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HATE, VIOLENCE, AND DEATH ON MAIN STREET USA2008LEGISLATIONI. Current Federal Law Addressing <strong>Hate</strong> CrimesFederal hate crime laws do not currently include homeless individuals as a protected class.However, these laws form the backdrop for proposed expansions in federal hate crime law <strong>and</strong>serve as a template for reform proposals in the states. Three federal statutes are relevant.The 1968 Civil Rights Act, 18 U.S.C. § 245, establishes a number of criminal penalties for theuse of force or intimidation to prevent the free exercise of civil rights on the basis of race,color, religion or national origin. The Act provides penalties for whoever, “by force or threatof force willfully injures, intimidates or interferes with, or attempts to injure, intimidate orinterfere with” another (1) “because of” that person’s “race, color, religion or national origin,”<strong>and</strong> (2) “because [that person] is or has been” attending a public school, serving as a juror instate court, traveling in a facility of interstate commerce, making use of a publicaccommodation, seeking or taking employment, or making use of the benefits of any stateprogram. Id. § 245(b) (2). The Act also establishes penalties for whoever, “by force or threatof force willfully injures, intimidates or interferes with, or attempts to injure, intimidate orinterfere with” another person for (1) “participating” in federal programs or civil duties“without discrimination on account of race, color, religion or national origin,” or (2)“affording another person or class of persons opportunity or protection to so participate.” Id.§245(4) (A), (B).State <strong>and</strong> local law enforcement agencies are expressly authorized to enforce the Act. Federalprosecutions are also permitted, although these require “the certification in writing of theAttorney General, the Deputy Attorney General, the Associate Attorney General, or anyAssistant Attorney General specially designated by the Attorney General that in his judgmenta prosecution by the United States is in the public interest <strong>and</strong> necessary to secure substantialjustice….” 18 U.S.C. §245(1).The 1990 <strong>Hate</strong> Crime Statistics Act 12 , codified as a note to 28 U.S.C. § 534, requires theAttorney General to collect data on certain “crimes that manifest evidence of prejudice basedon race, religion, disability, sexual orientation, or ethnicity, including where appropriate thecrimes of murder, non-negligent manslaughter; forcible rape; aggravated assault, simpleassault, intimidation; arson; <strong>and</strong> destruction, damage or v<strong>and</strong>alism of property.” The Act alsodirected the Attorney General to establish guidelines for the collection of such data. TheAttorney General delegated this task to the F.B.I., which has defined a hate crime as a “biascrime”—that is, a crime “committed against a person or property which is motivated, in wholeor in part, by the offender’s bias against a race, religion, disability, sexual orientation, or12 Pub. L. No. 101-275, Apr. 23, 1990, 104 Stat. 140, as amended Pub. L. No. 103-322, § 320926, Sept. 13, 1994, 108Stat. 2131 (inserting “disability”); Pub. L. No. 104-155, § 7, July 3, 1996, 110 Stat. 1394 (reauthorizing the Act). TheAct directs the Attorney General to use authority granted under 28 U.S.C. § 534 to acquire hate crime data.39
HATE, VIOLENCE, AND DEATH ON MAIN STREET USA2008ethnicity/national origin.” 13 Under these guidelines, crimes based on bias should be reportedto the FBI by local law enforcement agencies if there is objective evidence that the crime wasmotivated wholly or partially by bias. 14 The guidelines themselves provide a non-exhaustivelist of twelve factors that might be considered “objective evidence” that the offender wasmotivated by bias. 15The Violent Crime Control <strong>and</strong> Law Enforcement Act of 1994 16 , codified as a note to 28U.S.C. § 994, directed the United States Sentencing Commission to “promulgate guidelines oramend existing guidelines to provide sentencing enhancements of not less than 3 offenselevels for offenses that the finder of fact at trial determines beyond a reasonable doubt are hatecrimes.” Under guidelines issued under this statute, a “hate crime” is defined as a “crime inwhich the defendant intentionally selects a victim, or in the case of a property crime, theproperty that is the object of the crime because of the actual or perceived race, color, religion,national origin, ethnicity, gender, disability, or sexual orientation of any person.” 17 (Emphasisadded).This is a far narrower definition than applies in the context of the data collection statute. Inorder for the enhancement to apply, the court or, in a jury trial, the jury, must find beyond areasonable doubt that the defendant intentionally selected his or her victim because of therace, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of thevictim or another person. If the defendant pleads guilty or no contest, the SentencingGuidelines recommend that the court finds such facts beyond a reasonable doubt beforeapplying the enhancement. Id.As the Supreme Court has recently made clear, the Guidelines are only advisory <strong>and</strong> federal13 U.S. Dept.of Justice, Fed. Bureau of Investigation, <strong>Hate</strong> Crime Data Collection Guidelines 2 (1999) [hereinafter <strong>Hate</strong>Crime Data Collection Guidelines]. Notably, the Act itself refers only to “ethnicity,” however the Department ofJustice has interpreted ethnicity to include both ethnicity <strong>and</strong> national origin. Id.14 <strong>Hate</strong> Crime Data Collection Guidelines, supra note 2, at 4.15 Id. at 4-5. These factors are: (1) the offender <strong>and</strong> victim are of a different race, religion, disability, sexual orientation,<strong>and</strong>/or ethnicity/national origin; (2) oral comments, written statements, or gestures indicating bias were made by theoffender; (3) drawings, markings, symbols or graffiti indicating bias were left at the crime scene; (4) objects, items, orthings indicating bias were used in the commission of the offense; (5) the victim belongs to a racial, religious, disability,sexual orientation, or ethnic/national origin group that is “overwhelmingly outnumbered by other residents in theneighborhood where the victim lives <strong>and</strong> the incident took place”; (6) the victim was visiting a neighborhood wherehate crimes against other members of the victim’s racial, religious, disability, sexual orientation, or ethnic/nationalorigin group occurred <strong>and</strong> tensions remained high; (7) other similar incidents occurred in the same locality againstvictims who shared the victim’s group affiliation; (8) “a substantial portion” of the community in which the crimeoccurred believe the incident was motivated by bias; (9) the victim was engaged in activities promoting his or her groupthrough participation in an advocacy organization or by attending demonstrations; (10) the incident coincided with aholiday or day of importance to the victim’s group; (11) the offender had prior involvement in a similar hate crime or isa member of a hate group; <strong>and</strong> (12) there are indications of hate-group involvement. Id. at 5.16 Pub. L. No. 103-322, § 280003, Sept. 13, 1994, 108 Stat. 2096.17United States Sentencing Guidelines Manual § 3A1.1(a) (2006). Note, however, that the Sentencing Guidelines onlyapply in federal court, where the defendant has committed a federal crime, a crime on federal l<strong>and</strong> (including on Indianreservations), or is otherwise subject to penalties under federal law.40
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