09/17/2020 by a vote of 243 to 164.

A simple resolution, H. Res. (House of Representatives) or S. Res. (Senate), is a proposal that addresses matters entirely within the prerogative of one Chamber or the other. It requires neither the approval of the other Chamber nor the signature of the President, and it does not have the force of law. Simple resolutions concern the rules of one Chamber or express the sentiments of a single Chamber. For example, a simple resolution may offer condolences to the family of a deceased Member of Congress, or it may express the opinion of one Chamber or the other on foreign policy or other executive business. https://www.lexisnexis.com/help/CU/Serial_Set/About_Bills.htm

The Senate would not take up the House Resolution due to the incorrect procedural format detailed in the previous paragraph. A House Joint Resolution (H. J. Res.) would have been considered by the Senate. Rep. Meng, and multiple other sponsors, possibly realizing the format and procedural error, also reintroduced this Resolution as a Bill on 05/05/2020 as H.R.6721 , The  COVID-19 Hate Crimes Act, 116th Congress (2019-2020). The Bill was forwarded to the House Committee on the Judiciary on 05/05/2020. This was the last action taken on this Bill. The text of this Bill is available on https://www.congress.gov/bill/116th-congress/house-bill/6721/text . Subsequent to this last action the Bill was not voted back to the Floor

 Because the House Resolution failed to to proceed to Committee in the Senate; the Bill ( H.R.6721) was reintroduced the following session as H.R.1843 - To Facilitate the Expedited Review of COVID-19 Hate Crimes, and for Other Purposes, in the 117th Congress (2021-2022). On 03/11/2021 the Bill was referred to the House Committee on the Judiciary. As of 03/20/2021 text has not been received for H.R. 1843 by the Library of Congress. Bills are generally sent to the Library of Congress from the GPO, the Government Publishing Office, a day or two after they are introduced on the floor of the House or Senate. Delays can occur when there are a large number of bills to prepare or when a very large bill has to be printed. In this case, it appears the contents of the Bill are still being crafted by the sponsors. Hopefully, the language in H.R. 1843 will be reconciled with The Hate Crime Statistics Act of 1990. The most recent available draft of the Bill from the previous session of Congress (H.R. 6721) requires the collection of statistics relating to specifically executed COVID related crimes, as in The Hate Crime Statistics Act of 1990 (Pub. L. No. 101-275, 104 Stat. 140 [28 U.S.C.A. § 534 (1990)]). See Section IV paragraph 4 of this article. How this Bill will alter or augment 104 Stat. 140 [28 U.S.C.A. § 534 (1990), after reconciliation, remains to be seen.

Further, The content of 18 U.S. Code § 249(2A) states:

“(2) Offenses involving actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability.—

(A) In general.—Whoever, whether or not acting under color of law, in any circumstance described in subparagraph (B) or paragraph (3), willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person…“

This appears globally inclusive, so how the new Bill will augment enforcement is yet to be shown. The White House is fully on board with the spirit, if not the known content of the Bill by issuing a supportive statement on March 19, 2021. The full statement is viewable at, https://www.whitehouse.gov/briefing-room/statements-releases/2021/03/19/statement-by-president-biden-on-the-covid-19-hate-crimes-act/ .