What Constitutes a Hate Crime? Justice Department Considers Hate Crime Charges in Ahmaud Arbery Case

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The recent killing of a Black jogger in Georgia by two white men has sparked conversations about hate crimes in the United States, where all but four states have hate crime laws. Ahmaud Arbery’s death has also renewed calls in Georgia to enact harsher penalties for crimes motivated by bias against a victim’s race, ethnicity, religion, gender or sexual orientation.

Gregory McMichael, 64, and his son, 34-year-old Travis McMichael, were arrested and charged with murder and assault in Arbery’s death. The Civil Rights Division of the Department of Justice announced on May 11 that the department was “assessing all of the evidence to determine whether federal hate crimes charges are appropriate,” spokesperson Kerri Kupec tweeted.

While a federal hate crimes law has been in place since 1968, state-wide laws against hate crimes are a completely different story. In 1998, University of Wyoming student Matthew Shepard was horrifically beaten, tortured and left to die by two men he met at a bar because he was gay. At the time, just Minnesota and the District of Columbia had laws regarding hate crimes against LGBTQ people, CNN reported.

Fast forward 20 years to 2018, 15 states still did not address sexual orientation or gender identity in their hate crimes.

There are also four states in the country that do not have a hate crimes law in the books: Arkansas, Georgia, South Carolina and Wyoming. The Anti-Defamation League (ADL) also lists Indiana as not having hate crimes protections. Indiana signed a hate crimes legislation into law in April 2019, but the ADL told The Associated Press (AP) the measure does not meet its standard for a hate crimes law.

States With No Hate Crime Laws

In August 2019, Arkansas Governor Asa Hutchinson said his state should enact laws that give harsher penalties for those who commit crimes against others due to their race, ethnicity or religion, the AP reported. The Republican governor called for the legislation just days after a white gunman killed 22 people at an El Paso, Texas Walmart.

Hutchinson also told reporters that he would support harsher penalties for individuals who target someone for their sexual orientation or gender identity. “People should not be targeted for who they are,” Hutchinson said. “That constitutes a crime of hate and they should not be targeted for it, and there should be enhanced penalties for it.”

Georgia is a unique case among the states without hate crimes laws because it used to have a law on the books. In 2004, the Georgia Supreme Court struck down a 4-year-old hate crimes measure by declaring it was “unconstitutionally vague.”

According to The Atlanta Journal-Constitution, a new measure passed the Georgia House by a 96-64 vote in 2019. However, the measure was held up by conservatives in the state Senate who questioned whether the law was even necessary.

Lawmakers in South Carolina are eager to enact a hate crimes law and implement harsher penalties for crimes motivated by a victim’s race, color, creed, religion, gender, age, national origin, sexual orientation or disability.

Five lawmakers filed a bill in November 2019 to do just that. The bill would punish a person convicted of a hate crime to an additional fine up to $10,000 and an additional penalty of up to five years, WPDE reported.

The state of Wyoming had the chance to enact a hate crimes law in 1999 shortly after the brutal 1998 murder Matthew Shepard. However, that effort and all those state-level efforts have failed. CNN reported in 2018 that although the state has failed to pass protective measures, several cities in Wyoming have stepped up.

Will Georgia Enact Hate Crime Legislation?

The recent slaying of Black jogger Ahmaud Arbery has certainly pushed Georgia lawmakers to heed calls for state hate crimes laws. Georgia State Representative Calvin Smyre, cosigner of a new hate crime bill, is hoping Arbery’s killing will force lawmakers to enact the measure.

“It’s unfortunate that it’s times like these that these types of incidents causes us to act,” Smyre said, according to NPR. “To me, that’s an abdication of our responsibility as state legislators.”

House Bill 426, Georgia’s latest hate crime proposal, has the support of the state house but needs the approval of the state’s senate. Georgia’s legislature is on break since March due to the coronavirus pandemic and will likely return sometime in June. Smyre told NPR that when state senators do return, they’ll have just over a week to act on the measure.

Georgia Governor Brian Kemp, who called for a “swift and thorough investigation” into Arbery’s death, told the Atlanta Journal-Constitution that he knows there are talks about hate crimes legislation. “We know conversations about legislation are already underway, and we will work through the process when the General Assembly reconvenes,” Kemp said.

Kemp’s office did not immediately respond to The North Star’s request for additional comment.

Hate Crimes at the Federal Level

The first federal hate crimes law was passed by Congress and signed into law by President Lyndon B. Johnson in 1968. That statute made it illegal to use or threaten to use force “to willfully interfere with any person because of race, color, religion, or national origin.” According to the Department of Justice, that same year, Congress made it illegal to use or threaten to use force to interfere with housing rights due to the victim’s race, color, religion, sex or national origin. Protections regarding familial status and disability were added in 1988.

In 1996, the Church Arson Prevention Act made it a crime to deface, damage or destroy religious property.

Twenty years after Matthew Shepard was brutally murdered in Wyoming, the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act was passed by Congress and signed by President Barack Obama in 2009. The new measure expanded the federal definition of hate crimes, removed existing jurisdictional obstacles to prosecutions of certain race and religious motivated violence, and added federal protections against crimes motivated by gender, disability, gender identity or sexual orientation.

Hate Crimes by the Numbers

  • 2,026 law enforcement agencies—of 16,039 that participated in the Hate Crime Statistics Program—reported 7,120 hate crime incidents involving 8,496 offenses. (FBI)

  • Of the 7,036 single-bias incidents reported in 2018, 57.5 percent were motivated by race/ethnicity/ancestry bias, 20.2 percent were prompted by religious bias and 17.0 percent were motivated by sexual-orientation bias. (FBI)

  • Of the 4,954 single-bias hate crime offenses motivated by race/ethnicity/ancestry, 46.9 percent were due to anti-Black bias. Another 20.2 percent were due to anti-white bias and 13 percent due to anti-Hispanic or Latinx bias. (FBI)

  • The FBI recorded 1,550 hate crime offenses motivated by religious bias, of which 57.8 percent were anti-Semitic and 14.5 percent were anti-Muslim. (FBI)

About the Author

Nicole Rojas is a senior writer for The North Star. She has published in various publications, including Newsweek, GlobalPost, IHS Jane’s Defence Weekly, and the Long Island Post. Nicole graduated from Boston University in 2012 with a degree in print journalism. She is an avid world traveler who recently explored Europe, Asia, Australia and the Americas.