Hate Crimes: Key Federal Statutes

Hate Crimes: Key Federal Statutes

February 23, 2023
Hate Crimes: Key Federal Statutes
The Federal Bureau of Investigation characterizes hate
of conduct is not required for it to occur under color of law,
crimes as offenses like murder, assault, or arson that are
but the conduct must be more than a purely “personal
committed because of a particular bias such as prejudice
pursuit.” Screws v. United States, 325 U.S. 91, 111 (1945).
based on the race or gender of the victim. Federal
Cases interpreting “under color of law” generally focus on
prosecutors have a number of statutory options for charging
law enforcement and corrections personnel, but a broad
hate crimes. This In Focus provides a brief overview of the
range of federal and state officials may act under color of
main statutes. More extensive discussion is found in CRS
law. In limited cases, private citizens may also act under
Report R47060, Overview of Federal Hate Crime Laws, by
color of law, such as when engaged in a typical
Peter G. Berris. Other relevant CRS products include CRS
governmental function or acting in conjunction with
Report R46318, Federal Data on Hate Crimes in the United
government personnel.
States, by Nathan James and Emily J. Hanson; and CRS In
Focus IF11312, Department of Justice’s Role in
18 U.S.C. § 245, Interference with Federally
Investigating and Prosecuting Hate Crimes, by Nathan
Protected Rights
James.
18 U.S.C. § 245 contains several often-overlapping
subsections. One notable provision, § 245(b)(2), prohibits
Key Term: “Because Of”
willfully injuring, intimidating, or interfering with
another—or attempting to do so—by force or threat of force
Many federal hate crime provisions apply only if the defendant
because of the victim’s race, color, religion, or national
acts because of a protected characteristic of the victim or
origin and because of the victim’s participation in certain
another person. In the federal hate crime context, “because
enumerated protected activities. The activities protected by
of” likely requires proof of but-for causation. See, e.g., United
§ 245(b)(2) include, among others, receiving public
States v. Mil er, 767 F.3d 585, 593 (6th Cir. 2014). But-for
education or enjoying public accommodations such as
causation means that Y (e.g., an assault) would not have
movie theaters and hotels. Federal prosecutors have used
occurred if not for X (e.g., the victim’s race). Burrage v.
§ 245(b)(2) to charge bias-motivated conduct, including in
United States, 571 U.S. 204, 211 (2014). A factor may be a
high-profile cases like the 2020 killing of Ahmaud Arbery.
but-for cause even if other factors combined to produce the
Another subsection (§ 245(b)(4)) also prohibits certain
relevant result, so long as the factor was necessary to the
violent conduct directed at intimidating individuals other
outcome.
than the immediate victim from engaging in enumerated
protected activities without discrimination. For instance,
federal prosecutors used this provision to convict a
18 U.S.C. § 241, Civil Rights Conspiracy
defendant who assaulted a Black man who had been driving
18 U.S.C. § 241 prohibits conspiracies to interfere with
by an anti-busing protest in Boston, in order to intimidate a
civil rights. Examples of covered rights might include the
group of people from participating, without discrimination
right to vote, or to occupy a dwelling. The federal
on account of their race, in their protected right to public
government has relied on § 241 to prosecute a variety of
education. Subsection 245(b)(5) creates additional
bias-motivated conspiracies involving conduct such as
protections for individuals who are assisting others in some
vandalism, assault, and murder. Conviction under § 241
way to participate in protected activities without
requires the government to show an agreement between two
discrimination. For example, in one case, the government
or more persons. The government must also prove that the
used § 245(b)(5) in a prosecution stemming from an attack
purpose of the agreement was to injure, threaten, oppress,
on the home of an NAACP chapter president intended to
or intimidate. A range of violent and destructive conduct
discourage NAACP’s efforts to improve housing and
may qualify, as can threatening conduct like cross burning
employment opportunities for Black people. Both
(subject to First Amendment limitations).
§ 245(b)(4) and § 245(b)(5) protect all the activities that fall
under § 245(b)(2), as well as additional ones such as voting
18 U.S.C. § 242, Deprivation of Rights Under Color
and participating in federal jury service.
of Law
Among other things, 18 U.S.C. § 242 criminalizes the
42 U.S.C. § 3631, Interference with Fair Housing
willful deprivation of civil rights under color of law.
The provisions of 42 U.S.C. § 3631 largely mirror 18
Section 242 has been used to prosecute bias-motivated
U.S.C. § 245, except that § 3631 specifically prohibits
crimes such as the murder of civil rights workers by state
willful use of force to interfere with federal housing rights
law enforcement. The Department of Justice (DOJ) also
such as selling, renting, buying, or occupying a dwelling. In
used § 242 to charge officers involved in the 2020 killings
addition, § 3631 protects a more expansive list of
of Breonna Taylor and George Floyd. Unlike § 241, § 242
characteristics than § 245: race, color, religion, sex,
does not require proof of conspiracy and therefore can
“handicap,” familial status, and national origin. Prosecutors
reach individuals acting alone. However, § 242 applies only
have used § 3631 to charge incidents such as a conspiracy
to action taken “under color of law.” Official authorization
https://crsreports.congress.gov

Hate Crimes: Key Federal Statutes
to hang a noose outside the home of a family from Africa
“actual or perceived race, color, religion, or national origin
and a racially motivated armed home invasion.
of any person.” Alternatively, § 249(a)(2) criminalizes
conduct committed because of the “religion, national origin,
18 U.S.C. § 247, Damage to Religious Property or
gender, sexual orientation, gender identity, or disability of
Obstruction of Free Exercise
any person” if an additional jurisdictional requirement is
18 U.S.C. § 247 prohibits two different categories of
met that § 249(a)(1) does not require: that the conduct at
conduct. The first category encompasses intentional
issue implicates interstate or foreign commerce. Section
damage to religious real property, which includes religious
249(a)(2) outlines ways in which that requirement may be
buildings and grounds as well as the fixtures and objects
met, such as where the conduct results from the defendant
they contain. Under § 247(a)(1), intentional damage of
or victim traveling across a state line or national border.
religious real property is a crime when committed because
Section 249 has been used to prosecute a range of crimes
of the religious character of that property, if the conduct
with discriminatory motives, including a racially motivated
affects interstate or foreign commerce. Section 247(c)
kidnapping and an assault motivated by sexual orientation
prohibits intentionally damaging religious real property
bias. Federal prosecutors have also invoked § 249 in high-
because of the race, color, or ethnic characteristics of any
profile cases such as the fatal shooting at the Tree of Life
individual associated with that religious property.
Synagogue in Pittsburgh, PA, in 2018.
Prosecutors have used these provisions to charge bombings,
vandalism, and arson of religious properties. The second
In 2022, Congress enacted the Emmett Till Antilynching
category of covered conduct—under § 247(a)(2)—
Act, which added two new subsections criminalizing
criminalizes intentional obstruction by actual or threatened
conspiracies to violate § 249. With the provisions, federal
force of any person’s enjoyment of the free exercise of
prosecutors now have at least four statutory options for
religious beliefs, when the obstruction is in or affects
charging hate crime conspiracies, including 18 U.S.C. § 241
interstate or foreign commerce. Prosecutors have used this
(discussed above) or the general federal conspiracy statute,
subsection to charge conduct such as the fatal 2015
18 U.S.C. § 371 (discussed in detail in CRS Report
shooting at Emanuel African Methodist Episcopal Church
R41223, Federal Conspiracy Law: A Brief Overview, by
in Charleston, SC.
Charles Doyle).
Key Concept: Constitutional Authority
Key Language: “Actual or Perceived” and
Congress enacts federal hate crime statutes using “one or
“Any Person”
more of its powers enumerated in the Constitution.” United
Section 249’s provisions apply if the defendant’s conduct
States v. Morrison, 529 U.S. 598, 607 (2000). Section 247
occurs because of an actual or perceived covered characteristic
offers an example of how this can work in the hate crime
of any person. The use of “actual or perceived” permits § 249
context. Subsection 247(c) applies only when the conduct
prosecution where a defendant is motivated by a specific
occurs because of the race, color, or ethnic characteristics of
characteristic such as religion, but is mistaken about that
any individual associated with the targeted property. This
characteristic. For example, DOJ once used § 249 to
requirement not only captures the defendant’s motivations,
prosecute a man for attacking a victim he mistakenly
but also connects the prohibited conduct to a source of
perceived to be Jewish. The use of “any person,” meanwhile,
constitutional authority—namely, Congress’s Thirteenth
means that § 249 can reach instances where an individual’s
Amendment authority to legislatively eliminate badges and
conduct occurs because of specific characteristics of someone
incidents of slavery such as racial discrimination. However,
other than the victim. This could occur, for instance, where a
§§ 247(a)(1)-(a)(2) protect interests that potentially lie beyond
defendant is motivated by the race or other protected
Congress’s Thirteenth Amendment authority. Congress
characteristic of one person, but actually attacks another
therefore limited covered conduct to instances implicating
person who does not possess the relevant characteristic—
interstate or foreign commerce—tethering the provisions to
such as a bystander or an acquaintance.
Congress’s power under the Constitution’s Commerce
Clause. Congress may premise hate crime provisions on
multiple sources of constitutional authority, including others
Penalties Under Federal Hate Crime
in the Fourteenth and Fifteenth Amendments, for instance.
Statutes
For more information on sources of constitutional authority,
Those convicted of violating federal hate crime statutes face
see generally CRS Report R45323, Federalism-Based Limitations
fines, imprisonment, or both. The maximum authorized
on Congressional Power: An Overview, coordinated by Kevin J.
penalties increase where the defendant’s conduct results in
Hickey.
particular harms such as bodily injury or death. Most of the
federal hate crime statutes authorize the death penalty in
some situations, although 18 U.S.C. § 249 and 42 U.S.C.
18 U.S.C. § 249, Matthew Shepard and James Byrd
§ 3631 do not. A tabular summary of federal hate crime
Jr. Hate Crimes Prevention Act of 2009
penalties is available in CRS Report R47060, Overview of
Generally, 18 U.S.C. § 249 makes it a crime to “willfully
Federal Hate Crime Laws, by Peter G. Berris.
cause[] bodily injury to any person or, through the use of ...
a dangerous weapon,” attempt to “cause bodily injury to
Peter G. Berris, Legislative Attorney
any person” because of specific characteristics. Section
IF12333
249(a)(1) prohibits conduct committed because of the

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Hate Crimes: Key Federal Statutes

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