Bill Seeks to Bolster State Hate Crimes Prosecutions

(Updated 10 a.m. EDT, May 28, 2009)

A bill that cleared the U.S. House of Representatives and is awaiting Senate action seeks to bolster prosecution of so-called “hate crimes.” It would provide special funding to state and local law enforcement to investigate and prosecute such crimes, and expand protection for the first time to gays, lesbians, bisexuals, transsexuals and the mentally and physically disabled.

Currently, such protections are extended only on the basis of race, religion, and national origin.

The bill’s critics are raising concerns about its expansion of federal jurisdiction. It would repeal a provision of an earlier law, a 1969 restriction that limits federal hate crimes prosecutions to cases in which victims are engaged in six categories of protected activity – including activities such as going to school, serving on a jury and eating in a lunchroom.

Under this proposal, upon consultation with state law enforcement, the federal government could prosecute any hate crimes case in which the state has requested federal intervention or does not object to it. The federal government also could assume jurisdiction over any hate crimes case when a state verdict or sentence, in the bill’s language, does not reflect “federal interests in eradicating bias-motivated violence.”

Known as the Matthew Shepard Hate Crimes Prevention Act , the bill is named after a 21-year-old University of Wyoming student who was murdered in 1998 allegedly because he was gay. Because Wyoming does not have a hate crimes law, Shepard’s killers were not charged with a hate crime. They were, however, found guilty of felony murder and sentenced to life in prison without parole.

Only four states besides Wyoming – Arkansas, Georgia, Indiana and South Carolina – do not have state hate crimes laws.

“This bill strengthens federal jurisdiction over hate crimes as a back-up, but not a substitute, for state and local law enforcement. States will still bear primary responsibility for prosecuting most hate crimes, which is important to me as a former state prosecutor,” said Harry Reid, a Nevada Democrat who serves as U.S. Senate majority leader.

The federal bill is endorsed by 26 state attorneys general and hundreds of law enforcement, civic, religious and civil rights groups, said Reid. The bill would authorize up to $5 million in federal money over two years in grants of up to $100,000 to help state and local law enforcement prosecute more hate crimes.

But opponents question its constitutionality, noting that it raises equal justice and double jeopardy issues.

“If you’re the defendant, it doesn’t seem any less unfair to you if you are tried first in a state court and then in a federal court or tried twice in state court or tried twice in federal court,” said Hans Bader, a legal expert at the Competitive Enterprise Institute, which advocates for limited government.

Jim Anderson (R), majority leader of Wyoming’s state Senate, said a federal or state hate crimes law would not have affected the state’s prosecution of Shepard’s murder.

“Had we had that legislation in place at the time of that crime, it probably would not have prevented the crime, nor would it have increased the penalties that those two individuals received. … Those enhanced penalties for hate crimes are not necessary if the penalties are already appropriately in place for those crimes, whomever they are committed against,” Anderson said.

Out of the 45 states with hate crimes laws, at least 31 states specify sexual orientation, 27 states include gender identity, and 31 states include physical or mental disability, according to data collected by the Anti-Defamation League.

Colorado in April became the first state in which a state hate crimes statute resulted in a conviction in a transgender person’s murder. Allen Andrade was convicted April 23 of first-degree murder in the killing of 18-year-old Angie Zapata, who adopted a female lifestyle at age 16. Andrade’s life sentence was extended by 12 years on the basis that he committed a hate crime, as reported by The Denver Post .

Supporters of the federal bill note rising incidents of hate crime nationwide as a reason to give the U.S. government a larger role in hate crimes prosecutions.

The FBI’s latest crime statistics show 7,624 incidents of hate crime involving 9,006 offenses in 2007; 1,460 of those offenses were based on sexual-orientation bias and 82 were based on mental or physical disability bias.