Legal Sidebari

Overview of Recent Anti-Lynching Proposals
June 29, 2020
Following the death of George Floyd in police custody in May and the fatal February shooting of Ahmaud
Arbery, interest has heightened in legislation that would criminalize lynching—often described as death
or bodily injury caused by two or more individuals acting without legal authority. A number of states have
enacted anti-lynching laws, as localized crimes like murder tend to be a subject of state, rather than
federal law. Although the conduct criminalized under those state laws can implicate various federal laws,
there is no federal law expressly governing lynching notwithstanding decades of legislative proposals on
that front. In June, Members introduced two police reform bil s—the George Floyd Justice in Policing Act
of 2020 (Justice in Policing Act) and the Just and Unifying Solutions To Invigorate Communities
Everywhere Act of 2020 (JUSTICE Act)—both of which include “substantively identical” sections that
are described as anti-lynching provisions.
These sections build on earlier legislation from this and other Congresses. Indeed, the anti-lynching
provisions contained in the JUSTICE Act and the Justice in Policing Act are largely identical to the
proscribed conduct in two bil s that had already gained significant traction in the 116th Congress. One,
the Justice for Victims of Lynching Act of 2019 (H.R. 3536, S. 488), passed the Senate on February 14,
2019. A nearly identical anti-lynching bil titled the Emmett Til Anti-Lynching Act (H.R. 35) passed the
House on February 26, 2020. Similar attempts to enact federal anti-lynching laws did not achieve
bicameral approval in the 115th Congress—a fate for approximately 200 anti-lynching proposals in the
last century. For example, in 1918 Representative Leonidas Dyer of Missouri introduced an anti-lynching
bil to remedy the refusal of states to prosecute “the perpetrators of . . . lynchings” under their own laws.
Although Dyer’s bil eventual y “passed the House of Representatives in 1922 . . . it was ultimately
blocked by filibuster in the Senate.”
Title IV of the Justice in Policing Act and Title IV of the JUSTICE Act would each “create a new section
of the federal criminal code entitled ‘Lynching.’” Both bil s would make it a federal crime to “conspire[]
with another person to violate” one of the following four federal hate crimes statutes:
 18 U.S.C. § 245, which, among other things, prohibits interference with an individual’s
participation in certain protected activity because of race, color, religion, or national
origin;
 18 U.S.C. § 247, which prohibits conduct including certain destruction of religious real
property because of the religious character of the property, or because of the race, color,
or ethnic characteristics of the people associated with that property;
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 18 U.S.C. § 249, which, among other things, prohibits causing bodily injury to another
because of that person’s actual or perceived race, color, religion, or national origin, or
because of that person’s actual or perceived religion, national origin, gender, sexual
orientation, gender identity, or disability where there is a sufficient interstate nexus;
 42 U.S.C. § 3631, which, among other things, prohibits interference through threatened
or actual force with housing rights because of race, color, religion, sex, handicap, familial
status, or national origin.
Proponents of the legislation point to both its substantive and symbolic effects. Conspiring to violate the
statutes listed above is already a crime under 18 U.S.C. § 371, a federal statute that broadly prohibits
conspiracies to “commit any offense against the United States” when at least one person “do[es] any act
to effect the object of the conspiracy . . . .” Ordinarily, to prove a § 371 conspiracy the government must
demonstrate “(1) an agreement between two or more persons to pursue an unlawful objective; (2) the
defendant’s knowledge of the unlawful objective and voluntary agreement to join the conspiracy; and (3)
an overt act by one or more of the members of the conspiracy in furtherance of the objective of the
conspiracy.” Federal prosecutors have used § 371 to prosecute hate crime conspiracies. A key distinction
between § 371 and the anti-lynching provisions in the Justice in Policing Act and the JUSTICE Act,
however, is that the anti-lynching proposals would increase the maximum applicable prison term from
five years under § 371 to ten years—or longer when authorized by the underlying statute. Moreover, the
findings of the Justice in Policing Act and the JUSTICE Act note the symbolic value of creating a distinct
anti-lynching statute that “recognizes the history of lynching in the United States” and thereby facilitates
“reconciliation and . . . a new understanding, on which improved racial relations can be forged.”
One criticism of the legislation has been that it could impose significant penalties for relatively minor
offenses. Earlier this month, Senate consideration of a stand-alone House-passed anti-lynching proposal
stal ed following objection by Senator Rand Paul of Kentucky, who expressed concern that the bil would
impose up to ten years of imprisonment for “any bodily injury, including a cut, an abrasion, or a bruise,
physical pain, il ness, or any other injury to the body no matter how temporary.” And, in fact, many of the
hate crimes laws above cover non-violent actions, and hate crimes conspiracies may be established with a
showing of just an agreement, intent, and an overt act. However, conspiracies to violate hate crimes
statutes are already subject to a five year penalty under an existing federal statute. In addition, the scope
of the anti-lynching proposals contained in H.R. 35, S. 488, the JUSTICE Act, and the Justice in Policing
Act depends in part on the underlying hate crimes statutes—which apply to offenses motivated by a
specific bias when there is sufficient federal jurisdiction. Practical y speaking, the scope of the hate
crimes statutes is also limited by prosecutorial discretion, which involves a “policy judgment” regarding
whether “the fundamental interests of society require the application of federal criminal law to a
particular set of circumstances.” In certain instances federal prosecutors have pursued hate crimes
prosecutions of shootings, arsons, assaults, and murders committed because of racial, religious, and other
biases. Nevertheless, states “general y prosecute most hate crimes.”

Author Information

Peter G. Berris

Legislative Attorney

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