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[1]. 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[2].

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
(Click for larger image)

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)*
Lead Investigative Agency Not Prosecuted Prosecuted Total
Total 82 17 99
Investigative Agency Making Referral
Federal Bureau of Investigation 64 16 80
Joint FBI/State or Local Task Force 7 1 8
Joint State/Local Led Task Force 3 0 3
D.C.-Metropolitan Police Department 3 0 3
Other Defense 2 0 2
Office of the Inspector General - Justice 1 0 1
State Department 1 0 1
State/County/Municipal Authorities 1 0 1
* Under 18 USC 241, 18 USC 245, 18 USC 247, 18 USC 249, and 42 USC 3631.
Table 2. Federal Prosecution of Hate Crimes by Judicial District,
FY 2019 (through June)*
Judicial District Not Prosecuted Prosecuted Total
Total 82 17 99
Alaska 2 0 2
Ark, E 3 0 3
Cal, C 1 3 4
Cal, E 1 0 1
Cal, N 1 0 1
Cal, S 3 0 3
Fla, M 1 1 2
Fla, S 0 1 1
Ga, N 1 0 1
Ga, S 1 0 1
Idaho 2 0 2
Ind, S 0 1 1
Iowa, S 2 0 2
Kansas 1 0 1
Ken, W 0 1 1
La, M 1 0 1
La, W 0 1 1
Maryland 1 0 1
Mass 3 0 3
Mich, E 8 0 8
Mich, W 1 0 1
Mo, E 4 0 4
Mo, W 5 0 5
Montana 1 0 1
N Car, E 2 0 2
N Car, W 1 0 1
N. J. 0 3 3
New Hamp 0 1 1
N Mexico 1 0 1
N. Y., E 1 0 1
N. Y., N 4 0 4
N. Y., S 1 0 1
Ohio, S 0 1 1
Okla, E 1 0 1
Okla, W 2 0 2
Oregon 8 1 9
Penn, W 0 1 1
Tenn, E 1 0 1
Texas, N 3 1 4
Texas, W 3 0 3
Utah 3 1 4
Virg, E 1 0 1
Virg, W 4 0 4
Wash, E 1 0 1
Wisc, E 2 0 2
* Under 18 USC 241, 18 USC 245, 18 USC 247, 18 USC 249, and 42 USC 3631.

Footnotes

[1] 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.

[2] https://www.justice.gov/crt/matthew-shepard-and-james-byrd-jr-hate-crimes-prevention-act-2009-0

Appendix Table. Federal Prosecution of Hate Crimes: Prosecutions Filed vs. Referrals Closed Without Prosecution*
Fiscal Year Federal Prosecutions Filed Referrals Closed Without Prosecution Total Acted On
18
USC241		 81
USC245		 18
USC247		 18
USC249		 42
USC3631		 All Five 18
USC241		 81
USC245		 18
USC247		 18
USC249		 42
USC3631		 All Five
1986 88 1 0 0 4 93 1,149 50 3 0 83 1,285 1,378
1987 54 13 0 0 5 72 935 32 1 0 46 1,014 1,086
1988 26 7 0 0 3 36 1,425 74 3 0 81 1,583 1,619
1989 30 12 0 0 4 46 1,434 77 2 0 37 1,550 1,596
1990 54 11 0 0 7 72 850 66 5 0 40 961 1,033
1991 109 8 0 0 5 122 880 61 3 0 59 1,003 1,125
1992 64 2 0 0 7 73 705 71 6 0 57 839 912
1993 34 4 0 0 6 44 785 67 0 0 47 899 943
1994 43 2 0 0 9 54 823 96 3 0 40 962 1,016
1995 50 11 0 0 13 74 788 64 11 0 48 911 985
1996 67 9 2 0 5 83 649 50 20 0 52 771 854
1997 67 1 1 0 7 76 396 106 82 0 46 630 706
1998 74 2 9 0 4 89 433 161 127 0 43 764 853
1999 61 4 2 0 6 73 498 109 86 0 72 765 838
2000 51 3 9 0 4 67 398 118 45 0 44 605 672
2001 48 9 3 0 5 65 458 149 46 0 53 706 771
2002 17 10 2 0 9 38 343 123 56 0 36 558 596
2003 54 4 0 0 1 59 275 115 27 0 29 446 505
2004 21 12 0 0 3 36 274 89 39 0 26 428 464
2005 9 1 6 0 1 17 176 98 38 0 28 340 357
2006 29 12 0 0 3 44 186 92 33 0 75 386 430
2007 36 2 2 0 1 41 115 36 14 0 35 200 241
2008 22 4 0 0 5 31 129 44 23 0 18 214 245
2009 7 6 3 0 7 23 120 49 14 0 14 197 220
2010 18 2 4 1 2 27 63 56 7 8 20 154 181
2011 18 6 3 6 2 35 104 29 23 35 16 207 242
2012 31 0 2 22 2 57 91 34 11 49 13 198 255
2013 15 0 3 7 4 29 86 24 16 62 17 205 234
2014 13 2 0 9 0 24 75 23 6 49 10 163 187
2015 10 0 0 7 0 17 26 22 12 38 3 101 118
2016 5 1 3 17 0 26 30 23 8 52 7 120 146
2017 12 4 3 6 1 26 37 21 13 46 10 127 153
2018 8 1 1 6 1 17 34 19 16 38 19 126 143
2019 (through June) 7 1 4 4 1 17 23 5 7 41 6 82 99
* For a description of each of these statues see Hate Crime Laws.

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