Legal Sidebari

Overview of Recent Anti-Lynching Proposals
Updated November 18, 2020
This Legal Sidebar was initially published on June 29, 2020, but has been updated to reflect changes to
the Justice in Policing Act.
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
such as 18 U.S.C. §§ 241, 242, 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 original y
included “substantively identical” sections described as anti-lynching provisions. The anti-lynching
provision was later removed from the version of the Justice in Policing Act that passed the House.
Sections like the one contained in the JUSTICE Act and original y contained in the Justice in Policing Act
build on earlier legislation from this and other Congresses. Indeed, these anti-lynching provisions were
largely identical to the conduct proscribed in two previously-introduced standalone bil s. 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.”
Like the stand-alone House or Senate passed anti-lynching provisions from earlier in the 116th Congress,
Title IV of the JUSTICE Act would “create a new section of the federal criminal code entitled
‘Lynching.’” It would make it a federal crime to “conspire[] with another person to violate” one of the
following four federal hate crimes statutes:
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 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;
 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 provision in the JUSTICE Act, however, is that the JUSTICE Act
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 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 anti-lynching legislation has been that it could impose significant penalties for relatively
minor offenses. Earlier this year, 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, and the JUSTICE 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.”

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Author Information

Peter G. Berris

Legislative Attorney





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