U.S. Sens. Amy Klobuchar (D-Minn.) and Lisa Murkowski (R-Ala.) on Jan. 28 introduced a bill calling for strengthening the enforcement of the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009 by clarifying the law’s language related to the motive of people charged with a hate crime.
The newly introduced bill, the Justice for Victims of Hate Crimes Act of 2020, calls for amending the Shepard-Byrd law to make it clear that prosecutors must prove that bias or hate was a “substantial motivating factor” for the crime rather than the sole motive.
The Klobuchar-Murkowski bill follows a proposal by the U.S. Attorney for D.C., Jessie K. Liu, in June 2019 that the D.C. City Council consider amending the District’s hate crimes law to make a similar clarification over the motive of a hate crime.
“Since the passage of the Matthew Shepard and James Byrd Jr. Hate Crime Prevention Act in 2009, federal courts have split on the interpretation of the motive requirement in the law,” according to a statement released by Klobuchar’s office.
“In 2014, the Sixth Circuit Court of Appeals interpreted the law to require that hate crime prosecutors must prove that bias against a protected characteristic was the sole motivation for the crime – a standard that is difficult to prove and could chill the enforcement of the federal hate crimes law,” the statement says.
“The Justice for Victims of Hate Crimes Act clarifies that prosecutors must prove that bias against a protected characteristic was a substantial motivating factor for the crime,” the statement says.
The Shepard-Byrd law was named for gay University of Wyoming student Matthew Shepard, who was bludgeoned to death by two young men in a remote field outside Laramie, Wyo., in 1998 in one of the nation’s most notorious anti-gay hate crimes. The law was also named for Texas resident James Byrd Jr. who was targeted for his race as an African American by attackers to tied him with a rope to a truck and dragged him to death.
LGBT rights organizations played a key role in lobbying for approval of the Shepard-Byrd hate crimes law, which gives the U.S. Justice Department authority to prosecute hate crimes if state and local law enforcement agencies are unable to or decline to prosecute such crimes. The law also authorizes the Justice Department and the FBI to provide assistance to state and local authorities in the prosecution of hate crimes.
The Shepard-Byrd law declares that the federal government through the Justice Department may prosecute a crime of violence “motivated by prejudice based on the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of the victim.”
“As a former prosecutor, I’ve seen firsthand the trauma that hate crimes can inflict not only on victims, but also on entire communities,” said Klobuchar, who’s running for president. “The Justice for Victims of Hate Crimes Act ensures that federal law enforcement have the authority needed to prosecute hate crimes,” she said in a statement. “We must do all we can to put an end to attacks motivated by prejudice.”
Murkowski said in her own statement that she is proud to join Klobuchar in introducing legislation to provide federal law enforcement “the legal certainty they need” to bring perpetrators of hate crimes to justice.
“Prejudice against groups and individuals because of their sexual orientation, religion, race, or other characteristics has been part of our history,” she said “While we have made great progress in protecting our fellow Americans from acts of hatred and bias – discrimination, violence, and stereotyping still continue. It must be put to a stop.”
David Stacy, Government Affairs Director for the Human Rights Campaign, a national LGBT advocacy group; and Richard Saenz, Senior Attorney and Criminal Justice Strategist for the LGBT litigation group Lambda Legal, said their respective groups support the Justice for Victims of Hate Crimes Act.
“We have heard of additional issues in the enforcement of the Federal Hate Crimes law such as barriers to reporting and questions concerning the scope of the law, so we applaud steps to strengthen and clarify the federal law and the authority of prosecutors and courts to enforce it,” Saenz told the Blade in an email.
Stacy said HRC has observed that career federal prosecutors under the Trump administration have continued to prosecute hate crimes under the Shepard-Byrd law. He noted prosecutions under the law began in full force during the Obama administration after President Barack Obama signed the Shepard-Byrd legislation into law in 2009.
According to Stacy, federal prosecutors have said state and local prosecutors have been more aggressive in prosecuting hate crimes since the Shepard-Byrd law took effect, which was the goal of the law’s longtime supporters.
At the time the Shepard-Byrd law was being considered by Congress LGBT rights advocates said the measure was needed, among other reasons, because some local and state prosecutors had declined or appeared unprepared to prosecute anti-LGBTQ hate crimes.
As of this week, a version of the Justice for Victims of Hate Crimes bill had yet to be introduced in the U.S. House of Representatives.