Few Federal Hate Crime Referrals Result in Prosecution
The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act (18 USC 249) was passed by Congress in 2009. Despite around 50 criminal referrals each year to federal prosecutors for these hate crimes, few have resulted in actual charges filed in federal court. During the Trump Administration, the number of federal prosecutions under this statute have become even rarer. Only 6 prosecutions were reported each year for FY 2017 and FY 2018. The latest data covering the first nine months of FY 2019, record only 4 hate crime prosecutions thus far. See Figure 1.
Figure 1. Federal Prosecution of Hate Crimes under 18 USC 249
(Click for larger image)
While press reports suggest the El Paso shooter could face federal hate crime charges, the last actual prosecution under 18 USC 249 occurred in Utah. According to a statement from the United States attorney's office, the indictment alleges that Alan D. Covington walked into a tire store in Salt Lake City in November 2018, shouting that he wanted to "kill Mexicans" and then attacked three individuals with a metal pole.
Examining the Broader Landscape of Federal Hate Crimes
The 2009 Act, while expanding federal protections, joined earlier hate crime legislation on the federal books. The first (18 USC 241) passed in 1968 "made it a crime to use, or threaten to use, force to willfully interfere with any person because of race, color, religion, or national origin when the person is participating in a federally protected activity." A second act passed the same year made it a crime to interfere with the right to fair housing (42 USC 3631). Legislation in 1988 and in 1996 expanded criminal sanctions to other types of hate crimes under 18 USC 245 and 247.
Examining this wider scope of federal hate crimes under all five statutes, there have been just under 2,000 hate crime referrals since FY 2009. Only 15 percent have resulted in federal prosecutions. See Appendix Table. During the first 9 months of this fiscal year, there have been 99 referrals that U.S. attorney offices acted upon. Only 17 of these resulted in a federal prosecution. Long term trends between FY 1986 and FY 2019 (through June) are shown in Figure 2. Despite the renewed public attention being given to the commission of hate crimes, referrals to the federal government under hate crime statutes have actually been falling. Available records going back to FY 1986 indicate that 1,000 or more hate crime referrals occurred in these earlier years.
Figure 2. Federal Prosecution of Hate Crimes
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The Federal Bureau of Investigation, sometimes as part of joint state and local task forces, have usually taken the lead in making these referrals to federal prosecutors. Of the 99 referrals to federal prosecutors that have been made thus far in FY 2019, 88 were referred by the FBI. See Table 1.
Hate referrals come from all regions of the country. Just during the first nine months of FY 2019 half (45) of U.S. Attorney offices have been called upon to decide whether to accept the referral and prosecute a case. Only 13 of these offices decided to proceed and charge the defendant. All of the remaining offices closed the hate crime referral without bringing charges. See Table 2.
Table 1. Federal Prosecution of Hate Crimes
by Lead Investigative Agency, FY 2019 (through June)*
Table 2. Federal Prosecution of Hate Crimes by Judicial District,
FY 2019 (through June)*
 Annual referral and prosecution counts are reported in the Appendix table following this report. For an earlier June 2015 TRAC report on federal hate crime convictions see "Convictions in Federal Hate Crime Cases Since FY 2010". Annual referral and prosecution counts are found in the Appendix table.
Appendix Table. Federal Prosecution of Hate Crimes: Prosecutions Filed vs. Referrals Closed Without Prosecution*
TRAC offers free monthly reports on program categories such as white collar crime, immigration, drugs, weapons and terrorism and on selected government agencies such as the IRS, FBI, ATF and DHS. For the latest information on prosecutions and convictions, go to http://trac.syr.edu/tracreports/bulletins/. In addition, subscribers to the TRACFed data service can generate custom reports for a specific agency, judicial district, program category, lead charge or judge via the TRAC Data Interpreter.