In 1998, the world was horrified by news reports of two gruesome hate-fueled murders. James Byrd Jr. was chained to the back of a pickup truck and dragged to his death. Matthew Shepard was beaten, tied to a buck rail fence, and left to die. Both were targeted simply for who they were—Byrd Jr. for his race and Shepard for his sexual orientation. In the 20 years that followed, are law enforcement officers better trained to prevent and successfully investigate hate crimes?
In the past two decades, countless news and feature articles have been written to give meaning to the lives of Byrd Jr. and Shepard by exposing who these men were—not just in death, but also in life. Movies and plays were produced; songs, books, and poems were written; foundations bearing their names were established; hate crime laws were passed in their memories; and celebrities used the two men’s tragic stories to advocate for a more accepting and inclusive society. But what is their legacy as it relates to law enforcement? Have law enforcement officials learned how to prevent hate crimes through an early identification protocol to stop those individuals who intend to commit violent acts against persons in protected classes? If law enforcement cannot stop the threat, are they at least better equipped to accurately identify a bias-motivated crime and successfully investigate it, report it, and guide the case through prosecution?
Are Hate Crime Laws Needed?
Following the murders of Byrd Jr. and Shepard, the debate as to whether the United States needed new or updated hate crime laws began in earnest. While local and state law enforcement officials successfully brought Byrd Jr. and Shepard’s killers to justice, they did so by applying traditional state murder statutes that did not include a mandate to prove the bias motivation in order to obtain a conviction. In both cases, investigators probed the motive behind the vicious attacks, but they did not need to present evidence establishing motive for the juries to convict.
Advocates of hate crime laws, however, generally subscribe to the notion that society should not tolerate violence perpetrated against an individual because of that person’s race, religion, national origin, gender, gender identity, sexual orientation, or disability. There is inherent value in prohibiting conduct that harms someone because of that person’s immutable characteristics. The foundation of a safe society is created when everyone is accepted and valued for who they are. Differences are welcomed and encouraged, not punished. Moreover, hate crimes and hate incidents do not simply traumatize the direct victim; the trauma often spreads to the victim’s neighborhood, community, friends, and family. If governments penalize these types of crimes, this sends a signal to all communities that bias-motivated violence will not be tolerated. Additionally, law enforcement authorities need to be aware of threats within their jurisdiction. If there is an individual or group targeting minorities, police agencies need to know who they are to be able to stop the threat and foster a safe and welcoming community.
Opponents of hate crime laws point to the Byrd Jr. and Shepard cases and accurately claim that that the perpetrators were tried and convicted for murder and received just punishment for their actions. There was no need to search for, obtain, and present evidence establishing the bias motivation, and, in fact, doing so would have put an unnecessary burden on the police departments and prosecutors. Furthermore, these opponents argue, governments should not separate people into groups and protect some but not others with “special” rights.
While the debate continues, it seems that the advocates of hate crime statutes have strong support. Forty-five state legislatures as well as the U.S. Congress ultimately passed some form of hate crime statute. Although each law differs in terms of definitions, the conduct that is prohibited, the scope of protected classes, and even whether the law is a stand-alone criminal statute or a sentencing enhancement to other criminal laws, the intent of these laws is clear. Bias-motivated violence will be punished.
Federal Hate Crime Laws in 1998
Despite the high-profile nature of the Byrd Jr. and Shepard cases, the individuals responsible were not investigated and prosecuted by the Federal Bureau of Investigation (FBI), but rather, by local law enforcement officials. The FBI was constrained from taking the lead in the investigation by the provisions of the existing U.S. federal hate crime law in effect in 1998. The statute available to them, 18 U.S.C. §245, authorized the FBI to investigate violent crimes committed against someone based on his race as in the case of Byrd Jr., but mandated that the FBI prove that the perpetrator targeted the victim because he or she was engaged in a federally protected activity. The FBI would have had to prove that the perpetrators targeted and killed Byrd Jr. because he was African American and because he was enjoying a specifically listed federal right such as voting or serving on a jury. The facts of the case did not indicate a clear violation of this federal hate crime law. Similarly, the FBI lacked the authority to investigate Shepard’s murder because §245 did not include sexual orientation as a protected class. Although the FBI did provide substantial resources to augment the local investigative efforts, their jurisdiction was limited.1
Several determined members of the U.S. Congress including Senators Edward Kennedy and Gordon Smith and Representative John Conyers, as well as law enforcement groups including the International Association of Chiefs of Police, advocated for many years to pass a new federal hate crime bill that would ease or eliminate the restrictions in §245 and include protections for the LGBT community and individuals with disabilities. Additionally, there was a push to prohibit violence motivated by gender bias or a person’s gender identity. After years of defeat, Congress finally passed the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act in 2009, which U.S. President Barack Obama signed into law. This historic civil rights legislation, codified as 18 U.S.C. §249, gave the FBI wide latitude to investigate hate crimes without the barriers included in §245. This law most notably allowed the FBI to investigate violent crimes motivated by bias against a person’s sexual orientation, gender, gender identity, or disability, in addition to the classes protected under the earlier law.2
State Hate Crime Laws
In the immediate aftermath of the deaths of Byrd Jr. and Shepard, state legislatures were inundated with requests from lobbyists, non-governmental organizations, community groups, and others to pass hate crime laws or revise existing statutes to include more protected classes or at least include a sentencing enhancement provision addressing the bias motivation. While it is well accepted that the term “hate crime” or “bias crime” was more broadly used by academics and journalists beginning in the 1980s, jurisdictions differed as to how they defined the terms and used the terms to enact criminal laws. Although some states including Oregon and Washington had already passed hate crime laws in the early 1980s, and California’s hate crime law included protections for the LGBT community in the mid-1980s,3 there was little uniformity across the United States regarding the existence or specifics of hate crime statutes.
As a result of the murder of Byrd Jr., however, the Texas legislature passed a hate crime statute bearing his name that was signed into law by Governor Rick Perry. The state of Wyoming, however, did not respond in kind regarding Shepard’s murder. In subsequent years, additional states passed new hate crime laws or revised their existing laws to provide protections for the LGBT community and other minority groups. In cases where the state governments failed to act, many cities and towns enacted non-discrimination ordinances to demonstrate their intolerance of bias-motivated actions. Currently, Wyoming, Georgia, South Carolina, Arkansas, and Indiana are the only states without criminal hate crime statutes in effect.4
Hate Crime Training and Enforcement
Sadly, the murders of Byrd Jr. and Shepard are not the only tragedies related to bias and hate, but other bias-related crimes have continued to spark changes and additions to U.S. state and federal criminal laws. There have been thousands of other victims of religious bias, disability bias, race bias and ethnic bias throughout the United States who were targeted for harassment and violence before and after 1998. For many of these cases, family members and advocates have rallied behind the changes in state and federal law.
Enacting hate crime laws was the first step. Training law enforcement officials to enforce these new criminal statutes was the necessary second step. Without sufficient training, officers and prosecutors not only would be unfamiliar with their state’s new law, but also would not have the knowledge or skills to enforce it.
Within a few months after the passage of §249, the FBI and the Department of Justice’s (DOJ’s) Civil Rights Division Criminal Section organized and executed training seminars in the five states without any hate crime laws to provide instruction to local, state, and federal law enforcement officials and prosecutors on enforcement of this new statute. The federal government’s goal in 2010 was to ensure that if a hate crime occurred in one of these states, law enforcement officials at all levels would at least have a rudimentary understanding of §249 and would be able to assess whether or not the law was applicable to the facts of a particular case. Moreover, if state, local, and federal law enforcement officers train together, they might be more likely to collaborate on investigations. In addition to these five seminars, the FBI and DOJ also provided training in other cities including but not limited to New York City; Los Angeles, California; Seattle, Washington; and Minneapolis, Minnesota.
Furthermore, the FBI provided detailed instruction on §249 to all new agents as part of their overall Civil Rights Program curriculum, and agents assigned to the Civil Rights Program in each field division were trained at the yearly Civil Rights Conference on how to apply this new law if faced with a credible hate crime complaint. Similarly, DOJ provided training to all federal prosecutors charged with enforcing civil rights laws as part of their biennial Civil Rights Conference.
The federal government had a relatively small group of individuals to train. State governments (excluding the five without hate crime statutes) had thousands of law enforcement officers to train on their own hate crime statutes, which presented significant challenges. As ProPublica reported in 2017, only 12 states require that their police academies provide instruction to officers on the topic of hate crimes, and, in 7 other states, recruits are not required to learn about hate crimes.5 Each state’s police academy curriculum is different in terms of which topics are given attention or priority, and the instructors are constantly updating their materials to include new information and data. While the authors of the article cast blame for the lack of hate crime training on a variety of factors, they also identify the lack of hate crime reporting by victims as another problem. If victims of hate crimes do not notify the police, then the police department incorrectly concludes that no hate crimes have been committed, and, thus, understandably, they will not devote significant time in their training academies to teach how to enforce crimes that are not occurring.
Proposed Solutions
Law enforcement agencies generally operate under the premise that they and the individuals they are sworn to serve and protect need to trust each other. If the community trusts the police to do the right thing, then the community will share information with law enforcement and report criminal activity because they believe that the department and its officers will respond appropriately. The victim will be treated with respect, the incident will be investigated, and the process will be transparent.
On the other hand, if individuals fear the police or if they believe that the police department is corrupt, incompetent, or indifferent to their problems, victims will choose not to report alleged violations of the law. Fear and distrust will spread throughout the neighborhoods, police officers will be unaware of the threats in their own jurisdictions, and the community will not be safe. In short, each city, town, county, and community need to establish mutual trust with their law enforcement agencies. If trust is established before a hate crime occurs, the victim will feel safe in reporting the crime, the police will investigate the incident, the victim and the affected community will feel valued and protected, and the police can address a present threat to their residents. Mutual trust equals a safe community for all.
Herein lies the biggest barrier, but also the biggest solution to the problem with reporting and prosecuting hate crimes. How does a law enforcement agency establish trust?
• Provide hate crime training to new recruits and onboarding officers or mandate that they receive this training from an outside vendor or organization.
• Designate a liaison officer to partner with minority groups. Many departments have designated LGBTQ liaison officers, for example, that serve as the point of contact for that community.
• Dispatch an officer to attend significant events in the community. Officers should attend a religious service at a Jewish synagogue, for example, when there is not a crisis or a memorial service following a tragedy.
• Consider allowing officers to march in parades, such as those that celebrate a particular ethnic minority, like the Puerto Rican Day parade in New York City.
• Report their hate crime data to the FBI to demonstrate their commitment to hate crimes enforcement to the individuals they serve.
Criminal behavior motivated by hatred is unfortunately a growing, not declining, threat to public safety. But it is not inevitable. Improved awareness, training, protocols, and public transparency are proven methods for reducing this threat. Conscientious public safety professionals must prioritize their adoption and employ them to maximum effect. Willing partners in the nonprofit and academic communities await their call. d
Notes:
1 Federally Protected Activities, 18 U.S.C. §245.
2 Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, 18 U.S.C. §249 (2009).
3 National Institute of Justice, “Hate Crime,” November 14, 2018; California Penal Code §422.55.
4 National Association for the Advancement of Colored People, Washington Bureau, “Hate Crime Laws by State,” 2017.
5 A.C. Thompson, Rohan Naik, and Ken Schwencke, “Hate Crime Training for Police Is Often Inadequate, Sometimes Nonexistent,” ProPublica, November 29, 2017.
Please cite as
Cynthia M. Deitle, Esq., “The Legacies of James Byrd Jr. and Matthew Shepard: Two Decades Later,” Police Chief Online, March 6, 2019.
