Houston Criminal Attorney: Federal Hate Crimes Law

With the brutal murder if James Byrd Jr. in June of 1998, the small town of Jasper, Texas was thrust into the national spotlight. Previously known for little more than logging and its proximity to Lake Sam Rayburn, it would suddenly and infamously become synonymous with "...the worst hate crime of the post-civil rights era".
The facts of the case are well known; Byrd, an African-American, was chained to the back of a pickup truck and dragged to death along an isolated logging road. The three men accused and convicted of the crime, Shawn Berry, Lawrence Brewer and John King were white: Brewer and King were members of the white supremacist hate group Aryan Nations. All had prior criminal records.

Based on this knowledge law enforcement quickly contacted the FBI; the 1994 Federal Violent Crime Control and Law Enforcement Act (28 U.S.C. § 994 note Sec. 280003) required the United States Sentencing Commission to increase penalties for federal crimes committed on the basis of the actual or perceived race, color, religion, national origin, ethnicity, or gender of any person. But no federal charges were ever brought; investigators concluded that Byrd 's slaying didn't violate federal hate crime laws because his constitutional rights - such as voting or attending public school - were not at issue in the crime.
John King and Lawrence Brewer were both convicted of capital murder in 1999 and sentenced to death. Brewer was executed by the State of Texas on September 21, 2011, while King remains on death row. Possibly because of a lack of evidence suggesting racist ties, Berry avoided the death penalty and was sentenced to life in prison.

Although Texas had adopted a hate crime data collection law in 1991 in response to the Federal Hate Crime Statistics Act, the program was limited by the narrow scope of information required. The statistics act was followed two years later by the 1993 Texas Hate Crimes Act (article 42.014 of the Texas Code of Criminal Procedure) authorizing enhanced punishment in cases in which the crime was motivated by the offender’s bias or prejudice, and Section 12.47 of the Texas Penal Code provides that the punishment is increased to the next highest category of offense. But the statute was criticized as being vague, overbroad, and virtually unenforceable; its definition of hate crime simply as one that is "committed because of bias or prejudice" left prosecutors with concerns about constitutional challenge.

In the Boyd case, King and Brewer were already charged with Capital Murder (and sentenced to death) so the 1993 statute was irrelevant: there were no higher categories of charge or punishment available. However, the lack of application in Berry's prosecution due to its vagueness and the abovementioned lack of evidence linking him to organized racist groups led several advocacy organizations -including the NAACP- to begin calls for new legislation on both State and Federal levels.

In 1999 State Representative Senfronia Thompson (D, Houston) introduced House Bill 938 - unofficially known as the "James Byrd Jr. Act" in memory of the Jasper murder victim. Unlike previous measures, it would specify which groups would be protected by the law; a feature that added clarity to the existing legislation but also drew complaints that it could violate the free speech and equal protection clauses of the U.S. Constitution. The bill passed in the house, but failed to pass in the senate "in a struggle so emotional and bitter it temporarily shut down that chamber for most of one day. "

At the time George W. Bush was serving as Governor of Texas (1995 - 2000) and concurrently running a Presidential campaign. In referencing his opposition to the bill he stated that Texas already had a hate crimes statute and nothing more was needed; in support of his "tough on crime" stance he also erroneously claimed that all three men indicted in Byrd's death had received the death penalty. Citing a prior commitment, Bush failed to appear at Byrd's funeral, and this combined with his apparent lack of knowledge in a case which was still gripping the nation brought the debate over hate crimes legislation to the forefront of American politics.
In reality Bush’s opposition to the bill reportedly revolved more around language which would include sexual preference as a basis for bias, and which would predictably alienate many of his supporters in the Conservative Christian block: he had supported previous amendments to the 1993 State law in 1995 and 1997.

Beginning in 2001 an expansion to the existing federal hate crime laws was proposed to include crimes motivated by a victim's actual or perceived gender, sexual orientation, gender identity, or disability. Also inspired largely by the Byrd case, it included language very similar to that drafted in the failed 1999 Texas James Byrd Jr. Act.

Again following the national trend, Texas Governor Rick Perry finally signed the Texas James Byrd Jr. Hate Crimes Act (HB 587) into law after narrow passage in the Texas Senate the same year. The new bill expands the definition of "hate crimes" and clarifies that the law applies to race, color, disability, religion, national origin (or ancestry), age, gender or sexual preference when it is determined to be the reason a victim or their property was targeted in a crime. In those cases, the punishment can be enhanced one level under certain circumstances. The bill also provided for a "hate crimes" protective order.

On October 28, 2009 President Barack Obama signed the federal Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, removing the prerequisite that the victim be engaging in a federally protected activity such as voting or going to school; it gives federal authorities greater ability to engage in hate crimes investigations that local authorities choose not to pursue, and it requires the FBI to track statistics on hate crimes based on gender and gender identity as well as for the other subjects already being tracked.

However, hate crime laws remain a subject of debate on both federal and state levels. Arguments have been made that they are redundant, covering crimes that are already addressed by existing laws and therefore offer a constitutional (5th Amendment) infringement due to the possibility of double jeopardy. Others submit that they increase federal government participation in state law enforcement. On the federal level, the American Civil Liberties Union (ACLU) has expressed concerns about the possible negative impact on civil rights, fearing that prosecutors may attempt to introduce statements describing the defendant's beliefs, or organizational memberships. However, the "Rule of Evidence" section in the House version of the 2009 hate crimes bill states:
 "In a prosecution for an offense under this section, evidence of expression or associations of the defendant may not be introduced as substantive evidence at trial, unless the evidence specifically relates to that offense. However, nothing in this section affects the rules of evidence governing impeachment of a witness." 

Many of the primary objections are being raised by conservative Christian groups who fear that inclusion of language recognizing sexual orientation as a basis of bias will "normalize homosexuality" or infringe on freedom of speech in cases where religious leaders condemn what they consider immoral activity. These objections may generally be dispelled by the First Amendment (US Constitution) which clearly covers freedom of speech and supersedes all state legislation.

Since the Texas Legislature adopted the Texas James Byrd Jr. Hate Crimes Act in 2001, prosecutors have only earned convictions on 10 cases according to figures from the state Office of Court Administration. Most have come in plea arrangements: only a single hate crime has been taken to a jury in Texas. There are many reasons that bias based incidents are not prosecuted as hate crimes, ranging from no arrests to crimes driven by complex motives. Additionally, although Texas' bias law can enhance prison terms it still excludes most serious crimes as the range of punishment already goes up to 99 years in prison.

Other sections of the 2001 Texas law have also gone unused: a provision allows for state funds to help prosecutors build hate cases, but no state money has ever been requested. The statute also permits local judges to issue protective orders in cases where a person's safety or property is threatened because of hate, but there are no records of it ever being implemented. Yet the law has appeared to have made a difference in a small handful of Texas cases over the past decade. In July 2004 Thomas Carroll was charged in San Antonio with three counts of arson enhanced by a hate crime; without the bias charge Carroll faced up to 20 years in prison, once it was added the sentence was raised to 99 (Carroll agreed to a 30-year plea deal). In 2005 William Rose was charged with criminal mischief in a road rage incident, punishable by up to two years in jail; because the incident was deemed racially biased he faced up to 10 years in prison and accepted a plea deal of five years. And in 2007 Shervin Mohansingh assaulted a gay man in Harris County; a misdemeanor assault charge which allows for a maximum of 180 days in jail. In January 2008, Mohansingh was sentenced to 200 days due to the hate crime law.

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References:
Hate Crimes; Glen Kercher, Claire Nolasco & Ling Wu: August 2008 Sam Houston State University
Texas hate crime law has little effect; Eric Dexheimer, Austin American-Statesman: Jan. 21, 2012
James Byrd, Jr. Hate Crimes Act Clears Major Hurdle; State Senator Rodney Ellis press release, Feb. 7, 2001
Racist Convicted in Texas Murder; Paul Duggan, Washington Post: Wednesday, Feb. 24, 1999
Media Advisory: Lawrence Russell Brewer scheduled for execution: Texas Attorney General Greg Abbott, Sept. 19, 2011
Bush angers slain man’s family; Jake Tapper, Salon.com: Oct 16, 2000
TDPS Crime Reports 1999 to Present
Hate Crime in Texas: where we've come, where we're going; Texas Civil Rights Project, Oct.1995 
State Hate Crime Laws Seek to Punish Prejudice; Senate Research Center: Feb.1999
76th Texas Legislature / Hate crimes bill gathers momentum / Vote in Texas House expands target groups; John Gonzalez, Houston Chronicle: April 28, 1999
U.S. Hate Crime Laws: Hate crime law arguments pro & con. Civil rights concerns about these laws: Ontario Consultants on Religious Tolerance