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Federal hate crime laws have been remarkably ineffective for decades

On February 23, 2024, Daqua Lameek Ritter was found guilty of a hate crime for the murder of Dime Doe, a transgender woman from South Carolina who was believed to be in a relationship with Ritter.

The ruling marks both the first trial and conviction of a hate crime based on gender identity among the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009.

According to the law, hate crimes are “acts of violence motivated by a victim’s actual or perceived race, color, religion, national origin, sex, sexual orientation, gender identity, or disability.”

Between 2013, the year the FBI first began monitoring hate crimes motivated by gender identity, and 2022, the bureau recorded 1,969 hate crimes against transgender and gender-nonconforming people, including an increase in 2022.

Ritter’s trial reflects the low number of prosecutions for all hate crimes. Between 2005 and 2019, federal prosecutors investigated 1,878 hate crime suspects, resulting in 310 prosecutions and 284 convictions for violations of hate crime laws.

I am a historian studying the development of hate crime activism in Australia, Europe and the US. My research has found that hate crimes legislation is strikingly ineffective at preventing violence through the production of convictions, as evidenced by the fact that it took 15 years to produce a conviction based on gender identity under federal law .

The legislation was hailed at the time by leading gay rights activist Joe Solmonese as “our country’s first major piece of civil rights legislation” for LGBTQ people. But it was not, as many believe, the result of unequivocally progressive impulses. Instead, it emerged from an unexpected convergence of gay and civil rights causes and a Reagan-era war on crime.

Four people in the front of a room, three of whom are in tears.
During a ceremony at the White House on October 28, 2009, marking the approval of the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, President Barack Obama stands with family members of both Shepard and Byrd.
Saul Loeb/AFP/Getty Images

Hate crime statistics

Throughout the 20th century, people with same-sex desire and gender nonconformity were often subjected to violence and harassment by police. Although early anti-violence initiatives from the 1970s provided some protection, LGBTQ people had few legal options.

In 1980, 29 states still had anti-sodomy statutes on the books, and LGBTQ activists faced backlash against the limited gains of the 1970s. The election of Ronald Reagan in 1980, supported by the rising religious right, anchored this resistance in national politics. It also led to two important consequences for LGBTQ politics.

First, medical coverage of what would become known as AIDS among several gay men in 1981 established a lasting link between homosexuality and fatal diseases, leading to a further resurgence of homophobia.

Second, concerns about a national crime wave have led many to support the Reagan administration’s tough-on-crime approach, including expanded policing and harsher sentences.

The claims of a national crime wave were based on data collected from the FBI’s Uniform Crime Report. The program began in 1930 and collected data voluntarily submitted by local and state law enforcement agencies.

However, discrepancies between regional jurisdictions, the inability to detect crimes not reported to the police and inefficient data collection procedures, among other things, led to questions about whether the system accurately reflected national trends.

More detailed system

In the early 1980s, the FBI and several other law enforcement agencies began modernizing the Uniform Crime Reporting Program. The combined efforts of the agencies over the past decade resulted in an FBI-managed system in 1989 that transitioned from summary reporting to more detailed, incident-based reporting.

In 1986, at the height of the AIDS crisis and amid national concerns about violent crimes, gay activists Kevin Berrill of the National Gay and Lesbian Task Force, then the nation’s largest gay rights group, and Diana Christensen of San Francisco’s Community United Against Violence, testified before Congress about violence against gays. Together they argued that such violence constituted a “second epidemic” after AIDS. Active data collection was essential to tackle violence. Hate crime statistics collection legislation under consideration at the time excluded consideration of sexual orientation, requiring revision before passage in Congress.

Statistics alone were not enough. According to Berrill and Christensen, about 80% of anti-gay attacks were not reported to police, and those that were reported were often dismissed. The activists recommended “tougher laws” that would allow federal prosecution if local authorities failed to do so. Berrill’s organization further “commends the Reagan administration” for its concern for victims of violent crime, and called on “federal, state, and local agencies dealing with crime and its victims” to study and investigate anti-gay violence prevent.

These arguments were successful. Aided by even more civil rights organizations, the Hate Crime Statistics Act was passed by Congress with widespread support and signed into law by Reagan’s successor, President George HW Bush, in 1990. The law defined “hate crimes” as “crimes that demonstrate prejudice based on race, religion, sexual orientation, or ethnicity” and authorized the attorney general to begin collecting data on such crimes.

The Hate Crime Statistics Act was the first update to the revised Uniform Crime Reporting Program to add bias as a motivation. While this was based on informed prevention efforts, hate-motivated violence was also made a federal criminal category.

And that laid the foundation for future tough crime legislation.

Excerpt from a 1992 press release from the National Gay and Lesbian Task Force on the federal government's poor response to hate crimes.
Excerpt from a 1992 press release from the National Gay and Lesbian Task Force on the federal government’s poor response to hate crimes.
University of North Texas Libraries

Comprehensive hate crime laws

The new law provided funding only for collecting statistics, not for policing and prosecuting crimes.

Law enforcement agencies were asked to provide data on a voluntary basis. That meant data may not have been provided, given the documented problem of anti-gay bias in law enforcement. Activists in some cities, including San Francisco, New York and Dallas, were able to work with individual police officers on violence prevention initiatives. But the national effort has been patchy at best, hampered by Republican opposition.

However, in 1993, the Hate Crimes Sentencing Act, which established federal sentencing guidelines for hate crimes, was added to the bipartisan Violent Crime Control and Law Enforcement Act pending in Congress. That legislation, passed in 1994, increased funding for police departments, law enforcement agencies and correctional facilities. It has been criticized for expanding America’s prison systems and promoting punitive responses to crime.

With the Hate Crimes Sentencing Act attached to what was the largest crime bill in US history, it became the symbol of a bipartisan era of tough-on-crime.

Prosecuting hate crimes

In 1998, the highly publicized murders of Matthew Shepard, a gay college student in Wyoming, and James Byrd Jr., a black resident of Jasper, Texas, launched a renewed push to expand federal authority to prosecute hate crimes, rather than simply data to collect or draw up guidelines for sentencing.

In 2001, the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act introduced in Congress. Republican and conservative opposition prevented the law from passing until 2009. It expanded federal jurisdiction over hate crimes and allocated additional funding to local police departments and courts to investigate and prosecute hate crimes.

The law included gender identity as a protected category, theoretically making it applicable to crimes against any LGBTQ+ person. It was under this law that Ritter was convicted of the murder of Dime Doe, a transgender woman.

The law is ineffective in collecting data and imposing sanctions. Not only was the first federal conviction for a hate crime based on gender identity 15 years after the law was introduced, but hate crimes are also generally subject to chronic underreporting.

In 2022, the FBI reported 11,634 crimes classified as hate crimes. Although the FBI explains that the Uniform Crime Report is not exhaustive, some researchers have indicated that the system specifically underreports data on hate crimes. In 2022, approximately 80% of participating agencies reported zero hate crimes, which differs from other reputable data sources.

In short, and as researchers continue to emphasize, the expansion of national criminal law since 1990 has yet to prove effective in preventing hate crimes and other violence.

Christopher Ewing, assistant professor of history, Purdue University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Christopher Ewing is an assistant professor of history at Purdue University.