Federal Hate Law on Ropes Despite Slayings

Despite a national outcry over the gruesome murder in October of a gay Wyoming university student, efforts to pass a strengthened federal hate crime law this year appear doomed. While the Hate Crime Prevention Act (HCPA) could be considered in a future session of Congress, its chances for passage even then are unclear at best.

Since 1968, several federal laws have been enacted that can be applied to hate crimes in some circumstances. But these laws have rarely been used, and critics say they are extremely limited in scope.

The limitations on the reach of the law can create bizarre results. In one case, for instance, a hate crime inside a convenience store could only be punished because a video game happened to be located there, making the use of the store as a venue of public entertainment a federally protected activity.

Anomalies like this sparked the recent bipartisan effort, backed by the Clinton Administration, to greatly expand the law's scope with the proposed HCPA. But despite testimony from a relative of James Byrd Jr., the black man dragged to his death last June in Jasper, Texas — and national headlines about the murder of Matthew Shepard in Wyoming — the proposed law remained bottled up in House and Senate committees.

Currently, there are seven primary federal civil rights statutes, some of them passed prior to 1968, that may be applicable to hate crimes:

· 18 USC §245, enacted in 1968, protects specified rights, such as voting and federal employment. Other rights, such as the right to public education, state jury service, certain modes of interstate travel and the use of certain public accommodations, are only protected when the deprivation is based on the victim's race, color, religion, or national origin.

· The Fair Housing Act, also passed in 1968, has criminal provisions at 36 USC §3631 that punish status-based deprivations of housing rights.

· The Hate Crime Sentencing Enhancement Act of 1994 increases the penalties for underlying federal offenses by about 30 percent when the offender intentionally selects his victim on account of certain status characteristics such as race, religion, national origin, sexual orientation, gender or disability. But this law only applies to federal crimes, which are very limited in number.

· 18 USC §241 punishes conspiracies that interfere with federal rights. Lone offenders are not covered by the law.

· 18 USC §242 punishes deprivations of federal rights committed by government officials. This law was used to prosecute the police officers who beat Rodney King. It does not apply to offenders who are private citizens.

· The Violence Against Women Act of 1994 provides a new federal civil remedy for victims of gender-based violent crimes. Whether or not the act is constitutional is still an open question.

· The Church Arsons Prevention Act of 1996 extends federal criminal jurisdiction to certain cases of religious vandalism.

Because of the strict requirements and limitations of these statutes, federal authorities face high hurdles in pursuing civil rights cases. If the case lacks a conspiracy, state actor, housing violation or violation of another federal statute, federal authorities are left to try and fit their case around 18 USC §245, the primary criminal civil rights statute.

The requirements of 18 USC §245 have frustrated federal authorities for years. In 1980, serial killer Joseph Paul Franklin was acquitted under 18 USC §245 even though the jury believed Franklin tried to kill then-Urban League President Vernon Jordan because of his race. The jury found that a required element of the statute — that Jordan was shot to prevent him from using a public accommodation — was not proved.

What's more, the jury was right.

"One would think, and I think most people in the United States do believe, that it is a federally protected and constitutional right to live, and that if one's life is taken by another person because one is black, Hispanic or some minority group, then that constitutes a violation of federal law," Drew Days III, then head of the Justice Department's civil rights division, told Congress that year.

"But it is my considered judgment that this type of violence can take place without running afoul of federal statutes."

The recently proposed HCPA sought to remedy this perceived problem. It would have expanded the rights protected under the 18 USC §245 to include any right protected under federal law or the Constitution. And it would have designated sexual orientation, disability, and gender as protected status groups, although only in instances where interstate commerce was involved.

The rationale for the interstate commerce nexus is that status-based violence against groups like gays, women and minorities disrupts commerce by discouraging members of those groups from traveling or transacting business.

Opponents of HCPA argued that it would inundate federal courts with new cases that were already covered by state statutes. "It is only a short step to federalizing all violent crime," argued attorney Kimberly Potter, co-author of a book on hate crime laws.

But proponents contended the law was necessary because of the unique severity of hate crime, the weakness of existing federal laws and the need for federal resources in a limited number of cases where local authorities cannot or will not prosecute. Supporters also argued that many small local jurisdictions lack the resources to prosecute complex hate crime cases, a lack that could be remedied with federal dollars.

In any event, there are 41 states that have adopted some form of hate crime laws (Arkansas, Georgia, Hawaii, Indiana, Kansas, Kentucky, South Carolina, New Mexico and Wyoming have not), and more may be coming. In the wake of the death of Matthew Shepard, many people in Wyoming, which has failed to pass such a law, are lobbying for passage.

Although most state laws protect racial and religious groups, only 21 include sexual orientation as a status group.

To 27-year-old Army veteran Rene Francis Mullins, the case for the proposed federal law is simple — and deeply personal. "On June 7, 1998, between 2:15 and 2:30 a.m.," she told a Senate committee, "my father James Byrd, Jr. was on his way home from an anniversary party when three Caucasian men picked him up, tortured him and dragged him to his death."


Attorney Brian Levin is an associate professor of criminal justice at the Richard Stockton College of New Jersey, where he also serves as director of the Center on Hate & Extremism. Levin is the author of a forthcoming book, Hate and Justice in America (Aspen Publications, 1998).