1) imprisonment up to ten years for persons who cause bodily injury to another, or, through use of fire, firearms, or explosives, attempts to cause bodily injury; and 

2) imprisonment up to life if death results or if the offense includes kidnapping, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.

Federal Authority to Prosecute Hate Crimes

Since Reconstruction, federal law has barred certain egregious conduct because it is based on racial prejudice or other kinds of invidious discrimination. This federal role is based on the special constitutional responsibility placed on the federal government to ensure that no American citizen is subject to discriminatory treatment because of deep-seated prejudice. For example, since 1866, federal criminal law has barred individuals acting under color of law, as well as persons acting in private conspiracies, from depriving individuals of their constitutional rights. In 1968, Congress prohibited crimes of violence against individuals because of their race, color, religion or national origin. It also included criminal provisions in the Fair Housing Act barring violent interference with housing rights because of race, color, religion, gender, familial status or national origin. In 1988, Congress provided for criminal prosecutions of persons who destroy religious property and expanded the criminal provisions in the Fair Housing Act to include discrimination based on disability. The Violence Against Women Act, which became law in 1994, provides for criminal prosecutions of persons who commit violent acts against women under certain circumstances. In 1996, Congress enacted the Church Arson Prevention Act, which made it easier to prosecute individuals for burning churches and other religious property. In enacting these statutes, Congress reaffirmed the special role of the federal government in protecting persons from violent acts resulting from discriminatory motives.

Strengthening the Law against Race and Religion-based Crimes

Although the existing federal hate crimes law has resulted in many successful prosecutions, U.S. Attorneys have encountered difficulties in a number of cases because of the need to prove that the defendant intended to prevent the victim from participating in one of a list of specific federally protected activities. For example, in 1994, the jury acquitted three white supremacists who had assaulted African-Americans. Some of the jurors revealed after trial that they felt racial animus had been established but there was not sufficient evidence that the defendants intended to prevent the victims from participating in a federally protected activity. In order to make it easier to obtain convictions in these cases, the Act would broaden the statute and cover all violent crimes motivated by racial or religious hatred.

Extending Current Law to Cover Sexual Orientation, Gender and Disability

The current federal hate crimes statutes is limited to crimes motived by discrimination on the basis of race, color, religion or national origin.  The federal government also has a role in preventing violence against other disadvantaged groups who have historically been subject to abuse because of their sexual orientation, gender or disability. Some federal statutes now address violence motivated by discrimination on these bases. Federal sentencing guidelines provide for enhanced penalties for specific federal crimes if they are motivated by the victim's gender, disability or sexual orientation as well as other factors. The Fair Housing Act's criminal provisions also include violent crimes based on gender and disability. The Violence Against Women Act provides criminal penalties for persons who commit violent acts if they have traveled across state lines in connection with abusing a spouse or intimate partner or with the violation of a protective order. However, there is no general federal criminal prohibition against violent crimes directed at individuals because of their sexual orientation, gender or disability.

All but eight states have hate crimes statutes of their own. However, only 21 cover sexual orientation, 22 cover gender, and 21 cover disability.  Even in states that have broad coverage, the complexity of the investigation, higher penalties available under federal law, the procedural advantages of a federal prosecution, or the failure of a state prosecution may mean that a federal prosecution is warranted. Federal jurisdiction provides an important complement to state jurisdiction to allow law enforcement authorities a broad range of options in achieving justice in any particular case.

In the case of gender, some rapes and sexual assaults could be prosecuted both under state law and the federal hate crimes statute. Even in cases where there is proof of gender bias, virtually all rapes and aggravated sexual assault cases would continue to be prosecuted under state law because criminal penalties for these crimes are severe. Federal prosecutions are more likely to be appropriate in cases where there is
clear evidence of gender bias but state law penalties are inadequate. For example, under some circumstances a sexual assault by a violent misogynist may not be subject to severe penalties under state law. In addition, federal jurisdiction allows federal authorities to assist the states in bringing their own case. For example, the FBI could assist in the investigation of a case that involves evidence of crimes in several states.

Federal and State Cooperation

An expanded federal hate crimes act would, of course, continue to overlap with state jurisdiction in many cases. Violent crimes, whether motivated by discriminatory animus or not, are generally covered under state law. Such an overlap is common. For example, there is overlapping federal jurisdiction in the case of many homicides, bank robberies, kidnappings, fraud, and other crimes. As is frequently the case when federal and state laws overlap, the number of crimes subject to federal law would greatly exceed the number of federal prosecutions. Even though the federal hate crimes statute might apply as well the state's, there will be no need for a federal prosecution in the vast majority of cases. Almost all rapes and sexual assaults, violent crimes against gay men and lesbians, and violent crimes against disabled persons, will continue to be prosecuted by state and local authorities. The importance of the Act is to provide a backstop to state and local enforcement by allowing a federal prosecution if it is necessary to achieve an effective, just result, and to permit federal authorities to assist in investigations.

Federal prosecutions under the Act would be subject to the current provision that requires the Attorney General or another senior official of the Justice Department to certify that a federal prosecution is necessary to secure substantial justice. In recent years, the existing federal hate crimes law has been used only in carefully selected cases where the state criminal justice system did not achieve a just result. There were an average of 5.2 prosecutions per year under 18 U.S.C. section 245 from FY 1990 through FY 1996.

In all hate crimes prosecutions, federal authorities consult with state and local enforcement officials before initiating an investigation or
prosecution. Federal jurisdiction allows the states to take advantage of Department of Justice resources and personnel, even if the state authorities ultimately bring the case. Federal jurisdiction also allows the Attorney General to authorize a state prosecutor to bring a case based on federal law. In cases where the state has adequate resources to investigate and prosecute a case and appears determined to do so, the federal government will not file its own case. As has been the case under existing law, prosecutions under an expanded hate crimes law would occur primarily in four situations:

1) the State does not have jurisdiction or does not intend to exercise jurisdiction; or

2) the State has requested that the Federal government assume jurisdiction; or

3) the State does not object to the Federal government assuming jurisdiction; or

4) the verdict or sentence obtained pursuant to state charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence.

For example, in U.S. v. Nelson, two defendants were convicted of federal civil rights charges arising from the death of Yankel Rosenbaum, a Hasidic Jew, in the Crown Heights Section of Brooklyn, New York. The federal prosecutions followed a state trial in which one of the two defendants was acquitted of murder, despite substantial evidence of guilt. State and local prosecutors never charged the second defendant.

Hate Crimes Prosecutions

Crimes based on race, color, religion or national origin would be covered  whenever the defendant causes bodily injury or, through the use of fire, a firearm, or an explosive device, attempts to cause injury. Crimes based on sexual orientation, gender or disability would be limited to the same types of violent crimes but only if the crime has a sufficient connection with interstate commerce. In all cases, the prosecution would have to show that the crime was motivated in part by the actual or perceived sexual orientation, gender or disability of the victim. Motivation for the crime is a matter for the jury to determine. As is the case for every element of a criminal offense, prosecutors would have to prove motivation beyond a reasonable doubt. In all cases, these prosecutions would present evidence that indicated that a motivating factor in the defendant's conduct was bias against a particular group.

The states that have hate crimes statutes covering sexual orientation, gender and disability have gained considerable experience in identifying and prosecuting these crimes. The Administration anticipates that the Department of Justice would work with state and local authorities to develop guidelines regarding the prosecution of these cases. These guidelines would include principles for sharing information, working cooperatively on investigations, and determining the most effective law enforcement and prosecution strategy.

First Amendment Concerns

The Act would apply to an individual who Awilfully causes bodily injury to any persons or, through the use of fire, a firearm, or an explosive device, attempts to cause injury to any person....  It does not apply to name calling, verbal abuse or expressions of hatred toward any group even if statements amount to hate speech. As in all cases where intent is relevant, statements by the defendant could be used as evidence of intent. The Supreme Court, in Wisconsin v. Mitchell, held that Congress and the states may decide to impose a more severe penalty on bias-inspired conduct if the conduct itself goes beyond protected speech. Causing or attempting to cause bodily injury is clearly not speech protected by the First Amendment.