Hate Crime Legislation
William J. Krouse
Specialist in Domestic Security and Crime Policy
November 29, 2010
Congressional Research Service
7-5700
www.crs.gov
RL33403
CRS Report for Congress
P
repared for Members and Committees of Congress
Hate Crime Legislation
Summary
On October 28, 2009, President Barack Obama signed the Matthew Shepard and James Byrd, Jr.
Hate Crimes Prevention Act into law, as Division E of the National Defense Authorization Act for
Fiscal Year 2010 (P.L. 111-84; H.R. 2647). This law broadens federal jurisdiction over hate
crimes by authorizing the Attorney General to provide assistance, when requested by a state,
local, or tribal official, for crimes that (1) would constitute a violent crime under federal law or a
felony under state or tribal law, and (2) are motivated by the victim’s actual or perceived race,
color, religion, national origin, gender, sexual orientation, gender identity, or disability. In other
words, hate crimes are traditional crimes during which the offender is motivated by one or more
biases considered to be particularly reprehensible and damaging to society as a whole. Prior to
enactment, however, hate crimes
were not separate and distinct offenses under federal law.
Furthermore, federal jurisdiction over hate crime was limited to certain civil rights offenses.
Although there is a consensus that hate crime is deplorable, determining the definitive federal role
in addressing hate crime has proved contentious, as reflected in the legislative history and
congressional debate. Legislation to widen federal jurisdiction over hate crime was passed by the
Senate in the 106th and 108th Congresses, by the House in the 109th Congress, and by both
chambers in the 110th Congress. Opponents of hate crime legislation view separate federal
offenses for hate crime as redundant and largely symbolic, arguing that separate hate crime
offenses would be in addition to the legal prohibitions for traditional crime that already exist
under either federal or state law. They also contend that in most cases the federal nexus is
tenuous, and that such offenses are best handled at the state and local level. Proponents for
creating a separate and distinct federal offense for hate crime maintain that there is a fundamental
difference between ordinary crime and hate crime. They believe that hate crimes are often
perpetrated to send a message of threat and intimidation to a wider group, and that the effects of
hate crime extend beyond the particular victim and reflect more pervasive patterns of
discrimination on the basis of race, color, religion, national origin, and other characteristics.
In the 111th Congress, the House Judiciary Committee amended and ordered reported a hate
crimes bill (H.R. 1913; H.Rept. 111-86) on April 23, 2009. The House passed H.R. 1913 on April
29, 2009. Senator Reid, for Senator Kennedy, introduced the Matthew Shepard Hate Crimes
Prevention Act (S. 909) on April 28, 2009. Senator Leahy successfully amended the National
Defense Authorization Act (S. 1390) with language that is similar to S. 909 on July 16, 2009. The
Senate passed S. 1390, amended, on July 23, 2009. The hate crime provisions were included in
the conference report on the National Defense Authorization Act for Fiscal Year 2010 (H.R. 2647;
H.Rept. 111-288). The House passed the conference report on H.R. 2647 on October 7, 2009; the
Senate passed it on October 22, 2009.
In addition, Representative Sheila Jackson-Lee has introduced three hate crime-related bills (H.R.
70, H.R. 256, and H.R. 262), and Representative Maloney has introduced a hate crime statistics
act (H.R. 823). At issue for Congress is whether the prevalence and harmfulness of hate crimes
warrant greater federal intervention to ensure that such crimes are systematically addressed at all
levels of government. Another related issue is the completeness and comprehensiveness of
national hate crime data. Representative Eddie Bernice Johnson introduced (H.R. 3419), which
would amend the Hate Crime Statistics Act to require data collection on crimes committed against
homeless persons. Senator Benjamin Cardin introduced an identical bill (S. 1765). On several
occasions, the Senate Judiciary Committee was scheduled to mark up this bill during the 111th
Congress, but consideration of this bill was postponed.
Congressional Research Service
Hate Crime Legislation
Contents
Most Recent Developments......................................................................................................... 1
Introduction ................................................................................................................................ 1
Overview of the Hate Crime Debate...................................................................................... 2
Historical Evolution of Hate Crime Policy and Legislation.......................................................... 2
Early Civil Rights Movement ................................................................................................ 3
Second Wave of Civil Rights Movements.............................................................................. 4
Anti-Hate Crime Movement .................................................................................................. 4
ADL Model Legislation .................................................................................................. 4
Establishing Baseline Hate Crime Statistics..................................................................... 5
Gender ............................................................................................................................ 5
Sexual Orientation and Gender Identity........................................................................... 5
Hate Crime and Federal Law Prior to P.L. 111-84........................................................................ 6
Federal Civil Rights Statutes and Hate Crime ........................................................................ 7
Hate Crime Statistics Act ...................................................................................................... 8
Hate Crime Sentencing Enhancements .................................................................................. 9
Violence Against Women Act ................................................................................................ 9
Church Arson Prevention Act ................................................................................................ 9
U.S. Armed Forces and Hate Crime Prevention ................................................................... 10
Federal Hate Crime Funding ............................................................................................... 10
Federal Grants for Hate Crime Prevention Education..................................................... 10
VAWA Domestic and Sexual Abuse Programs ............................................................... 10
State and Local Law Enforcement Assistance ................................................................ 10
Federal Hate Crime Statistics .................................................................................................... 11
FBI Uniform Crime Reports (UCR) and Hate Crime ........................................................... 11
BJS Hate Crime Victimization Statistics .............................................................................. 13
Reporting Hate Crime: Complications and Shortcomings .................................................... 14
NBIRS Hate Crime Statistics and Juveniles ......................................................................... 16
Hate Crime Bills in the 111th Congress ...................................................................................... 17
Local Law Enforcement Hate Crimes Prevention Act of 2009 (H.R. 1913) .......................... 17
Matthew Shepard Hate Crimes Prevention Act (S. 909)....................................................... 17
Amendments to the FY2010 Defense Authorization Act (S. 1390)....................................... 18
Conference Report on the National Defense Authorization Act for Fiscal Year 2010
(P.L. 111-84; H.R. 2647) .................................................................................................. 19
Noose Hate Crime Act of 2009 (H.R. 70) ............................................................................ 20
David Ray Hate Crime Prevention Act of 2009 (H.R. 256) .................................................. 20
David Ray Ritcheson Hate Crime Prevention Act (H.R. 262)............................................... 21
Hate Crime Statistics Improvement Act of 2009 (H.R. 823)................................................. 21
Hate Crimes Against the Homeless Statistics Act of 2009 (H.R. 3419/S. 1765) .................... 21
Hate Crime Legislative Action the 110th Congress ..................................................................... 21
Local Law Enforcement Hate Crimes Prevention Act of 2007 (H.R. 1592) .......................... 21
Local Law Enforcement Enhancement Act 2007 (S. 1105) .................................................. 23
Amendments to the FY2008 Defense Authorization Act (H.R. 1585)................................... 23
Hate Crime Legislative Action in the 107th through 109th Congresses ........................................ 23
Congressional Research Service
Hate Crime Legislation
Tables
Table 1. Fifteen-Year Hate Crime Summary .............................................................................. 12
Contacts
Author Contact Information ...................................................................................................... 25
Congressional Research Service
Hate Crime Legislation
Most Recent Developments
On October 28, 2009, President Barack Obama signed the Matthew Shepard and James Byrd, Jr.
Hate Crimes Prevention Act into law, as Division E of the National Defense Authorization Act for
Fiscal Year 2010 (P.L. 111-84; H.R. 2647). This law broadens federal jurisdiction over hate
crimes by authorizing the Attorney General to provide assistance, when requested by a state,
local, or tribal official, for crimes that (1) would constitute a violent crime under federal law or a
felony under state or tribal law, and (2) are motivated by the victim’s actual or perceived race,
color, religion, national origin, gender, sexual orientation, gender identity, or disability.
On several occasions during the 111th Congress, the Senate Judiciary Committee was scheduled to
mark up a bill (S. 1765) that would amend the Hate Crimes Statistics Act to require data
collection on hate crimes committed against homeless persons. Committee consideration of this
bill was postponed, however.
Introduction
Prior to enactment of P.L. 111-84, federal jurisdiction over hate crimes was limited to
investigating and prosecuting certain civil rights offenses considered “hate crimes,” when it was
determined that the offender was motivated by a bias against race, color, religion, national origin,
or, in limited instances, disability.1 Those civil rights violations were and continue to be
considered “hate crimes” when it is determined that the offender is motivated by a bias against
race, color, religion, national origin, or, in limited instances, disability.2 For bias-motivated
offenses, there were and continue to be enhanced penalties potentially available under federal law.
With the passage of P.L. 111-84, Congress has expanded federal coverage over hate crimes under
two additional scenarios.3 First, under any circumstance, it prohibits willfully inflicting bodily
injury to any person, attempted or otherwise, through the use of fire, a firearm, an explosive, or an
incendiary device if such conduct is motivated on the basis of the victim’s actual or perceived
race, color, religion, or national origin. Second, it prohibits the same conduct if such conduct is
motivated on the basis of the victim’s religion, national origin, gender, sexual orientation, gender
identity, or disability. The reach of the second offense, however, extends to specific jurisdictional
ties to the interstate Commerce Clause of the U.S. Constitution.
This report provides an overview of the hate crime debate, with background on current law and
hate crime statistics, and a legislative history of hate crime prevention bills in recent Congresses.
This report does not analyze the constitutional or other legal issues that often arise as part of the
hate crime debate.4
1 U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Assistance,
A Policymaker’s Guide to Hate
Crimes, NCJ 162304, March 1997, p. 8.
2 Ibid.
3 18 U.S.C. §249.
4 For such an analysis, see CRS Report RS22812,
Constitutional Limits on Hate Crime Legislation, by Alison M.
Smith. In addition, incidents have been reported in the national press where hangman’s nooses were displayed in an
apparent attempt to intimidate students, faculty, and a police officer. (See Darryl Fears, “In Jena and Beyond, Nooses
Return as a Symbol of Hate,”
Washington Post, October 20, 2007, p. A01.) While it is not explicitly a federal crime to
(continued...)
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Overview of the Hate Crime Debate
Proponents of creating a separate and distinct federal offense for hate crime have maintained that
there is a fundamental difference between ordinary crime and hate crime. They contend that hate
crime is often perpetrated to send a message of threat and intimidation to a wider group.
Furthermore, they argue that the effects of hate crime extend beyond the particular victim and
reflect more pervasive patterns of discrimination on the basis of race, color, religion, national
origin, and other characteristics. In addition, proponents argue that those characteristics, whether
real or perceived, identify an individual as belonging to a group that has been marked for
persecution and discrimination in the past, and that to tolerate any further persecution and
discrimination on such counts, as manifested in either crimes against persons or property, is no
longer acceptable.
Opponents of creating a separate and distinct federal offense for hate crime have often countered
that the victim of any crime suffers regardless of the offender’s motive. They claim that the
perpetrator of an assault in the course of an armed robbery should be punished no less vigorously,
no matter what his motivation might have been. They also maintain that the public interest would
be better served if law enforcement efforts were to address crime across-the-board, rather than
focusing on an offender’s motives. In addition, opponents view a separate federal offense for hate
crime as redundant and largely symbolic, asserting that a separate hate crime offense would be in
addition to the legal prohibitions for traditional crime that already exist under either federal or
state law. Moreover, they argue that the federal nexus is tenuous, and that such offenses should be
handled at the state and local level.
Historical Evolution of Hate Crime Policy
and Legislation5
Social scientists view modern hate crime policy in the United States as having evolved, in part,
out of the civil rights movement that began in the mid-1950s.6 Although the initial focus of the
civil rights movement was on promoting the legal, social, and economic status of African
Americans, it soon expanded to include other racial and ethnic minorities in the 1960s.7 Through
nonviolent protest and other forms of political activism, these “rights-based movements”
coalesced to expand civil rights and reduce violence directed at minorities.8
(...continued)
display such symbols of intimidation, it is a crime in some states to do so. For further information, see CRS Report
RL34200,
Burning Crosses, Hangman’s Nooses, and the Like: State Statutes That Proscribe the Use of Symbols of
Fear and Violence with the Intent to Threaten, by Kathleen Ann Ruane and Charles Doyle.
5 Janice Cheryl Beaver contributed to portions of this section.
6 Valerie Jenness and Kendal Broad,
Hate Crimes: New Social Movements and the Politics of Violence (New York:
Aldine De Gruyter, 1997), p. 23. (Hereafter cited as Jenness and Broad,
Hate Crimes.)
7 Ibid., p. 24.
8 Valerie Jenness and Ryken Grattet,
Making Hate Crime a Crime: From Social Movement to Law Enforcement (New
York: American Sociological Association, Rose Series in Sociology, 2001), p. 26. (Hereafter cited as Jenness and
Grattet,
Making Hate Crime a Crime.)
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By the 1970s, the contemporary women’s rights movement and the gay and lesbian rights
movement constituted what some experts have termed the “second-wave civil rights
movements.”9 In addition, the crime victims’ movement emerged as part of the women’s rights
movement.10 According to social scientists, by the 1980s, support from both the wider civil rights
movement and the crime victims’ movement provided the broad constituent base that proved
critical to the formation of the early anti-hate crime movement.11 Even within the anti-hate crime
movement, however, defining what constituted a hate crime and who would be protected against
such crimes proved a matter of controversy.12
Early Civil Rights Movement
In the not so distant past, some types of bias-motivated violence were in whole or part sanctioned
by governments. Federal and state statutes that once legalized slavery loom large as examples of
state-sanctioned violence in the United States. Under these laws, Africans and their descendants
were subject to acts that resulted in millions of deaths and abuses, including beatings, rape,
torture, branding, forced separation of families, trafficking in human beings, and exploitation.13
Although slavery was ended, following Reconstruction, southern states adopted comprehensive
segregation laws known as “Jim Crow” laws. These laws, which were upheld by the Supreme
Court, effectively institutionalized post-slavery forms of violence and hate against African
Americans from the 1870s to the 1960s.14
With the civil rights movement in the 1950s and 1960s, the struggle to address Jim Crow laws
and other forms of discrimination was pioneered by the National Association for the
Advancement of Colored People (NAACP) and Southern Christian Leadership Conference
(SCLC).15 Under the leadership of Dr. Martin Luther King Jr. and others, the United States made
great strides in addressing social injustices associated with the residual effects of slavery and
other forms of institutionalized discrimination that were contrary to the principle of “equal justice
for all” as set out in the U.S. Constitution.16 Other disadvantaged groups were influenced by the
early civil rights movement, particularly the success of the NAACP and SCLC.17 Based on those
models, in part, and the principle of nonviolent protest, minority groups mobilized by organizing
themselves into nongovernmental organizations and advocacy groups.18
9 See Ryken Grattet and Valerie Jenness, “The Birth and Maturation of Hate Crime Policy in the United States,” in
Barbara Perry ed.,
Hate and Bias Crime: A Reader (New York: Routledge, 2003), p. 392.
10 Terry A. Maroney, “The Struggle Against Hate Crime Movement at a Crossroads,”
New York University Law
Review, vol 73 (May 1998), pp. 574-575. (Hereafter cited as Maroney, “The Struggle Against Hate Crime.”)
11 Jenness and Grattet,
Making Hate Crime a Crime, p. 27.
12 James B. Jacobs and Kimberly Potter,
Hate Crimes: Criminal Law & Identity Politics (Oxford University Press,
1998), p. 72. (Hereafter cited as Jacobs and Potter,
Hate Crimes.)
13 See David Eltis,
The Rise of African Slavery in the Americas (Cambridge: Cambridge University Press, 2000).
14 Richard Wormser,
The Rise and Fall of Jim Crow: The African-American Struggle Against Discrimination, 1865-
1954 (New York: Franklin Watts, 1999).
15 Gilbert Jonas,
Freedom’s Sword: the NAACP and the Struggle Against Racism in America, 1909-1969 (New York,
NY: Routledge, 2005). Also, see Harvard Sitkoff,
The Struggle for Black Equality, 1954-1992 (New York: Hill and
Wang, 1981).
16 Taylor Branch,
Parting the Waters: America in the King Years, 1954-63 (New York: Simon and Schuster, 1988).
17 Jenness and Grattet,
Making Hate Crime a Crime, p. 24.
18 Ibid., p. 26.
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Second Wave of Civil Rights Movements
As part of the “second wave of civil rights movements,” the women’s rights movement and the
gay and lesbian rights movement emerged in the 1970s out of the wider civil rights movement.19
Particularly in the women’s rights movement, the issue of the rights of victims of violent crime
became an important issue, as crime victims and their advocates voiced concern about the
“secondary victimization” of victims of rape and domestic abuse.20 Secondary victimization is a
term used to refer to the psychological trauma suffered by crime victims at the hands of the
criminal justice system.21 In particular, the crime victims’ movement was critical of the Warren
Supreme Court for expanding defendants’ rights in criminal cases.22 Advocates for greater crime
victims’ rights asserted that in many cases the perpetrators of crime were inadequately punished
and victims were inadequately protected.23 According to social scientists who have studied the
hate crime movement, the crime victims’ rights movement lent impetus and considerable support
to the anti-hate crime movement.24
Anti-Hate Crime Movement
The convergence of the civil rights movement, the women’s movement, the gay and lesbian
movements, and the crime victims’ movement created an environment that was open to a wider
public discourse about how violence manifests itself as discrimination brought on by deep-seated
social biases.25 Out of this wider public discourse, the anti-hate crime movement emerged, calling
attention to “hate crime” as a societal problem, which—in the view of the movement—warranted
greater legislative intervention at either the state or federal level, or both.26
ADL Model Legislation
By 1981, the Anti-Defamation League of B’nai B’rith (ADL) had developed proposed model hate
crime legislation, and advocates for tougher laws targeting “hate crime” began lobbying state and
federal legislators.27 This model legislation consisted of five proposals that addressed vandalism
directed at religious institutions, intimidation, a civil action for both types of crime, data
collection, and police training.28 Based on one or more elements of this model legislation, more
than half the states had enacted hate crime legislation by 1994.29
19 Ryken Grattet and Valerie Jenness. “The Birth and Maturation of Hate Crime Policy in the United States,” in Barbara
Perry ed.,
Hate and Bias Crime: A Reader (New York: Routledge, 2003), p. 392.
20 Jenness and Grattet,
Making Hate Crime a Crime, p. 27.
21 Ibid.
22 Maroney, “The Struggle Against Hate Crime,” pp. 574-575.
23 Jenness and Grattet,
Making Hate Crime a Crime, p. 27.
24 Ibid., p. 28.
25 Ibid., p. 30.
26 Maroney, “The Struggle Against Hate Crime,” p. 580.
27 Jenness and Broad,
Hate Crimes, p. 32.
28 See discussion of model legislation at http://www.adl.org/99hatecrime/text_legis.asp.
29 Jenness and Broad,
Hate Crimes, p. 40.
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Establishing Baseline Hate Crime Statistics
Since 1981, civil rights advocacy groups, including the Southern Poverty Law Center (SPLC), the
ADL, the Coalition on Hate Crimes Prevention, and the Klanwatch Project, called for the
collection of national hate crime statistics.30 At that time, there was no national source or
mechanism for collecting hate crime data. Although some states collected such data,
characterizing hate crimes accurately, or determining the extent of hate crimes nationally, was
difficult, if not impossible. Nonetheless, civil rights advocates maintained that such data would
(1) provide an empirical basis from which to shape public policy, (2) raise the consciousness of
reporting law enforcement agencies, and (3) stimulate local prevention strategies, more effective
responses, and greater sensitivity to the specific needs of hate crime victims.31 Although hate
crime proposals initially included categories of protected classes that were limited to race,
religion, and ethnicity, the scope of those provisions were later expanded to include sexual
orientation and gender.
Gender
Within the ranks of hate crime legislation supporters, the inclusion of gender under the hate crime
statistics legislation proved contentious. For example, anti-gender bias-motivated crime was not
included as a hate crime by the Coalition on Hate Crimes Prevention, one of the leading advocacy
groups.32 The coalition noted that statistics on domestic violence and rape were already being
collected.33 In many of these crimes, they pointed out the offenders were acquaintances of the
victims.34 They maintained that hate crime involved attacks on victims because of their
membership in a group, not because of their individual identities.35 Women’s advocates countered
that many crimes against women are committed by persons other than acquaintances, and that
such crimes are often motivated by the offender’s irrational fear and hatred of women.36 And,
even if the offender was an acquaintance, violent crimes against women often involve an element
of misogyny.37
Some observers have noted that the coalition’s opposition to inclusion of anti-gender bias under
the definition of “hate crime” was likely based on the notion that, if it were included, other types
of hate crime would be washed out by the prevalence and sheer volume of anti-gender bias
motivated crime (misogynistic violence) against women.38
Sexual Orientation and Gender Identity
Legislative proposals have also included “sexual orientation” and “gender identity” as
characteristics, for which certain violent crimes would be considered a “hate crime” if it could be
30 Ibid., p. 38.
31 Ibid., p. 38.
32 Jacobs and Potter,
Hate Crimes, p. 72.
33 Ibid., p. 72.
34 Ibid.
35 Ibid.
36 Ibid., p. 73.
37 Ibid.
38 Ibid.
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shown that the perpetrators were motivated by an animus for their victims for reasons related to
those characteristics. Issues related to sexual orientation and gender identity often overlap, but the
characteristics are conceptually distinct. While sexual orientation speaks to an individual’s sexual
desire, gender identity speaks to an individual’s gender expression.39 “Gender identity” has been
defined as a person’s internal, deeply felt sense of being male or female, which is not always
congruous with their biological sex.40 Nevertheless, gender identity was largely subsumed under
the debate over sexual orientation and hate crime during the 1980s.41
The inclusion of sexual orientation as a characteristic under proposed legislation generated
considerable debate during the 1980s in congressional hearings on anti-gay and -lesbian violence
and during legislative debates leading to the Hate Crime Statistics Act.42 Those debates often
focused on the question of whether sexual orientation should be considered an ascribed and
immutable characteristic like race or ethnicity, or a matter of individual choice. In some cases,
those favoring the inclusion of sexual orientation as a category for which hate crime statistics
should be gathered held the former view, whereas those opposing such proposals often held the
latter view.
It has been argued that “transgender” persons—those who do not meet gender-based expectations
or engage in gender variant behavior—are inordinately victimized by violent criminals for their
nonconformity.43 As described below, Congress passed hate crime statistics legislation in 1990
and an amendment thereto in 1994. While sexual orientation was included as a
category/characteristic for which federal hate crime data would be gathered, gender identity was
not. In addition, neither characteristic is currently included as a protected category under federal
civil rights statutes. Federal authorities, consequently, have no jurisdiction over bias-motivated
crimes directed toward individuals because of their sexual orientation or gender identity.
Hate Crime and Federal Law Prior to P.L. 111-84
The term “hate crime” became prevalent during the 1980s, when there appeared to be an upward
trend in violent crimes committed against persons for reasons related to their race, religion, sexual
orientation, ethnicity, and other characteristics.44 Hate crime statistics, however, were not
39 Paisley Currah and Shannon Minter,
Transgender Equality—A Policy Handbook for Activists and Policy Makers,
(National Center for Lesbian Rights and National Lesbian and Gay Task Force, June 2000), as cited in Samantha J.
Levy, “Trans-forming Notions of Equal Protection: The Gender Identity Class,”
Temple Political & Civil Rights Law
Review, Fall 2002.
40 Ibid.
41 Carey Goldberg, “Shunning ‘He’ and ‘She,’ They Fight for Respect,”
New York Times, September 8, 1996.
42 See U.S. Congress, House Committee on the Judiciary, Subcommittee on Criminal Justice,
Anti-gay Violence,
hearings, 99th Cong., 2nd sess., October 9, 1986; U.S. Congress, House Committee on the Judiciary,
Hate Crimes
Statistics Act, report, 100th Cong., 2nd sess., April 20, 1988;
Congressional Record, vol. 134 no. 70 (May 18, 1988), p.
H 3373;
Congressional Record, vol. 135 no 87 (June 27, 1989), p. H 3179.
43 One such case was dramatized in the 1999 movie entitled “Boys Don’t Cry,” which was based upon the murder of
Brandon Teena. Born a female physiologically, Teena was living as a man in the early 1990s. Upon discovering this,
two acquaintances assaulted and raped Teena on December 24-25, 1993. Teena reported the crimes to a Nebraska
sheriff’s department and the assailants were interviewed, but no arrest warrants were issued. Teena was subsequently
murdered by one or both of his assailants on December 30, 1993.
44 U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Assistance,
A Policymaker’s Guide to Hate
Crimes, NCJ 162304 (March 1997), p. 1.
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collected nationally. Consequently, it was unknown whether hate crime was increasing, remaining
the same, or decreasing. Nevertheless, the perception that bias crime was on the rise was reflected
in the effectiveness of the anti-hate crime movement,45 and many states were prompted to enact
legislation against hate crimes.46
Congress responded by considering several proposals that addressed hate crime, and it passed
legislation that (1) required the Attorney General to capture hate crime statistics annually; (2)
increased penalties for certain civil rights offenses that were determined to be bias-motivated; and
(3) expanded federal jurisdiction over the arson, destruction, or vandalism of religious property,
as well as violent interference with an individual’s right to exercise religious freedom. Also,
Congress attached hate crime-related provisions to other pieces of legislation, such as the FY1997
Defense Authorization Act and the No Child Left Behind Act of 2001. Furthermore, Congress
appropriated funding for anti-hate crime training.
Federal Civil Rights Statutes and Hate Crime
Enacted as part of the Civil Rights Act of 1968, section 245 of Title 18 of the United States Code
(U.S.C.) prohibits interference with certain “federally protected activities.” Specifically, it
prohibits the use of force, or threat of force, to injure, intimidate, or interfere with any person for
reasons related to their race, color, religion, or national origin while they are engaged in one of
six listed protected activities. Those federally protected activities include
• enrolling in or attending a public school or college;
• participating in or enjoying a service, program, facility, or activity provided or
administered by any state or local government;
• applying for or enjoying employment;
• serving in a state court as a grand or petit juror;
• traveling in or using a facility of interstate commerce; and
• enjoying the goods and services of certain places of public accommodation.
Other civil rights statutes provide protection as well. According to the Federal Bureau of
Investigation (FBI), its jurisdiction over hate crimes is primarily predicated on section 245 and
the following three statutes:
45 See generally James B. Jacobs and Kimberly Potter.
Hate Crimes: Criminal Law & Identity Politics (Oxford
University Press: 1998). Also Maroney, p. 580.
46 High-profile incidents raised national consciousness about hate crime. Two of those crimes included the 1984
shooting death of Alan Berg, a Denver radio talk show host, and the 1986 beating of three African-American youth that
resulted in the death of one of those youth, in the Howard Beach neighborhood of Queens in New York City. Similar
crimes preceded enactment of the Hate Crimes Statistics Act (P.L. 101-275). Later in the mid-1990s, the racially
motivated 1995 murder of an African-American couple by three soldiers from Fort Bragg in Fayetteville, North
Carolina, as well as church burnings in Louisiana and Alabama, prompted congressional action, which led in part to the
Hate Crime Sentencing Enhancements Act (P.L. 103-322) and the Church Arson Prevention Act (P.L. 104-155).
Similarly, the brutal 1998 murders of James Byrd, because he was an African-American, in Jasper, Texas, and of
Matthew Shepard, because he was gay, outside of Laramie, Wyoming, lent increased momentum to the proposals to
create a separate and distinct hate crime offense under federal law, even though suspects in both cases were tried for
murder under state law.
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• 18 U.S.C. §241, Conspiracy Against Rights;
• 18 U.S.C. §247, Church Arson Prevention Act of 1996; and
• 42 U.S.C. §3631, Criminal Interference with Right to Fair Housing.47
The FBI notes that there is no federal jurisdiction over any crimes (civil rights-related or
otherwise) in which the offender is motivated by a bias against the victim’s sexual orientation.
Also, there is only limited federal jurisdiction over crimes motivated by a disability bias.48 In the
latter case, federal jurisdiction is limited to offenses under 42 U.S.C. §3631, pertaining to
interfering with a person’s right to fair housing.49
Hate Crime Statistics Act
Following several years of debate, Congress passed the Hate Crime Statistics Act (HCSA) in
1990.50 The act requires the Attorney General to acquire data
about crimes that manifest evidence of prejudice based on race, religion, sexual orientation,
or ethnicity, including, where appropriate, crimes of murder, non-negligent manslaughter;
forcible rape; aggravated assault, simple assault, intimidation; arson; and destruction,
damage, or vandalism of property.
In 1994, Congress amended this definition to include prejudice based on “disability” as well.51
The HCSA further requires the Attorney General to publish that data on an annual basis.52 The
Attorney General has delegated the duty for compiling hate crime statistics to the FBI as part of
the Uniform Crime Reporting (UCR) program.
As required by the HCSA, the FBI first reported hate crime statistics in 1993 for 1991.53 Although
the statistics for 1991 are considered to be preliminary and were not published in a stand-alone
report, the FBI has issued a separate hate crime report for the years 1992 through 2004.54 As
enacted, HCSA originally required that the data be collected annually for five years. Congress
amended the HCSA in 1996 (with the “Church Arson Prevention Act,” described below) and
made the data collection authorization permanent, requiring the collection of these data “for each
calendar year.”55 As discussed in greater detail below, however, collecting such data has proved
problematic.
47 See FBI, Investigative Programs, Civil Rights, Hate Crime, at http://www.fbi.gov/hq/cid/civilrights/hate.htm.
48 Ibid.
49 Ibid.
50 P.L. 101-275, 104 Stat. 140, codified at 28 U.S.C. 534 note.
51 P.L. 103-322 (Sec. 320926), 108 Stat. 2131.
52 The Church Arson Prevention Act of 1996 (P.L. 104-155, 110 Stat. 1394) made the hate crime annual data collection
and reporting requirement a permanent part of the FBI UCR program.
53 “ADL Welcomes Release of FBI Statistics on Hate Crimes,” U.S. Newswire, January 4, 1993.
54 The hate crime statistics reports for 1995 through 2004 are available at http://www.fbi.gov/ucr/ucr.htm#hate. Copies
of the hate crime statistics reports for 1992 through 1994 can be obtained by contacting the FBI Criminal Justice
Information Services (CJIS) division.
55 P.L. 104-155, 110 Stat. 1392.
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Hate Crime Sentencing Enhancements
In 1994, as part of the Violent Crime Control and Law Enforcement Act, Congress included a
provision that defined “hate crime” and directed the U.S. Sentencing Commission to promulgate
guidelines or amend existing guidelines to provide sentencing enhancements of not less than three
offense levels for hate crimes.56 The provision defines “hate crime” as
a crime in which the defendant intentionally selects a victim, or in the case of a property
crime, the property that is the object of the crime, because of the actual or perceived race,
color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any
person.57
Under this provision, such offenses must be found to be hate crimes beyond a reasonable doubt as
determined by “the finder of fact at trial.” The U.S. Sentencing Commission must ensure that
sentencing enhancements for hate crimes are reasonably consistent with other guidelines, avoid
duplicative punishments for substantially the same offense, and take into account mitigating
circumstances that might justify exceptions.58
Violence Against Women Act
Some observers, including the ADL, view the Violence Against Women Act (VAWA) as “hate
crime” legislation.59 As described above, gender is included in the definition of “hate crime”
under the Hate Crime Sentencing Act, but it is not included in the definition of “hate crime” under
the Hate Crime Statistics Act. Among other things, many VAWA provisions provide
authorizations and appropriations for law enforcement assistance programs aimed at combating
domestic and sexual abuse. In addition, Congress included a provision in this statute that would
have given victims a “private right of action” against offenders in cases of gender-related
violence.60 The Supreme Court, however, ruled that this provision was unconstitutional, as it
exceeded congressional power under both the Commerce Clause and the Fourteenth Amendment
(
United States v.
Morrison, 529 U.S. 588, 608-10 (2000)). The issues related to this case,
however, are beyond the scope of this report.61
Church Arson Prevention Act
In response to an increase in church arson incidents, Congress passed the Church Arson
Prevention Act of 1996.62 This act expands federal jurisdiction over property crime related to
incidents of arson, destruction, or vandalism of places of religious worship, and crime against
persons related to violent interference with any individual’s exercise of religious freedom.
56 P.L. 103-322 (Sec. 280003), 108 Stat. 2096, codified at 28 U.S.C. §994 note.
57 Ibid.
58 See United States Sentencing Guidelines §3A1.1.
59 P.L. 103-322, Title IV (Sec. 40001), 108 Stat. 1902.
60 42 U.S.C. §13981.
61 For further information, see CRS Report RS22812,
Constitutional Limits on Hate Crime Legislation, by Alison M.
Smith.
62 P.L. 104-155, 110 Stat. 1392, codified at 18 U.S.C. §247.
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U.S. Armed Forces and Hate Crime Prevention
In the National Defense Authorization Act for Fiscal Year 1997, Congress included a provision
requiring the Secretary of Defense to provide ongoing human relations training for armed forces
personnel that would cover “race relations, equal opportunity, opposition to gender
discrimination, and sensitivity to ‘hate group’ activity.”63 It also requires the Secretary to conduct
annual surveys on the “state of racial, ethnic, and gender issues and discrimination among
members of the Armed Forces,” and to report survey results annually to Congress.64
Federal Hate Crime Funding
Federal Grants for Hate Crime Prevention Education
In the No Child Left Behind Act of 2001, Congress included a provision authorizing the
Department of Education (ED) to issue grants designed to prevent hate crime.65 According to ED,
while no monies have been appropriated under this authorization, the Secretary of Education
allocated $1.8 million in FY1996 funding for hate crime prevention education grants under the
Safe and Drug-Free Schools and Communities Activities Grants Program.66
VAWA Domestic and Sexual Abuse Programs
As described above, VAWA provides authorizations for programs and appropriations to state,
tribal, city, and county law enforcement agencies for assistance in dealing with domestic and
sexual abuse, and other violence directed toward women and children. VAWA programs also
provide for victim services in cases involving such violence. The 109th Congress considered
legislation to reauthorize and modify existing VAWA programs, as well as establish additional
programs. For further information on VAWA, see CRS Report RL30871,
Violence Against Women
Act: History and Federal Funding, and CRS Report RS21259,
Violence Against Women Office:
Background and Current Issues, both by Garrine P. Laney.
State and Local Law Enforcement Assistance
For FY2004 and FY2005, Congress appropriated funding to provide anti-hate crime training to
state and local law enforcement agencies. This hate crime grant program is administered by
DOJ’s Office of Justice Assistance. For FY2004, Congress appropriated $989,000.67 For FY2005,
Congress appropriated $987,000.68 For FY2006, Congress provided no funding for this grant
63 Section 571 of P.L. 104-201, 110 Stat. 2532, codified at 10 U.S.C. §113 note.
64 Section 571 of P.L. 104-201, 110 Stat. 2532, codified at 10 U.S.C. §451.
65 Section 4123 of P.L. 107-110, 115 Stat. 1752, codified at 20 U.S.C. §7133.
66 U.S. Department of Education, “Safe and Drug-Free Schools and Communities Federal Activities Grants Program
(Hate Crimes Prevention); Final Priority and Inviting Applications for New Awards for Fiscal Year 1996; Notice,” 61
Federal Register 34669, July 2, 1996.
67 P.L. 108-199, 118 Stat. 56. The total amount appropriated was $1 million, however, the amount given above reflects
certain across-the-board rescissions.
68 P.L. 108-447, 118 Stat. 2864. The total amount appropriated was $1 million, however, the amount given above
reflects certain across-the-board rescissions.
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program. For FY2007, the Administration requested no funding for hate crimes training for law
enforcement.
Federal Hate Crime Statistics
As discussed above, the FBI is responsible for collecting hate crime statistics as part of its UCR
program.69 In November 2005, the FBI released its 13th annual report,
Hate Crime Statistics
2004.70 In the same month, the Bureau of Justice Statistics (BJS) also released a report,
Hate
Crime Reported by Victims and Police,71 based primarily on data gathered as part of the National
Crime Victimization Survey (NCVS).72
Although the BJS findings confirm many observations made by the FBI about hate crime on a
percentage basis, there is a considerable difference (ninefold) in the overall number of hate crime
victimizations according to the BJS, as compared to the hate crimes reported to the FBI. In
addition, a BJS-sponsored report suggested that hate crime as reflected in the UCR statistics may
be “seriously under-reported.”73 Other shortcomings also limit the usefulness of the UCR hate
crime statistics. Policymakers, for example, have been concerned about juveniles and hate crime
from the beginning of the wider public discourse on hate crime, but even today, UCR data
indicate little about the prevalence of juvenile involvement in hate crime. Nevertheless, the UCR
program remains the primary source of hate crime data, providing the only national statistical
“baseline.”
FBI Uniform Crime Reports (UCR) and Hate Crime
As part of its regular compilation of crime statistics under the UCR program, the FBI has
collected hate crime data on crime motivated by a bias against a person’s race, religion, sexual
orientation, or ethnicity/national origin since 1992 (with preliminary data for 1991), and against a
person’s disability since 1994.
69 In 1930, the Attorney General made the FBI responsible for collecting, publishing, and archiving national uniform
crime statistics for the United States. Today, the UCR program falls under the FBI’s Criminal Justice Information
Services Division. The UCR program publishes crime data in three different volumes, which cover crime in the United
States generally, hate crime specifically, and law enforcement officers killed and assaulted in the line of duty.
70 U.S. Department of Justice, Federal Bureau of Investigation,
Hate Crime Statistics 2004, November 2005, 157 pp,
available at http://www.fbi.gov/ucr/hc2004/openpage.htm. (Hereafter cited as DOJ,
Hate Crime Statistics 2004.)
71 U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics,
Hate Crime Reported by Victims
and Police, by Caroline Wolf Harlow, NCJ 209911, November 2005, 12 pp, available at http://www.ojp.usdoj.gov/bjs/
pub/pdf/hcrvp.pdf. (Hereafter cited as BJS,
Hate Crime Reported by Victims and Police.)
72 The NCVS is the principal source of national crime victimization data. Conducted annually by the BJS, the survey
includes a nationally representative sample of 42,000 households comprising 76,000 persons and yields statistically
significant data on the frequency, characteristics, and consequences of criminal victimizations in the United States. For
further information, go to http://www.ojp.usdoj.gov/bjs/cvict.htm.
73 Jack McDevitt, et al.,
Bridging the Information Disconnect in National Bias Crime Reporting, Final Report,
Northeastern University, Institute on Race and Justice, February 2003, p. 18. (Hereafter cited as McDevitt,
Bridging the
Information Disconnect.)
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Table 1. Fifteen-Year Hate Crime Summary
Agencies
Population
Agencies
Known
Year
Participating
Covered (%)
Reporting Incidentsa Offensesb Victims Offenders
1995 9,584
74%
1,560 7,947 9,895
10,469 8,433
1996 11,354
83%
1,834 8,759 10,706
11,039 8,935
1997 11,211
82%
1,732 8,049 9,861
10,255 8,474
1998 10,730
78%
1,810 7,755 9,235
9,722 7,489
1999 12,122
83%
1,815 7,876 9,301
9,802 7,271
2000 11,690
84%
1,892 8,063 9,430
9,924 7,530
2001 11,987
85%
2,106 9,730 11,451
12,020 9,239
2002 12,073
86%
1,868 7,462 8,832
9,222 7,314
2003 11,909
83%
1,967 7,489 8,715
9,100 6,934
2004 12,711
87%
2,046 7,649 9,035
9,528 7,145
2005 12,417
83%
2,037 7,163 8,380
8,804 6,804
2006 12,620
85%
2,105 7,722 9,080
9,652 7,330
2007 13,241
86%
2,025 7,624 9,006
9,535 6,965
2008 13,690
89%
2,145 7,783 9,168
9,691 6,927
2009 14,422
91%
2,034 6,604 7,789
8,336 6,225
Source: CRS presentation of FBI data taken from the annual
Hate Crime Statistics reports for 1995-2009.
a. Incidents often include multiple offenses.
b. Offenses include the number of violations for which charges were filed.
Table 1 shows that
the number of law enforcement agencies reporting on hate crimes to the FBI
has fluctuated somewhat during the 15 years covered, 1995 through 2009. Nevertheless, the trend
has generally been upward. In 2009, nearly 18,000 law enforcement agencies participated in the
UCR and 14,422 (80.2%) responded to the FBI about hate crime.74 In addition, the number of
reported hate crime incidents fluctuated between a high of 9,730 in 2001 and a low of 6,604 in
2009. The annual average across the 15 years for reported hate crime incidents is 7,845.
Of the 6,604 hate crime incidents reported to the FBI for 2009, 3,199 (48.4%) were motivated by
a racial bias; 1,303 (19.7%) by a religious bias; 1,223 (18.5%) by a sexual-orientation bias; 777
(11.8%) by an ethnicity/national origin bias; 96 (1.5%) by a disability bias; and six by multiple
biases. The number of anti-black incidents increased from 2,658 in 2007 to 2,876 in 2008, an
increase of 8.2%. The Southern Poverty Law Center suggested that this increase could be related
to the November 2008 election of President Barack Obama.75 However, anti-black incidents
decreased to 2,284 in 2009, a decrease of 20.6%.
Table 1 also shows the number of offenses, victims, and known offenders. Of the 7,789 offenses
reported for 2009, intimidations accounted for 2,158 (27.7%) offenses; and destruction, damage,
or vandalism of property combined for 2,465 (31.6%) offenses. Simple assault accounted for
1,691 (21.7%) offenses, and aggravated assault accounted for 914 (11.7%). Other forms of crime
against persons (murder, non-negligent manslaughter, forcible rape, and other) accounted for 30
offenses (0.4%). Of the eight bias-motivated murders reported for 2009, four stemmed from a
racial bias (one anti-black, two anti-white, and one anti-Native American/Native Alaskan), one
74 DOJ,
Hate Crime Statistics 2009, p. 1.
75 Southern Poverty Law Center,
Hatewatch, “Anti-Black Hate Crime Rise, Data Remains Flawed,” Heidi Beirich,
November 24, 2009.
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stemmed from sexual orientation (anti-homosexual), and one stemmed from an ethnic/national
origin bias (anti-Hispanic). Other forms of crimes against property (robbery, burglary, larceny-
theft, motor vehicle theft, arson, and other) accounted for 505 (6.5%) offenses. Crimes against
society accounted for 26 offenses (0.3%).
Of the 8,336 victimizations reported for 2009, 4,057 (48.7%) were race-based. An anti-black bias
accounted for 2,902 (34.8%) of all victims, and an anti-white bias for 668 (8.0%) offenses. An
anti-religion bias accounted for 1,575 (18.9%) victims, with an anti-Jewish bias accounting for
1,132 (13.6%) victims. An anti-sexual orientation bias accounted for 1,482 (17.8%) victims, with
an anti-male homosexual bias accounting for 817 (9.8%) victims. An anti-ethnicity/national
origin bias accounted for about 1,109 (13.3%) victims. An anti-disability bias accounted for 99
victims (1.2%).
BJS Hate Crime Victimization Statistics
Although many of the findings in the FBI and BJS reports are similar, the number of
victimizations reported in each report stand in stark contrast. For example, for a 3½-year period
(July 2000 through December 2003), BJS reported an annual average of 210,000 hate crime
victimizations. Of these victimizations, survey results indicated that victims reported them to the
police only on 92,000 occasions. For a comparable time period, 2000 through 2003, the FBI
reported 40,266 victimizations, or about 10,000 annually.76 Hence, BJS reported over nine times
the number of hate crime victimizations than were reported by state and local police to the FBI
for about the same time period. This variance, on the one hand, suggests that some state and local
police agencies may be resistant to classifying crimes as hate crimes, despite the perceptions of
victims. On the other hand, it suggests that the FBI and BJS’s methodologies for determining
whether a crime should be considered a hate crime are very different.
For example, under the NCVS definition of hate crime there must be corroborating evidence of a
bias motivation, which could include (1) the offender using derogatory language, (2) the offender
leaving hate symbols, or (3) the police confirming that a hate crime had taken place.77 The FBI
protocol for determining a hate crime appears to be more rigorous. For such determinations, the
FBI directs law enforcement agencies to consider whether several factors support a finding of
bias.78 Those factors include the following:
• Were the offender and victim of different race, religion, disability, sexual
orientation, and/or ethnicity/national origin?
• Did the offender make oral comments, written statements, or gestures, which
indicated his bias?
• Were bias-related drawings, markings, symbols, or graffiti left at the crime
scene?
• Were other objects, items, or things used that would indicate a bias?
76 For 2000 through 2003, the FBI reported over 40,266 hate crime victimizations, or an annual average of 10,067.
77 BJS,
Hate Crime Reported by Victims and Police, p. 2.
78 U.S. Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Division,
Hate
Crime Data Collection Guidelines: Uniform Crime Reporting, Revised October 1999, p. 4, available at
http://www.fbi.gov/ucr/hatecrime.pdf.
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• Is the victim a member of a racial, religious, disability, sexual orientation or
ethnic/national origin group that is overwhelmingly outnumbered by other
residents in the neighborhood where the victim lives and the incident took place?
• Was the victim visiting a neighborhood where previous hate crimes were
committed against other members of his racial, religious, disability, sexual-
orientation, or ethnic/national origin and where tensions remain high against his
group?
• Had several incidents occurred in the same locality, at or about the same time,
and the victims were all of the same race, religion, disability, sexual orientation,
or ethnicity/national origin?
• Did a substantial portion of the community where the crime occurred perceive
the incident as bias-motivated?
• Was the victim engaged in activities promoting his race, religion, disability,
sexual orientation, or ethnicity/national origin at the time of the incident?
• Did the incident coincide with a holiday or a date of particular significance
related to a race, religion, disability, sexual orientation, or ethnicity/national
origin?
• Was the offender previously involved in a similar hate crime or a hate group
member?
• Were there indicators that a hate group was involved?
• Did a historically established animosity exist between the victim’s and the
offender’s groups?
• Was the victim, although not a member of a targeted racial, religious, disability,
sexual orientation, or ethnic/national origin group, supporting the precepts of a
victim group?79
Despite improvements in collection and coverage, observers of the FBI data have long suspected
that hate crime could be under-reported.
Reporting Hate Crime: Complications and Shortcomings
Regarding under-reporting hate crime, DOJ has made some general observations. For example,
some small and rural law enforcement agencies do not have the manpower, inclination, or
expertise to report such crimes.80 Victims are often reluctant to report such crime for fear of
reprisals in some cases.81 For example, studies have cited the prevalence of non-reporting by
victims of crimes based on sexual orientation for fear of secondary victimization and concerns
about public disclosure of one’s homosexuality.82 In other cases, some agencies are reluctant to
79 U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Assistance,
A Policymaker’s Guide to Hate
Crimes, NCJ 162304, March 1997, pp. 5-6.
80 Ibid., pp. 9-10.
81 Ibid., pp. 10-11.
82 Gregory M. Herek, Jeanine C. Cogan, and J. Roy Gillis. “Victim Experiences in Hate Crimes Based on Sexual
Orientation,” in Barbara Perry ed.,
Hate and Bias Crime: A Reader (New York: Routledge, 2003), pp. 243-259.
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report such crimes for fear of the cultural, political, and economic repercussions that could result
from admitting that such problems exist in their communities.83 Differences in state hate crime
statutes have also led to differences in collection that make it difficult to compare such data from
one jurisdiction to another and weaken the overall national assessment of hate crime trends and
patterns.84
To address some of those shortcomings, the FBI has developed an anti-hate crime training
curriculum for state, tribal, and local law enforcement.85 In addition, the FBI continues to advance
its latest generation crime statistics program, the National Incident Based Reporting System
(NIBRS). Under this more comprehensive crime reporting system, the FBI endeavors to capture
additional data, including demographic characteristics for both victim and offender, that will
improve determinations as to whether a crime is bias-motivated.
As of November 2005, 29 states were certified participants in NIBRS.86 Those states were
Arizona, Arkansas, Colorado, Connecticut, Delaware, Idaho, Iowa, Kansas, Kentucky, Louisiana,
Maine, Massachusetts, Michigan, Missouri, Nebraska, New Hampshire, North Dakota, Ohio,
Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia,
West Virginia, and Wisconsin.87 Of these states, however, only eight submit all their data through
NIBRS; these were Delaware, Idaho, Iowa, South Carolina, Tennessee, Virginia, West Virginia,
and Vermont.88 As full state participation in NIBRS is far from complete, the FBI continues to
maintain the pre-existing UCR summary reporting system.
In addition, in one DOJ-sponsored study published in July 2000, Northeastern University
researchers reported that UCR hate crime statistics may not be comprehensive. Among other
things, the researchers pointed to “false zeroes” as evidence that hate crime is under-reported.89
Based on a national mail survey of law enforcement investigators in several agencies, the study’s
researchers reported that 31% of respondents (n=58) indicated that they believed their
departments had investigated hate crimes in 1997, yet their departments had reported “zero” hate
crimes to the FBI as participants in the UCR program.90 Consequently, the researchers concluded
that there was a disconnect between what line officers believed and what was reported to the FBI.
The Northeastern researchers concluded that, because of problems with under-reporting, UCR
statistics do not capture an accurate enough picture of hate crime nationally to allow for “cross-
jurisdictional comparisons or national estimates.”91
83 DOJ,
Hate Crime Statistics 2004, p. 10.
84 Rory McVeigh, et al., “Hate Crime Reporting as a Successful Social Movement Outcome,”
American Sociological
Review, vol. 68, iss. 6 (December 2003), p. 3.
85 See http://www.fbi.gov/hq/cid/civilrights/hate.htm.
86 U.S. Department of Justice, Federal Bureau of Investigation,
Crime in the United States 2004, Uniform Crime
Reports, November 2005, p. 5.
87 Ibid.
88 Ibid.
89 Jack McDevitt, et al.,
Improving the Quality of and Accuracy of Bias Crime Statistics Nationally: An Assessment of
the First Ten Years of Bias Crime Data Collection, Northeastern University, Center for Criminal Justice Policy
Research, Executive Summary, July 2000, p. 3. (Hereafter cited as McDevitt,
Improving the Quality and Accuracy of
Bias Crime Statistics Nationally.)
90 Ibid., p. 61.
91 Ibid., p. 3.
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In a follow-up study published in February 2003, the Northeastern University researchers
reiterated the previous report’s finding that there was evidence that hate crime was “seriously
under-reported” in the UCR statistics.92 Based on examining the hate crime reporting procedures
at several police departments across the United States, the researchers concluded that the FBI-
recommended two-tier reporting process was the best procedure for ensuring greater accuracy and
consistency in hate crime reporting.93 This process removes the responsibility for making the final
bias motivation determination from the responding patrol officers and gives it to a criminal
intelligence analyst or a hate crime specialist. Although the Northeastern University researchers
made other recommendations, which are beyond the scope of this report, they concluded that
because of problems with under-reporting, UCR statistics do not capture an accurate picture of
hate crime nationally.94
NBIRS Hate Crime Statistics and Juveniles
The involvement of juveniles in hate crime has been a concern for policymakers. Nevertheless,
data on juvenile victims and offenders are limited.95 For example, researchers at West Virginia
University (WVU) have provided analysis of selected NIBRS data, which could suggest that
juveniles represent a disproportionately high percentage of victims and offenders in hate crimes.96
The WVU researchers culled through 5,855 bias crime incidents reported through NIBRS for the
years 1995 through 2000.97 Of the 5,855 incidents, there were 7,070 victims and 7,566 offenders
of all ages. The victim’s age was recorded in 4,874 incidents involving crimes against persons.98
The offender’s age was recorded in 3,330 of these incidents in crimes against both persons and
property.99 For hate crime incidents in which the victims and offenders’ ages were recorded,
juveniles accounted for 26.7% (1,305) of victims and 29.1% (969) of offenders.100 However,
these hate crime cases, as selected from NIBRS, do not represent a random or representative
sample. Hence, it would not be valid to make any generalizations from those data about hate
crime nationally regarding juvenile victims or offenders.
92 Jack McDevitt, et al.,
Bridging the Information Disconnect in National Bias Crime Reporting, Final Report,
Northeastern University, Institute on Race and Justice, February 2003, p. 18.
93 Ibid., p. 91.
94 Ibid., p. 3.
95 Under the UCR program, reporting agencies record the age, sex, and race for both adult and juvenile arrestees. The
UCR program, as described above, consists of the older summary reporting system and NIBRS. Under NIBRS, more
comprehensive data is collected about crimes. For example, under NIBRS, data are collected for victims under 12 years
of age, whereas similar data are not collected under the summary reporting system.
96 James J. Nolan, III, et al.,
NIBRS Hate Crimes 1995-2000, Juvenile Victims and Offenders, available at
http://www.as.wvu.edu/~jnolan/nibrshatecrime.html.
97 It is notable, however, that during these years, 48,449 hate crime incidents in total were reported to the FBI.
Consequently, only 12% of hate crimes were reported through NIBRS.
98 James J. Nolan, III, et al.,
NIBRS Hate Crimes 1995-2000, Juvenile Victims and Offenders, available at
http://www.as.wvu.edu/~jnolan/nibrshatecrime.html.
99 Ibid.
100 Ibid.
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Hate Crime Bills in the 111th Congress
In the 111th Congress, several bills were reintroduced from the 110th Congress that address hate
crime issues. As described below, the House and Senate have passed hate crime legislation (H.R.
1913 and amendments to S. 1390). The House and Senate also passed the hate crime legislation
included as part of the FY2010 defense authorization bill (H.R. 2647), which the President has
signed into law.
On several occasions, the Senate Judiciary Committee has been scheduled to mark up S. 1765, a
bill that would require data collection on hate crimes committed against homeless persons. No
further action has been taken on this bill, however.
Local Law Enforcement Hate Crimes Prevention Act of 2009
(H.R. 1913)
On April 2, 2009, Representative Conyers, chair of the House Judiciary Committee, introduced
H.R. 1913 to broaden federal jurisdiction over hate crime. On April 22-23, 2009, the House
Judiciary Committee marked up H.R. 1913. Republicans offered several amendments, some of
which could be described as underscoring their opposition to the bill, but these amendments were
defeated along party lines.101 Among other things, opponents argued that the bill, if enacted,
might be used to prosecute religious leaders for exercising their First Amendment rights to free
speech and religion. Representative Robert Scott, Chair of the committee’s Crime, Terrorism, and
Homeland Security Subcommittee, countered that the bill would not hinder free speech or
religion and that it included language that emphasizes that the bill should not be construed as
affecting any activities protected by the Constitution. In addition, Representative Scott
successfully offered an amendment that stripped out the findings section of the bill, as well as a
section that would have amended the Hate Crime Statistics Act (HCSA) to require the collection
of data on hate crimes committed by offenders motivated by a bias against “gender or gender
identity,” and on hate crimes committed by or directed against juveniles. H.R. 1913 was nearly
identical to a bill (see H.R. 1592 below) passed by the House in the 110th Congress.
On April 27, 2009, the House Committee on the Judiciary filed the report on H.R. 1913 (H.Rept.
111-86, Part I). On April 28, the committee filed a supplemental report (H.Rept. 111-86, Part II).
The House passed this bill on April 29, 2009, by a recorded vote: 249-175 (Roll no. 223). On
April 29, 2009, the House passed H.R. 1913 by a recorded vote: 249-175 (Roll no. 233). The
provisions in H.R. 1913 were similar to those included in the Matthew Shepard and James Byrd,
Jr. Hate Crimes Prevention Act (P.L. 111-84).
Matthew Shepard Hate Crimes Prevention Act (S. 909)
On April 28, 2009, Senator Reid (for Senator Kennedy and others) introduced S. 909. On June 25,
2009, the Committee on the Judiciary held a hearing on this bill, which is similar to the House-
101 For amendment text, see Leah Nylen and Seth Stern, “House Panel Begins Lengthy Markup of Hate Crimes
Measure,” CQ Committee Coverage, April 22, 2009, available at http://www.cq.com/display.do?dockey=/cqonline/
prod/data/docs/html/committees/111/committees111-2009042200258314.html@committees&metapub=CQ-
COMMITTEEMARKUPS&searchIndex=0&seqNum=3.
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passed H.R. 1913 (described above). Unlike the House bill, the Senate bill included (1)
congressional findings; (2) a provision to explicitly extend federal jurisdiction over hate crimes to
include special maritime and territorial jurisdiction of the United States (in federal enclaves and
ships of U.S. registry); (3) a provision to amend the HCSA to require data collection on offenses
related to gender and gender identity, as well as on offenses committed by or directed against
juveniles; and (4) a seven-year statute of limitations on hate crime offenses that do not result in
death. S. 909 is also similar to language that Senator Kennedy successfully amended to the
Senate-passed FY2008 Defense Authorization bill (see H.R. 1585 below) in the 110th Congress.
The provisions in S. 909, moreover, were similar to those included in P.L. 111-84.
Amendments to the FY2010 Defense Authorization Act (S. 1390)
On July 16, 2009, Senator Leahy successfully amended S. 1390 with language (S.Amdt. 1511)
that was nearly identical to S. 909 (described above), except that the Leahy amendment included
a provision stating that courts may consider relevant evidence of speech, beliefs, or expressive
conduct to prove an element of an offence, but at the same time nothing in the bill should be
construed to prohibit constitutionally protected speech, expressive conduct, or activities. Along
these lines, Senator Leahy offered a perfecting amendment to his own amendment regarding the
First Amendment and related constitutional protections (S.Amdt. 1613), which the Senate adopted
by voice vote.
Senator Hatch offered an amendment (S.Amdt. 1611) that would have nullified the provisions of
the Leahy amendment and, in its stead, would have required GAO, in consultation with the
National Governors’ Association, to submit a report to Congress within 18 months of enactment
that analyzed certain violent crimes in 20 jurisdictions that manifest evidence of prejudice based
on race, religion, disability, sexual orientation, or ethnicity. The amendment would have required
further that half of those selected jurisdictions be those with hate crime statutes, and the other
half, those without such statutes. It would have also authorized the Attorney General, acting
through the FBI Director, to make grants of up to $100,000 to state and local governments to
assist in the investigation and prosecution of crimes motivated by an animus toward a victim
because of his membership in a particular class or group. The Senate rejected the Hatch
amendment by a recorded vote, 29-62.
Senator Brownback offered an amendment (S.Amdt. 1610) to the Leahy amendment, which was
adopted by a recorded vote, 78-13, that would prohibit the implementation of any provision of the
Leahy amendment in a manner that would violate or burden the exercise of an individual or
group’s First Amendment rights to free speech and association that were not intended to either
plan or incite violence against another individual. On July 16, 2009, the Senate adopted a motion
to invoke cloture by a yea-nay vote, 63-28 (Record Vote Number: 233), and the Leahy
amendment was adopted by unanimous consent.
On July 20, 2009, the Senate considered and passed four more amendments to S. 1390. Two of
the amendments dealt with death penalty in hate crime cases. Senator Kennedy offered an
amendment (S.Amdt. 1614) that would require the Attorney General to establish guidelines under
which federal prosecutors would seek the death penalty for hate crime offenses that involved a
“loss of life” and, in those cases, would require the Attorney General to certify with particularity
in the indictment the facts of the case that support such a judgment. Senator Sessions offered an
amendment (S.Amdt. 1615) that would authorize the use of the death penalty in hate crimes cases
if “death results from the offense.” Senator Sessions offered another amendment (S.Amdt. 1617)
that would require the Attorney General to establish guidelines under which hate crime offenses
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would be identified and prosecuted according to neutral and objective criteria. Senator Sessions
also offered an amendment (S.Amdt. 1616) that would prohibit the assault and battery of a person
on account of their military service or status as a member of the U.S. Armed Forces. The latter
amendment was adopted by a recorded vote, 92-0, whereas the former three amendments were
adopted by unanimous consent. The Senate passed S. 1390 by a recorded vote, 87-7, on July 23,
2009 (Record Vote Number: 242). The provisions in the Senate-passed S. 1390 were similar to
those included in the House-passed H.R. 1913 and P.L. 111-84.
Conference Report on the National Defense Authorization Act for
Fiscal Year 2010 (P.L. 111-84; H.R. 2647)
On October 7, 2009, conferees filed a report on the National Defense Authorization Act for Fiscal
Year 2010 (H.R. 2647; H.Rept. 111-288). Division E of H.R. 2647 included the Matthew Shepard
and James Byrd, Jr. Hate Crimes Prevention Act. With minor modifications, this bill included the
hate crime provisions previously passed by the House (H.R. 1913) and Senate (S. 1390). On
October 8, 2009, the House agreed to the report by a recorded vote: 281-146 (Roll no. 770). On
October 22, 2009, the Senate agreed to the report by a yea-nay vote: 64-35 (Record Vote Number:
326). On October 28, 2009, President Barack Obama singed the bill into law (P.L. 111-84).
This act broadens federal coverage of hate crimes under two scenarios.102 First, under any
circumstance, it prohibits willfully inflicting bodily injury to any person, attempted or otherwise,
through the use of fire, a firearm, an explosive, or an incendiary device if such conduct is
motivated on the basis of the victim’s actual or perceived race, color, religion, or national origin.
Second, it prohibits the same conduct if such conduct is motivated on the basis of the victim’s
religion, national origin, gender, sexual orientation, gender identity, or disability. The reach of the
second offense, however, extends to specific jurisdictional ties to the interstate Commerce Clause
of the U.S. Constitution. Under either scenario, offenses are punishable by 10 years of
imprisonment and a fine, or by any term up to life imprisonment if the crime resulted in the
victim’s death or involved attempted murder, kidnapping, attempted kidnapping, rape, or
attempted rape.
For hate crime cases to be prosecuted federally under these provisions, the act requires the
Attorney General, or his subordinate, to certify that pertinent state or local officials (1) were
unable or unwilling to prosecute; (2) favored federal prosecution; or (3) prosecuted the crimes,
but the investigation’s or trial’s results did not satisfy the federal interest to combat hate crimes. It
also gives the Attorney General the authority to prosecute such cases if he deems it is necessary to
secure substantial justice.
The act also authorizes the Attorney General to provide assistance (technical, forensic,
prosecutorial, or other), when requested by a state, local, or tribal official, for crimes that (1)
would constitute a violent crime under federal law or a felony under state or tribal law, and (2) are
motivated by the victim’s actual or perceived race, color, religion, national origin, gender, sexual
orientation, gender identity, or disability. It also directs the Attorney General to give priority to
crimes committed in more than one state, and to rural jurisdictions that would have difficulty
covering the extraordinary investigatory or prosecutorial expenses. To further assist state, local, or
tribal officials with the expenses related to hate crime cases, the act authorizes the Attorney
102 18 U.S.C. §249.
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General to establish a grant program. In implementing this grant program, the act requires the
Office of Justice Programs to (1) work closely with funded jurisdictions to ensure that the needs
of all interested parties are met, and (2) award grants to programs aimed at combating hate crime
committed by juvenile offenders. The act establishes certain parameters for the grant application
process and authorizes appropriations of $5 million for each of FY2010, FY2011, and FY2012.
The act also authorizes appropriations for DOJ to hire additional staff to respond to alleged
violations of the hate crime provisions described below.
In addition, the act includes other provisions that
• prohibit assault and battery against a person on account of his or her military
service or status as a member of the U.S. Armed Forces;
• define the term “state” to include the District of Columbia, Puerto Rico, and any
other territory or possession of the United States;
• define the term “gender identity” to mean actual or perceived gender-related
characteristics;
• establish a seven-year statute of limitations for hate crimes that do not result in
death;
• require the U.S. Sentencing Commission to produce a report on mandatory
minimum sentencing provisions under federal law;
• explicitly extend federal jurisdiction over hate crimes to any special maritime and
territorial jurisdiction of the United States (in federal enclaves and ships of U.S.
registry); and
• amend the Hate Crime Statistics Act to require that data are collected on offenses
related to gender and gender identity, as well as on offenses committed by or
directed against juveniles.
Noose Hate Crime Act of 2009 (H.R. 70)
On January 6, 2009, Representative Jackson-Lee introduced H.R. 70, a bill that would establish a
federal penalty for displaying nooses with the intent of intimidating any person because of his or
her race, color, religion, or national origin. The penalty under this bill would be a term of
imprisonment of not more than two years and a fine, or both. This bill was introduced in the 110th
Congress as H.R. 6777.
David Ray Hate Crime Prevention Act of 2009 (H.R. 256)
On January 7, 2009, Representative Jackson-Lee introduced H.R. 256, a bill that includes
criminal provisions similar to those described above under H.R. 1913. It also includes similar
findings and would authorize a grant program to assist state, local, and tribal governments with
hate crime cases, as well as authorize DOJ to hire additional staff to enforce hate crime statutes.
In addition, it includes a provision that would direct the U.S. Sentencing Committee to conduct a
study to determine whether it would be appropriate to adjust the sentencing guidelines for hate
crimes that involve the adult recruitment of minors to commit such offenses. This bill was
previously introduced as H.R. 254 in the 110th Congress.
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David Ray Ritcheson Hate Crime Prevention Act (H.R. 262)
On January 7, 2009, Representative Jackson-Lee introduced H.R. 262, a bill that would provide
victims of hate crime with several benefits, including (1) unemployment insurance, (2) family and
medical leave, and (3) temporary housing benefits. The bill would also prohibit health care
insurers from considering factors related to hate crime for the purposes of determining a victim’s
health insurance eligibility or costs related to such coverage. It would also authorize the Attorney
General to award grants to (1) provide victims and their dependents with counseling; (2) establish
and national clearing house on hate crime information and statistics; and (3) establish a national,
toll-free telephone hotline and a website dedicated to assisting victims of hate crime. The bill
would also authorize the Secretary of Education to provide grants to educational institutions to
improve and provide programs on hate crime. This bill was previously introduced as H.R. 6776 in
the 110th Congress.
Hate Crime Statistics Improvement Act of 2009 (H.R. 823)
On February 3, 2009, Representative Maloney introduced H.R. 823, a bill that would amend the
Hate Crimes Statistics Act to require that the FBI collect statistics on gender-based hate crime.
Under current law, such statistics are collected on the basis of race, religion, sexual orientation,
ethnicity, and disability. This bill was previously introduced in the 109th and 110th Congress (H.R.
1193 and H.R. 1164).
Hate Crimes Against the Homeless Statistics Act of 2009
(H.R. 3419/S. 1765)
On July 30, 2009, Representative Bernice Johnson introduced H.R. 3419, a bill that would amend
the Hate Crimes Statistics Act to require that the FBI collect statistics on hate crimes committed
against homeless persons. On October 8, 2009, Senator Cardin introduced an identical bill (S.
1765). The Senate Judiciary Committee was scheduled to consider S. 1765 for markup on several
occasions, but no further action was taken on this bill.
Hate Crime Legislative Action the 110th Congress
In the 110th Congress, hate crime bills were passed by both the House and Senate, but neither bill
was enacted.
Local Law Enforcement Hate Crimes Prevention Act of 2007
(H.R. 1592)
On March 20, 2007, Representative Conyers introduced H.R. 1592. This bill was nearly identical
to H.R. 2662, a version of which was passed in the 109th Congress. On April 17, the Judiciary
Subcommittee on Crime, Terrorism, and Homeland Security held a hearing on H.R. 1592.
Although the subcommittee approved of H.R. 1592 with little opposition on April 24, the full
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Judiciary Committee considered the bill for 10 hours at markup on the next day.103 Representative
Lamar Smith, the ranking minority member, reportedly led much of the opposition against H.R.
1592, contending that104
In my view, all victims should have equal worth in the eyes of the law.... If someone
intended to harm a person, no motive makes them more or less culpable for that conduct.
Despite vigorous opposition, the full Judiciary Committee approved H.R. 1592 with amendments
by a “party-line” vote of 20-14.105 Several Republican amendments were considered, but most
were defeated.106 In a press release, Chairman Conyers stated that107
H.R. 1592 offers federal protection, in conjunction with state and local officials, for victims
of hate crimes targeted because of their race, religion, sexual orientation, gender, gender
identity, or disability. These crimes constitute an assault not against the victim, but against
our communities and against the very foundation of Democracy.108
The House passed H.R. 1592 on May 3, 2007, by a recorded vote of 237-180 (Roll no. 299). In a
Statement of Administration Policy, however, the Office of Management and Budget (OMB)
underscored that if H.R. 1592 had been presented to then-President George W. Bush, his senior
advisors would have recommended that he veto the bill.109
H.R. 1592, as introduced, set out congressional findings regarding the harmfulness posed to
society by hate crimes, that is, crime motivated by the victim’s actual or perceived race, color,
religion, national origin, gender, sexual orientation, gender identity, or disability. The bill also
included findings regarding the constitutionality of federal intervention into such matters under
the Commerce Clause of the U.S. Constitution, as well as sections of the Thirteenth, Fourteenth,
and Fifteenth Amendments.110 Other provisions in H.R. 1592 were nearly identical to those in
H.R. 1913 (described above). Also, H.R. 1592 would have amended the HCSA to require that the
FBI collect statistics on gender-and gender identity-related bias crimes, as well as juvenile
victims and offenders. Under current law, such statistics are collected on the basis of race,
religion, sexual orientation, ethnicity, and disability.
H.R. 1592 was nearly identical to language that was included in the Senate-passed FY2008
Defense Authorization bill (H.R. 1585) and a measure (S. 1105) introduced by Senator Kennedy
(described below).
103 Elaine S. Povich, “Hate Crimes Bill Wrangles Through House Judiciary,”
Congress Daily, April 25, 2007.
104 Colby Itkowitz, “Panel Approved Bill Broadening Hate Crimes to Cover Gender, Sexual Orientation,”
CQ Today—
Legal Affairs, April 25, 2007, 10:37 p.m.
105 Elaine S. Povich, “Hate Crimes Bill Wrangles Through House Judiciary,”
Congress Daily, April 25, 2007.
106 Ibid.
107 U.S. House of Representatives, Committee on the Judiciary, “House Judiciary Committee Passes Federal Hate
Crimes Bill,” April 25, 2007.
108 Ibid.
109 Executive Office of the President, Office of Management and Budget, “Statement of Administration Policy: H.R.
1592—Local Law Enforcement Hate Crimes Prevention Act of 2007,” May 3, 2007, available at
http://www.whitehouse.gov/omb/legislative/sap/110-1/hr1592sap-h.pdf.
110 For discussion of constitutional issues, see CRS Report RS22812,
Constitutional Limits on Hate Crime Legislation,
by Alison M. Smith.
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Local Law Enforcement Enhancement Act 2007 (S. 1105)
Introduced by Senator Edward Kennedy on April 12, 2007, S. 1105 was similar to H.R. 1592,
except that it included a provision similar to one in H.R. 259 that would have directed the U.S.
Sentencing Committee to conduct a study to determine whether it would be appropriate to adjust
the sentencing guidelines for hate crimes that involve the adult recruitment of minors to commit
such offenses. Senator Kennedy introduced a similar measure (S. 1145) in the 109th Congress; the
bill was referred to the Senate Judiciary Committee, but no further action was taken.
Amendments to the FY2008 Defense Authorization Act (H.R. 1585)
On September 27, 2007, Senator Kennedy successfully amended the FY2008 Defense
Authorization bill (H.R. 1585) with language that was nearly identical to S. 1105 and H.R. 1592
(described above), following a vote of 60-39 (Record Vote Number: 35) to invoke cloture.
Senator Orrin Hatch also successfully amended H.R. 1585 by a vote of 96 to 3. The Hatch
amendment would have required GAO to report on hate crimes in 20 jurisdictions and authorized
the FBI Director to make grants of up to $100,000 to state and local governments to assist in the
investigation and prosecution of hate crimes. The Senate passed H.R. 1585 on October 3, 2007,
by a vote of 92-3 (Record Vote Number: 359). The inclusion of the hate crimes language in H.R.
1585, however, was a point of contention during pre-conference negotiations on the FY2008
Defense Authorization bill.111 Some Republicans maintained that then-President George W. Bush
would have vetoed H.R. 1585 if it had included such language.112 Later, when House Democratic
leaders determined that they did not have the votes to pass H.R. 1585 with the hate crimes
language, House and Senate conferees reportedly agreed to drop that language from the
conference agreement on December 6, 2007.113
Hate Crime Legislative Action in the 107th through
109th Congresses
In four Congresses, the Senate has acted upon hate crime legislation. In the 107th Congress, the
Senate Judiciary Committee reported hate crime legislation, but cloture motions to bring the bill
to the Senate floor for further consideration were defeated. In the 106th and 108th Congresses, the
Senate passed similar legislation as amendments to other bills on three other occasions. In the
109th Congress, the House passed hate crime legislation.
In the 108th Congress, on June 15, 2004, the Senate passed hate crimes legislation as an
amendment offered by Senator Gordon H. Smith to the FY2005 Defense Authorization Act (S.
2400). This amendment would have broadened federal jurisdiction over hate crime by, among
other things, creating hate crime offenses under federal law. The language was nearly identical to
111 John M. Donnelly, “Hate Crimes Language Puts Defense Authorization Conference in Jeopardy,”
CQ Today—
Defense, November 14, 2007.
112 Ibid.
113 Paul Kane, “Hill Negotiators Drop Hate-Crime Provision; Measure Sought to Extend Protections Based on Gender,
Sexual Orientation, Disability,”
Washington Post, December 7, 2007, p. A13.
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the Local Law Enforcement Enhancement Act of 2003 (S. 966), which was introduced by Senator
Edward Kennedy. The amendment passed by a recorded vote, 65-33.
In the 107th Congress, on May 9, 2002, the Senate Judiciary Committee successfully reported out
the Local Law Enforcement Enhancement Act of 2001 (S. 625; S.Rept. 107-147), which was
introduced by Senator Kennedy. Senator Tom Daschle, the Majority Leader, attempted to invoke
cloture and bring this bill to floor consideration, but the cloture bid was defeated.
In the 106th Congress, second session, on June 24, 2000, the Senate passed two hate crime-related
amendments to the FY2001 Defense Authorization Act (S. 2549). Senator Kennedy offered
language that would have broadened federal jurisdiction over hate crime. The language of this
amendment was similar to the Hate Crimes Prevention Act (S. 622), which was also sponsored by
Senator Kennedy. Senator Orrin Hatch offered an alternative amendment that would have
required the Department of Justice and the then General Accounting Office to conduct studies on
hate crime activity. The language of this amendment was similar to a bill to combat hate crimes
(S. 1406), which was introduced by Senator Hatch. The Hatch amendment passed by a recorded
vote, 50-49. The Kennedy amendment passed by recorded vote, 57-42. On September 13, 2000,
the House passed a non-binding motion to instruct the conferees to accept the hate crime
legislation as part of the final bill by recorded vote, 232-192.
In the 106th Congress, first session, on July 22, 1999, the Senate passed two hate crime-related
amendments to the FY2000 Commerce-Justice-State Appropriations Act (S. 1217). Senator
Kennedy offered language that was similar to his and Senator Craig’s amendments (described
above). This amendment passed by voice vote, as did an amendment offered by Senator Hatch, as
an alternative. The Hatch amendment would have provided $5 million for a federal grant program
to assist state, local, and tribal governments in prosecuting hate crimes.
In the 109th Congress, Representative John Conyers, who was then the ranking minority member
on the Judiciary Committee, successfully offered an amendment to the Children’s Safety Act
(H.R. 3132) on September 14, 2005, that included the language of the Local Law Enforcement
Hate Crimes Prevention Act of 2005 (H.R. 2662).114 The Conyers’ amendment would have
broadened federal jurisdiction over hate crime by, among other things, establishing two partially
overlapping categories of hate crime offenses under federal law.115 First, it would have prohibited
the attempted or otherwise willful bodily injury to any person through the use of fire, a firearm,
explosive, or incendiary device, if such criminal conduct were motivated on the basis of actual or
perceived race, color, religion, or national origin of any individual. Second, it would have
prohibited the same criminal conduct, if such conduct were motivated on the basis of an
individual’s gender, sexual orientation, gender identity, or disability, in addition to the other four
characteristics listed above.
As asserted in the amendment’s findings, both provisions were arguably founded upon Congress’s
legislative authority under the Commerce Clause of, as well as provisions of the Thirteenth,
Fourteenth, and Fifteenth amendments to, the U.S. Constitution. The reach of the second offense,
however, would have extended to specific jurisdictional ties to the Commerce Clause, which were
outlined in the amendment. In the past, opponents of expanding federal jurisdiction over hate
crime have argued that such an expansion would be an overreach of congressional power, which
114 H.Amdt. 544.
115 Proposed 18 U.S.C. §249.
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could possibly be challenged in the Supreme Court. Opponents pointed to Supreme Court cases in
which rulings were made based on tighter interpretations of the Commerce Clause.116
In addition to the language of H.R. 2662, Representative Conyers offered another hate crime-
related amendment that would have required additional hate crime statistics be collected for
gender-biased crime and that breakouts be reported for juvenile victims and offenders.117 With
little debate, the House adopted this amendment by a voice vote.
The language of the Local Law Enforcement Hate Crimes Prevention Act of 2005 (H.R. 2662)
proved more divisive, however. Representative F. James Sensenbrenner Jr., chairman of the
Judiciary Committee, argued that the amendment would be a “poison pill” and would possibly
erode the bill’s bipartisan support.118 The House nevertheless passed the amendment by a
recorded vote of 223-199, on September 14, 2005. On the same day, the House passed H.R. 3132
by a recorded vote, 371-52. The Senate did not act on this measure, however. On March 8, 2006,
the House passed the Children’s Safety and Violent Crime Reduction Act of 2006 (H.R. 4472).
Although this bill included many of the provisions that were in H.R. 3132, it did not include the
hate crime language. The bill, however, was brought up under suspension of the rules.
Consequently, amendments to the bill were not considered and the hate crime issue was not
addressed during consideration of H.R. 4472.
On May 25, 2005, Senator Edward Kennedy introduced the Local Law Enforcement
Enhancement Act of 2005 (S. 1145). This bill was similar to H.R. 2662 and the Conyers
amendment to the House-passed version of H.R. 3132.
Author Contact Information
William J. Krouse
Specialist in Domestic Security and Crime Policy
wkrouse@crs.loc.gov, 7-2225
116 For further information, see CRS Report RS22812,
Constitutional Limits on Hate Crime Legislation, by Alison M.
Smith.
117 H.Amdt. 528.
118
Congressional Record, September 14, 2005, p. H7920.
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