29 Nov 23

Can Hate Crimes Be Charged Federally?

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Last Updated on: 15th December 2023, 12:47 pm

Can Hate Crimes Be Charged Federally?

Hate crimes are acts of prejudice-motivated violence or intimidation. They target victims because of their perceived membership in a certain social group – most often marginalized groups defined by attributes like race, religion, ethnicity, sexual orientation, disability, or gender identity. When those crimes occur, one question that often comes up is whether the perpetrators can face federal charges in addition to or instead of state or local ones. The answer is complicated, but yes, federal hate crime laws do exist that allow for federal prosecution in certain circumstances.

What Makes Something a Hate Crime

First, let’s define what constitutes a hate crime. For a criminal act to qualify as a hate crime, two main elements must be present:

  1. The act must be a crime under existing federal, state, or local laws – things like assault, threats, damage to property, etc.
  2. The crime must have been motivated in whole or in part by the offender’s bias against the victim’s real or perceived race, religion, ethnicity, national origin, sexual orientation, gender, gender identity, or disability status.

It’s the perpetrator’s discriminatory motivation that makes it a hate crime. Without that, the same violent act would be prosecuted as a normal assault, threat, vandalism, etc. depending on the circumstances.

Federal Hate Crime Laws

In the U.S., criminal law is mostly made and enforced at the state level. But over the years, Congress has passed legislation creating federal hate crime laws allowing for federal charges in certain cases:

  • Civil Rights Act of 1968 – Made it illegal to use force or threat of force to injure, intimidate, or interfere with a person because of their race, color, religion, or national origin.
  • Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009 – Expanded federal hate crime laws to include crimes motivated by actual or perceived gender, gender identity, sexual orientation, or disability.

So federal prosecutors can charge hate crimes under those laws. But there are still limitations – mainly that the crime must involve a situation where the federal government has jurisdiction and chooses to get involved.

Requirements for Federal Jurisdiction Over Hate Crimes

Federal authorities have jurisdiction over hate crimes that:

  • Occur on federal property like national parks, military bases, federal buildings, etc.
  • Involve crossing state lines or using facilities like roads, phones, internet connected to interstate commerce.
  • Involve federally protected activities like voting, attending school, serving on a jury, etc.
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Even if one of those jurisdictional requirements are met, federal agencies still have discretion over whether to bring charges. They tend to focus on cases meeting certain criteria like:

  • Crime was unusually severe in brutality.
  • State or local authorities are unwilling or unable to prosecute effectively.
  • Crime got national media attention or has possibility to set legal precedent.
  • Perpetrator appears to be part of organized hate group.

So while federal hate crime charges are possible in a range of cases, they aren’t brought all that routinely. Most hate crime prosecutions still happen at the state or local level.

Punishments for Federal Hate Crimes

Those convicted of federal hate crimes face serious penalties that go beyond what they may have gotten from state courts. Maximum punishments are extended, and judges are required to “enhance” sentences above standard guidelines in most federal cases. Exact prison terms vary widely based on case specifics, but federal hate crime sentences often reach:

  • 10-20 years for violent crimes against people.
  • 3-7 years for non-violent intimidation.
  • 1-5 years for property damage resulting from bias crimes.

Fines up to $250,000 can also be assessed. The idea is that the possibility of harsh federal punishment creates a deterrent and underscores national policy against discrimination in the criminal justice process.

Controversies Around Federal Hate Crime Laws

While federal hate crime laws seem straightforward, they also raise some controversial issues that continue to be debated:


Some legal scholars argue hate crime laws violate constitutional rights in these ways:

  • They punish thoughts and speech rather than just actions.
  • They undermine due process and equal protection rights by treating same crimes differently based on motive.
  • They infringe on states’ rights to make and enforce criminal law.

Federal courts have consistently upheld federal hate crime laws as constitutional, but some experts still question them on principle.

Actual Deterrent Effect

It’s unclear if harsher federal penalties really deter hate crimes or just enable longer incarceration after the fact. Some research indicates:

  • Laws alone don’t reduce prejudice in society or change behaviors.
  • Longer sentences could reinforce perceptions that validate offenders’ racial resentments.

So while the laws aim to deter future crimes, some data suggests they may be limited as a preventative measure.

Potential Abuse

Giving federal authorities more discretionary power over local cases also raises concerns about potential abuse, like:

  • Overreach into incidents better handled by communities.
  • Disproportionate targeting of marginalized groups.
  • Politicizing justice processes for partisan ends.
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So far, evidence doesn’t show systematic misuse of federal jurisdiction. But civil liberties advocates still caution against over-federalization of hate crime prosecutions.

The Bottom Line

Federal hate crime laws serve important purposes but also present drawbacks and tensions. Their use will likely continue generating analysis and debate between those seeking both justice and reconciliation during turbulent times. The real impacts result not just from high-profile prosecutions but also from how successfully communities can heal human relationships over the long term.

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