September 17, 2019
Department of Justice’s Role in Investigating and Prosecuting
Hate Crimes
In the aftermath of the shooting at an El Paso, TX,
government assume jurisdiction, (3) the verdict or sentence
Walmart, where the shooter told authorities that he was
obtained by the state left the federal interest demonstrably
targeting “Mexicans” and an online post attributed to him
un-vindicated, or (4) prosecution is in the public interest
decried the “Hispanic invasion of Texas,” the Federal
and necessary to secure substantial justice.
Bureau of Investigation (FBI) has opened an investigation
into whether the shooting was a hate crime, and the U.S.
Damage to Religious Property, Church Arson
Attorney for the Western District of Texas has stated that
Prevention Act (18 U.S.C. §247)
federal hate crime charges might be brought against the
Under this statute, it is a federal crime to intentionally
shooter. This and other similar incidents have raised
deface, damage, or destroy real property due to its religious
questions about how the Department of Justice (DOJ)
nature, where the crime affects interstate or foreign
investigates and prosecutes hate crimes.
commerce, or because of the race, color, or ethnic
characteristics of the people associated with the property.
The statute also criminalizes the intentional obstruction by
force or threat of force of any person in the enjoyment of
What are hate crimes? DOJ defines hate crimes as
that person’s free exercise of religious beliefs.
“acts of physical harm and specific criminal threats
motivated by animus based on race, color, national
A prosecution under this statute cannot be undertaken
origin, religion, gender, sexual orientation, gender
without written certification from the AG, or his designee,
identity, or disability.”
that prosecution is in the public interest and necessary to

secure substantial justice.
Federal Hate Crime Statutes
Violent Interference with Federally Protected
DOJ identifies several statutes under which it can prosecute
Rights (18 U.S.C. §245)
hate crimes.
Under this statute, it is a federal crime to use or threaten to
The Matthew Shepard and James Byrd, Jr. Hate
use force to willfully interfere with any person because of
Crime Prevention Act, 2009 (18 U.S.C. §249)
his or her race, color, religion, or national origin and
Under this statute, it is a federal crime to willfully cause
because the person is participating in a federally protected
bodily injury, or attempt to do so using a dangerous
activity, such as public education, employment, jury
weapon, because of the victim’s actual or perceived race,
service, travel, or the enjoyment of public accommodations,
color, religion, or national origin. The statute also covers
or is helping another person to do so.
crimes committed because of the actual or perceived
religion, national origin, sexual orientation, gender, gender
Section 245 was the primary federal hate crimes statute
identity, or disability of any person, if the crime affected
prior to the enactment of Section 249.
interstate or foreign commerce or occurred within federal
special maritime or territorial jurisdiction.
A prosecution under this statute cannot be undertaken
without written certification from the AG, or an Assistant
Through the enactment of Section 249, Congress expanded
Attorney General (AAG) to whom the AG has specifically
federal jurisdiction over hate crimes to (1) address the
delegated the power, that prosecution is in the public
limitations of existing federal hate crime statutes at the
interest and necessary to secure substantial justice.
time, (2) allow the resources and expertise of federal law
Conspiracy against Rights (18 U.S.C. §241)
enforcement to aid hate crime investigations where there is
joint federal-state jurisdiction, and (3) ensure that the
Under this statute, it is unlawful for two or more persons to
federal government’s interest in protecting civil rights can
conspire to injure, threaten, or intimidate a person who is
be upheld when states’ laws or prosecutions do not
exercising any right or privilege secured to him or her by
adequately do so.
the Constitution or the laws of the United States.
Criminal Interference with the Right to Fair
A requirement in Section 249 limits DOJ’s authority to
Housing (42 U.S.C. §3631)
prosecute hate crimes to cases where a substantial federal
interest exists. Prosecutions under this statute cannot be
Under this statute, it is a federal crime to use or threaten to
undertaken without written certification from the Attorney
use force to interfere with housing rights because of the
victim’s race, color, religion, sex, disability, familial status,
General (AG), or his designee, that (1) the state does not
have jurisdiction, (2) the state has requested that the federal
or national origin.
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Department of Justice’s Role in Investigating and Prosecuting Hate Crimes
The Role of the Federal Bureau of
whether opening a case is appropriate. These reviews
Investigation
includes actions such as speaking to and reviewing
The FBI is the lead investigatory agency for all federal hate
materials received from a complainant and reviewing
crime investigations. It also works with state, local, tribal,
publicly available information.
and other federal law enforcement agencies to investigate
hate crimes. The FBI states that hate crime investigations
Both the U.S. Attorneys’ Offices and the Civil Rights
are one of the top priorities of its civil rights program.
Division are authorized to investigate and prosecute on their
own any type of civil rights offense. If a U.S. Attorney’s
Other FBI responsibilities related to hate crimes include the
Office initiates a civil rights case, it has to notify the Civil
following:
Rights Division of its investigation. Likewise, if the Civil
Rights Division initiates its own investigation of a civil
Law Enforcement Support: The FBI works with other law
rights violation, it is required to notify the U.S. Attorney’s
enforcement agencies on hate crime investigations, even
Office for the district in which the violation occurred. As a
when federal charges are not brought. The FBI’s resources
part of this notification process, the notifying entity has to
and expertise can be valuable to local law enforcement in
provide (1) the identity of the targets of the investigation,
hate crime investigations.
(2) the factual allegations under investigation, (3) the
statutes that may have been violated, (4) an assessment of
Assisting Prosecutors: The FBI forwards results of
the significance of the case and whether the case is one of
completed hate crime investigations to local U.S.
national interest, and (5) proposed staffing of the matter.
Attorney’s Offices and DOJ’s Civil Rights Division, which
decide whether a federal prosecution is warranted. Federal
If the case is deemed to be of national interest by the AAG
prosecution of these crimes may move forward if, for
of the Civil Rights Division, the AAG can require a U.S.
example, local authorities are unwilling or unable to
Attorney’s Office and the division to serve as co-counsel
prosecute a hate crime.
from the initiation of the investigation through prosecution.
The AAG can also decide it is best that the case only be
Public Outreach: The FBI deems outreach to be a critical
staffed by attorneys from a U.S. Attorney’s Office or the
component of its civil rights program. The FBI works with
Civil Rights Division. When making staffing decisions on a
various organizations to identify violations of federal civil
case, the AAG considers all circumstances, including the
rights laws. Many of the FBI’s field offices participate in
experience of the particular U.S. Attorney’s Office and the
working groups with state and local law enforcement and
efficient use of government resources.
other stakeholders to develop strategies to address local
hate crime problems.
Cases of National Interest. A case of national
Training: The FBI conducts annual operational seminars,
interest is one that presents important public policy
workshops, and training sessions for local law enforcement,
considerations; presents a novel issue of law; may set
minority and religious organizations, and community
important precedent because of peculiar facts and
groups to promote cooperation and reduce civil rights
circumstances; has simultaneous investigations in
abuses. The FBI also provides hate crimes training for new
multiple districts (unless the United States Attorney’s
and current FBI agents and local law enforcement officers.
Office in each district and the Civil Rights Division
conclude that national interests are not involved); has
The Role of DOJ’s Civil Rights Division
international or foreign policy implications; is urgent
and the U.S. Attorney’s Offices
or sensitive; or substantially affects the uniform
DOJ’s Civil Rights Division and the 93 U.S. Attorneys’
application of the law. A case involving a violation of
Offices share responsibility for enforcing federal civil rights
the federal criminal civil rights laws resulting in death
statutes, which include hate crimes. U.S. Attorneys’ Offices
is presumed to be a case of national interest.
assist the Civil Rights Division by providing additional
resources to redress civil rights violations, knowledge of

local dynamics in both investigations and litigation, and
subject matter expertise in particular civil rights areas.
Criminal civil rights cases can be declined by a U.S.
However, the Civil Rights Division retains final authority to
Attorney’s Office, but ultimate declination authority rests
determine whether a civil rights investigation should be
with the Civil Rights Division. In any case resulting in
opened; a complaint should be filed; or a case should be
death, the division is required to receive the concurrence of
settled, and on what terms.
the relevant U.S. Attorney’s Office before closing the case.
While DOJ policy requires U.S. Attorneys’ Offices and the
Information regarding potential violations of federal civil
Civil Rights Division to coordinate on cases, a declination
rights statutes may come to the Civil Rights Division or a
from a U.S. Attorney’s Office does not prevent the Civil
U.S. Attorney’s Office through a variety of avenues,
Rights Division from pursuing the case.
including referrals or complaints from other federal
agencies, victims or community organizations, private
attorneys, media coverage, and other sources. Upon
Nathan James, Analyst in Crime Policy
receiving such information, the Civil Rights Division or a
IF11312
U.S. Attorney’s Office may engage in review to determine


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Department of Justice’s Role in Investigating and Prosecuting Hate Crimes


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