Hate crime laws, explained

Editor’s note: Portions of this article were previously published by the Southern Poverty Law Center in a story titled Hate Crimes, Explained, that explored a further understanding of hate crimes and their impact.

In 1968, Congress passed the first federal hate crimes law. Previously, for much of U.S. history, local law enforcement officials – especially in the Jim Crow South – most often refused to investigate or prosecute lynchings and other race-based crimes.

To address this failure, as part of the Civil Rights Act of 1968, Congress enacted 18 U.S.C. §245 (Violent Interference with Federally Protected Rights) to authorize prosecutions for a number of white supremacists who committed murders, bombings or other acts of violence to intimidate the Black community and civil rights activists. This narrow law made it a federal crime to forcefully injure, intimidate or interfere with someone – on the basis of their race, color, religion or national origin – as they tried to participate in any of six federally protected activities, including voting or attending school.

Today, a hate crime is defined by the FBI as a violent or property crime – such as murder, arson, assault or vandalism – that is “motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender or gender identity.”

In addition to the federal statutes, 46 states and the District of Columbia have hate crime laws. These laws differ in significant ways. All cover bias based on race, ethnicity or religion. But only 34 states and D.C. cover sexual orientation; only 33 states and D.C. cover gender; only 20 states and D.C. cover gender identity/expression; and only 34 states and D.C. cover disability.

Arkansas, South Carolina, Indiana and Wyoming have no hate crime laws but still report hate crime data to the FBI.

Among the most significant federal actions since the Civil Rights Act of 1968:

1990

Congress passes the Hate Crime Statistics Act. It requires the attorney general to publish an annual report on crimes that exhibit evidence of prejudice based on race, religion, sexual orientation or ethnicity. The FBI was tasked with collecting and reporting this data under its Uniform Crime Reporting Program (UCR), which has been gathering crime data from state and local law enforcement agencies on a voluntary basis since 1930. The FBI has been publishing hate crime statistics reports since 1991.

At the signing ceremony for the Hate Crime Statistics Act, President George H.W. Bush referenced the Civil Rights Memorial, built and sponsored by the SPLC in Montgomery, Alabama. Bush quoted Martin Luther King Jr., whose words are etched on the Memorial: “We will not be satisfied until justice rolls down like waters and righteousness like a mighty stream.” Bush added, “We must rid our communities of the poison we call prejudice, bias and discrimination. … The Hate Crime Statistics Act is an important further step toward the protection of all Americans’ civil rights.”

1994

TheViolent Crime Control and Law Enforcement Act amends the Hate Crime Statistics Actto include bias against persons with disabilities.

1996

The Church Arson Prevention Act cements the Hate Crime Statistics Act by making the collection of hate crime data a permanent part of the UCR. Enacted after 66 Black churches were destroyed in less than two years, the act additionally authorizes the federal government to prosecute persons who burn or damage religious property.

2009

Congress passes the landmark Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act [Division E of the National Defense Authorization Act for FY 2010], named for two victims of horrific crimes based on their identities. Matthew Shepard, a 21-year-old gay student, was beaten and murdered in Wyoming. James Byrd Jr., a 49-year-old Black man, was dragged to his death behind a truck by three white supremacists in Texas.

The Shepard-Byrd Act changed federal hate crime law in several important ways. It removed the requirement that, to qualify as a hate crime, the victim must have been participating in a federally protected activity such as voting. It expanded the existing hate crime law to include crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity or disability. It required the FBI to add gender and gender identity as categories of hate crimes it tracks. It gave the federal government greater flexibility to prosecute hate crimes that local authorities choose not to pursue. And it required the FBI to collect data concerning hate crimes committed by or targeting juveniles. The FBI began collecting this data in 2013.

The Shepard-Byrd Act serves as an essential backstop when state or local law enforcement officials either cannot or will not investigate and prosecute a hate crime.

2015

The FBI expands the religious bias category and begins collecting and reporting on hate crimes directed against, among others, Sikhs, Hindus, Arabs, Mormons, Jehovah’s Witnesses and Eastern Orthodox people.

2021

After thousands of incidents of violence, harassment and intimidation directed against Asian American and Pacific Islander community members, Congress passes the COVID-19 Hate Crimes Act, which authorizes incentive grants to stimulate improved local and state hate crime training, prevention, best practices and data collection initiatives. It also requires the Department of Justice to issue guidance for state, local and tribal law enforcement agencies on establishing online hate crime reporting and collection processes. Additionally, it establishes grants that will allow states to create and operate hate crimes reporting hotlines.

Picture at top: At the White House, President Joe Biden signs the COVID-19 Hate Crimes Act into law on May 20, 2021. Congress passed the act, which authorizes incentive grants to stimulate improved hate crime training and prevention, following thousands of incidents fueled by escalating anti-Asian rhetoric during the pandemic. (Credit: Nicholas Kamm/AFP Photo)