This month marks the forty-ninth anniversary of one of the most dreadful hate crimes to send shock waves across the world. On April 4, 1968, Dr. Martin Luther King Jr. was assassinated for his powerful work as a leader of the Civil Rights Movement and the color of his skin. It has been forty-nine years since Dr. King’s assassination but hate crimes are not artifacts of the past. Last year, the Federal Bureau of Investigations (“FBI”) released statistics showing a disturbing increase in the number of reported hate crimes. Most notably, the statistics reflect a 67% rise in crimes against Muslim Americans. The FBI currently defines a hate crime as a “criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.”
The Southern Poverty Law Center counted over eight hundred incidents of hateful harassment or intimidation in the ten days following the election of President Donald J. Trump. The newly elected administration has made generalized statements on how deeply divided our nation is during elections but has not announced plans on how to combat this division. The administration’s silence was interpreted as a possible lack of prioritization or strategy on how to handle crimes involving hate and extremism. On April 6, 2017, Attorney General Jeff Sessions announced the Justice Department’s new crime reduction task force which includes a Hate Crimes Subcommittee to “develop a plan to appropriately address hate crimes to better protect the rights of all Americans.” Announcement of the task force was received guardedly by hate crime litigators who argue the rhetoric on the Trump campaign trail enticed violent riots and allowed for discrimination in the name of patriotism.
Attorney General Sessions famously stood in opposition of the most notable piece of anti-hate crime legislation known as the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, 18 U.S.C. § 249, signed by President Barack Obama in 2009. The act expands the 1969 United States federal hate crime law, 18 U.S.C. § 245, to include offenses motivated against someone’s sexuality or gender identity and allows federal authorities the ability to intervene when local authorities choose to not prosecute. Sessions stated he believed the act was unconstitutional in certain parts and “violated the basic principle of equal justice under the law.” Sessions argued federal hate crime legislation risks treating assailants and victims of equally terrible crimes unequally. Assailants of the exact same state and federally prosecuted hate crime will receive unequal punishment under the law. Sessions stated federal involvement should only be warranted if state and local authorities expressed indifference to the prejudice.
During his confirmation hearings on January 10, 2017, Sessions reaffirmed his preference for prosecuting hate crimes at the state level. The Hate Crimes Prevention Act dictates that the Attorney General – or a designee – sign off on all criminal prosecutions under the act. The bill passed over Sessions’ protests in 2009, but as he now holds the position of Attorney General, he can effectively neutralize the bill by refusing to sign off. If Sessions chooses to derail federal prosecutions, victims of hate crimes will be limited to state courts. Federally prosecuted hate crimes carry potentially harsher penalties than statutes enacted by individual states. There are currently five states that have no hate crime laws: Wyoming, Indiana, Arkansas, Georgia, and South Carolina. An issue, therefore, arises when a victim cannot seek justice within their domicile state and may be left without a federal option. By allowing greater prosecutorial discretion at the state level, states may be more inclined to follow the possible federal example and not pursue legal action. States are also left with the discretion to minimize the severity of hate crimes claims by simply charging them as different minor offenses such as slander, harassment, or battery/assault that could possibly create a lower penalty.
The task force announcement was made a week after White House Press Secretary Sean Spicer refused to acknowledge the racially motivated stabbing and murder of Timothy Caughman as a hate crime and blasted the media for pointing the blame finger. Hate crime litigators view the task force announcement as a hollow commitment until it is proven not to be a committee that merely exists on paper. Until the Hate Crimes Subcommittee develops a plan, many Americans are left wondering whether there will be a concrete course of action to protect their rights and lives.