Hate Crimes

This article covers the recent growth of hate crimes in American society and the criminal implications for those accused of hate crimes. This is a particularly timely article as the nation grapples with the attempted insurrection of the U.S. Capital on January  6, 2021, and the subsequent prosecutions of hate crime members of groups such as the “Proud Boys” and others.

The Need for Clarity

A law that seems to define hate as a crime has caused a lot of unnecessary confusion in recent years, and consequently, its meaning has been frequently misunderstood. While feeling hate or expressing hate through words alone is not a crime, one’s motivation to act on that hate by causing injury to others and property damage is considered a hate crime.

Definition of Hate Crimes

Uniform Crime Reporting (UCR)

The UCR is a United States agency that sources information on criminal offenses. The UCR defines a hate crime as an offense motivated, in whole or in part, by the offender’s prejudices and biases against a group based solely on their:

• race
• religion
• disability
• sexual orientation
• ethnicity
• gender
• gender identity

To understand the distinction between the different motivations behind hate, it’s useful to look at the ordinary meaning of the term hate versus how that term is used when legally describing the necessary element of a hate crime.

The word hate as part of the legal term hate crime does not mean the rage and anger one may experience because of being assaulted, injured, or mistreated by another and now seeks hateful revenge on that person by criminal means.

The term hate crime means something very different. It means the hate of a class or group of people because they are of a different color, race, religion, national origin, disabled, or have a different sexual orientation or identity.

Constitutional History of Hate Crimes

A hate crime can appear like any other criminal offense, such as manslaughter, assault, arson, or vandalism, with one exception – the subjective intent and primary motivation for the crime is a prejudicial hatred against the victim.

In recent years the federal government and many states have shown increasing concern about crimes motivated by racial hatred.

In response, Congress has enacted a body of laws intended to prosecute hate crimes beginning with the Hate Crimes Sentencing Enhancement Act of 1994 and followed up with the Hate Crimes Prevention Act of 1997, which expanded the scope of hate crime victims to include gender, sexual orientation, gender identity, and disability.

Federal Enforcement of Hate Crimes

Based on FBI Crime Statistics, it is anticipated that we will see a sharp increase in reported cases of hate crimes throughout the United States in the next two years.

Under the 2009 Hate Crimes Prevention Act, the FBI has become the lead law enforcement agency for hate crimes and other civil rights violations.

Prosecution of State Hate Crimes

Hate crimes are also prosecuted under state law. Should a state decide to prosecute a hate crime, the state must immediately notify the Department of Justice of the case. The Department of Justice can then enter the case, and if requested by the state, federal resources are made available to the state to assist in the prosecution of the matter.

Sometimes, the U.S. Attorney’s Office will assume prosecutorial authority over the case if local authorities are unwilling to prosecute such a case.

The Prosecutors Burden of Proof

Under the law, most criminal offenses, especially those dangerous enough to be prosecuted as a felony, it must be motivated by an unlawful and discriminatory purpose. Crimes against persons and property are some of the offenses commonly charged in hate crime cases.

Under current law, to obtain a conviction in a hate crime case, the prosecutor must prove that the defendant committed the underlying crime beyond a reasonable doubt, as well as proving the defendant chose to harm the victim because of their color, race, national origin, gender, sexual orientation, and disability.

The types of criminal acts committed in hate crimes are often acts of violence. They can include other individuals who may have conspired to join in the commission of such actions, thereby becoming accessories to the crime and consequently jointly liable for the crime.

Criminal Penalties – Hate Crime Convictions

Under 18 U.S. Code § 249, individuals convicted of a hate crime can receive prison terms of up to 10 years. Hate crimes involving kidnapping, sexual assault, or murder can be punishable by life in prison.

Hate Speech Alone Is Protected Under the First Amendment

Hate speech is not a crime and has traditionally been constitutionally protected by the First Amendment. However, when hate is motivated by prejudice and targeted at a person because of that prejudice (such as hate for a person’s color, race, religion, national origin, sexual orientation, etc.), the criminal violence against that person will be prosecuted as a hate crime.

In 2017 the Supreme Court unanimously held in Matal v. Tam that there is no ‘hate speech’ exception to the First Amendment. It is a long-established precedent of the Supreme Court that hate speech is not a crime.

Hate Crimes Associated with Political Speech

As the violent acts committed on January 6, 2021, suggests, there seems to be a growing equivalency between prejudicial hate for minorities and for the judicial, political institutions, and enforcement agencies that protect the rights and safety of those minorities.

Consult A Criminal Defense Lawyer

 Should you have specific questions or require additional information about your legal rights and obligations, we recommend you consult a verified Criminal Defense Lawyer as soon as possible.