Federalizing hate: constitutional and practical limitations to the Matthew Shepard and James Byrd, Jr. hate crimes prevention act of 2009.

AuthorTrout, Matthew
  1. Introduction

    Late evening on April 4, 2011, Anthony Jenkins, his cousin David, his sister Ashley, and his wife Alexis drove to the rural Kentucky home of Kevin Pennington. 1 Upon arriving, Ashley and Alexis got out of the new white pickup truck and went to Kevin's door. (2) Despite the fact that Kevin had rebuffed Ashley's romantic advances and despite her insistence that he shouldn't be gay, Kevin considered himself friends with Ashley and was not surprised to see her. (3) The two women lured Kevin out into the truck with the promise of drugs, and Kevin acquiesced, not knowing the truck belonged to Anthony or that Anthony and David were inside the vehicle. (4) Once inside, Kevin immediately noticed the two men in front, but they were wearing clothing to conceal themselves and had disabled the truck's interior light. (5) Ashley explained that they were friends, and the group began to drive with an unsuspecting Kevin in tow. (6) Eventually realizing the true identities of the two men, Kevin demanded to be let out of the vehicle. (7) Ignoring Kevin's pleas, David began threatening to sexually assault him. (8) The threats continued as the group drove up a mountain to a secluded part of Kingdom Come State Park. (9)

    Isolated in a wooded area, David and Anthony threw Kevin to the ground and began stomping his head, while Ashley and Alexis encouraged the men by yelling a variety of incitements, including "kill that faggot." (10) Kevin lost consciousness, and after eventually coming to, he overheard Anthony searching for a tire iron and David discussing what to do with his body. (11) Realizing he was about to be killed, Kevin jumped off the nearby cliff into the pitch-black abyss, completely unaware of the cliff's height. (12) Fortunately, Kevin survived the fall, and he waited forty-five minutes after the truck pulled away before venturing out of hiding to an unmanned ranger station. (13) After another two hours of waiting, he broke into the ranger station to call for help. (14)

    This case marked the first time (15) the Department of Justice filed charges under the sexual orientation provision of the 2009 Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act ("Shepard-Byrd Act"). (16) Ashley and Alexis pleaded guilty, and although they "testified that they and the men had agreed in advance to lure Kevin into the truck, drive him to a deserted area and beat him because of his sexual orientation, " ultimately David and Anthony were acquitted on the hate crime charge. (17) While the reasons for this outcome were many, this case illustrates, though does not necessarily resolve, the difficulties facing hate crime prosecutions.

    This Note explores these constitutional and practical difficulties of the federal Shepard-Byrd Act using Kevin's case, United States v. Jenkins, (18) as an example. It argues that proponents of hate crime legislation should continue to press for state laws because constitutional and practical problems limit the effectiveness of the Act. Although this Note tends to focus on crimes against lesbian, gay, bisexual, and transgender ("LGBT") people in part because of the history of Matthew Shepard, in part because of the particulars of Jenkins, and most importantly because sexual orientation and gender identity protections remain the biggest divergence between state and federal hate crime laws, (19) the arguments made are applicable to hate crimes more generally.

    Part II provides context for this issue by examining the background of the Shepard-Byrd Act and hate crimes generally. Part III delves into the constitutional restraints on hate crime legislation. Part IV considers practical difficulties facing hate crime prosecutions and the interplay of state and federal prosecutions. Part V concludes.


    Hate crimes remain a persistent problem in the United States, as shown by the FBI's annual data on hate crime prevalence throughout the country. In 2012, law enforcement agencies reported (20) a total of 5, 796 hate crimes, (21) compared to 8, 759 incidents in 1996 (the first year the FBI published such statistics). (22) This decrease in the number of hate crimes reported is consistent with the general decrease in violent crime over the same time period. (23) However, while the overall number of hate crimes has decreased, the types of hate crimes have not decreased uniformly, and in some instances have actually increased. For example, of the 8, 759 incidents in 1996, only 1, 016 (or 11.6%) were on the basis of sexual orientation. (24) In 2012 by contrast, 1, 135 of the 5, 796 incidents (19.6%) were on that basis. (25) This represents an 8% increase in the proportion of hate crimes based on sexual orientation. Moreover, in absolute terms, the number of hate crimes based on sexual orientation has remained constant even as violent crime more generally has fallen dramatically. (26)

    It is unclear how much of this proportional increase is due to improved recognition and reporting by law enforcement (i.e. reporting a crime as hate-motivated instead of as a simple assault) rather than an actual increase in crimes on the basis of sexual orientation. Not all crimes are reported, and even those that are reported may be inaccurately characterized by police. It is thus difficult to know the true prevalence of hate crimes. (27) As a comparison to official police reports, a June 2013 report by the Pew Research Center suggests that approximately thirty percent of LGBT individuals had been threatened or physically attacked because of their sexual orientation or gender identity at some point in their lifetimes. (28) Thus regardless of whether looking through the lenses of crimes reported or community perceptions, hate crimes remain a concern. Accordingly, difficulties with enforcing hate crime statutes also remain important.

    1. Justifications of Hate Crime Statutes

      As a preliminary matter, however, one might question why we punish hate crimes distinctly from other crimes such as assault or murder. After all, virtually every hate crime involves a separate crime punishable by existing law. (29) Indeed, this question has animated debate over the enactment of seemingly duplicative federal hate crimes legislation. (30) Without rehashing the debates in their entirety, the main points are summarized below to provide context for the discussion of how we ought to effectively enforce hate crime laws.

      The typical justifications for punishing hate crimes as separate crimes are threefold. First, because the criminal defendant acts with a motivation of hatred, bias, or prejudice, the moral culpability of the wrongdoer is greater than that of a person who commits a crime without that motivation. Therefore the punishment ought to be proportionally greater. (31) Second, hate crimes target more than a single victim; they target a community. (32) Unlike a violent act resulting from an argument or drug deal, a crime targeted at a person because of a particular characteristic sends shockwaves through the entire community sharing that characteristic, instilling fear and unease. (33) Arguably, the resulting harm of a hate crime is greater than the harm of its non-hate crime equivalent. Finally, existing criminal law has proven ineffective at deterring hate-motivated crimes, and therefore additional deterrence is warranted. (34)

      Opponents of hate crime legislation generally make four arguments against such laws. First, they argue that existing laws are sufficient and that hate crime laws only add to the problem of over-criminalization. (35) Second, by singling out certain groups, hate crime laws inevitably imply that crimes against certain groups are more serious than crimes against non-protected groups, even if motivated by the same level of hatred. (36) Third, they contend that hate crime laws are inefficacious, perhaps even counter-productive by provoking retaliation against protected groups. (37) Finally, opponents often raise First Amendment constitutional challenges to hate crime laws, arguing that valid speech against certain groups is suppressed or chilled by hate crime legislation. (38)

      As a practical matter, proponents of hate crime legislation have prevailed-- Shepard-Byrd's enactment ensured that hate crime laws have become another tool in the federal prosecutor's belt, and the vast majority of states have enacted hate crime laws of some variety. (39) Given the relative success of hate crime legislation proponents, this Note will analyze Shepard-Byrd's enforcement thus far, identify its limitations, and suggest increased reliance on state laws to overcome these limitations. Before discussing the future of this important piece of legislation, however, it is first important to examine the legal landscape prior to Shepard-Byrd's passage to understand why the law was enacted in the first place.

    2. Legislation Overview

      As of January 2014, forty-five states have enacted hate crime statutes. (40) Of those states, forty-four cover racially-, ethnically-, and religiously-motivated crimes. (41) Beyond these categories, there is less unanimity regarding which classes to protect through hate crime legislation. Thirty states protect disability. (42) Another thirty states cover sexual orientation. (43) Twenty-seven states cover gender, (44) while only fifteen cover gender identity. (45) Thirteen states protect age, and only five cover political affiliation. (46) In addition, the District of Columbia has a broad law covering each of these groups. (47) Finally, thirty states and D.C. require data collection for all reported hate-crimes. (48) Given this patchwork of state laws, it is important to realize that very few are recent enactments. Following the early 2000s, it appears that states have largely lost the impetus to pass new hate crime laws--for example, twenty-seven of the thirty-one laws covering sexual orientation discrimination are over a decade old. (49)

      On the federal level prior to Shepard-Byrd...

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