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LEGISLATION

I. Current Federal Law Addressing Hate Crimes [1]

Federal hate crime laws do not currently include homeless individuals as a protected class.  However, these laws form the backdrop for proposed expansions in federal hate crime law and serve as a template for reform proposals in the states.  Three federal statutes are relevant. 

The 1968 Civil Rights Act, 18 U.S.C. § 245, establishes a number of criminal penalties for the use of force or intimidation to prevent the free exercise of civil rights on the basis of race, color, religion or national origin.  The Act provides penalties for whoever, “by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with” another (1) “because of” that person’s “race, color, religion or national origin,” and (2) “because [that person] is or has been” attending a public school, serving as a juror in state court, traveling in a facility of interstate commerce, making use of a public accommodation, seeking or taking employment, or making use of the benefits of any state program.  Id. § 245(b) (2).  The Act also establishes penalties for whoever, “by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with” another person for (1) “participating” in federal programs or civil duties “without discrimination on account of race, color, religion or national origin,” or (2) “affording another person or class of persons opportunity or protection to so participate.”  Id. §245(4) (A), (B).

State and local law enforcement agencies are expressly authorized to enforce the Act.  Federal prosecutions are also permitted, although these require “the certification in writing of the Attorney General, the Deputy Attorney General, the Associate Attorney General, or any Assistant Attorney General specially designated by the Attorney General that in his judgment a prosecution by the United States is in the public interest and necessary to secure substantial justice….”  18 U.S.C. §245(1).

The 1990 Hate Crime Statistics Act [1], codified as a note to 28 U.S.C. § 534, requires the Attorney General to collect data on certain “crimes that manifest evidence of prejudice based on race, religion, disability, sexual orientation, or ethnicity, including where appropriate the crimes of murder, non-negligent manslaughter; forcible rape; aggravated assault, simple assault, intimidation; arson; and destruction, damage or vandalism of property.”  The Act also directed the Attorney General to establish guidelines for the collection of such data.  The Attorney General delegated this task to the F.B.I., which has defined a hate crime as a “bias crime”—that is, a crime “committed against a person or property which is motivated, in whole or in part, by the offender’s bias against a race, religion, disability, sexual orientation, or ethnicity/national origin.” [2] Under these guidelines, crimes based on bias should be reported to the FBI by local law enforcement agencies if there is objective evidence that the crime was motivated wholly or partially by bias. [3]  The guidelines themselves provide a non-exhaustive list of twelve factors that might be considered “objective evidence” that the offender was motivated by bias. [4]

The Violent Crime Control and Law Enforcement Act of 1994 [5], codified as a note to 28 U.S.C. § 994, directed the United States Sentencing Commission to “promulgate guidelines or amend existing guidelines to provide sentencing enhancements of not less than 3 offense levels for offenses that the finder of fact at trial determines beyond a reasonable doubt are hate crimes.”  Under guidelines issued under this statute, a “hate crime” is defined as a “crime in which the defendant intentionally selects a victim, or in the case of a property crime, the property that is the object of the crime because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person.” [6] (Emphasis added). 

This is a far narrower definition than applies in the context of the data collection statute.  In order for the enhancement to apply, the court or, in a jury trial, the jury, must find beyond a reasonable doubt that the defendant intentionally selected his or her victim because of the race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of the victim or another person.  If the defendant pleads guilty or no contest, the Sentencing Guidelines recommend that the court finds such facts beyond a reasonable doubt before applying the enhancement.  Id. 

As the Supreme Court has recently made clear, the Guidelines are only advisory and federal sentencing judges are required to take into account other factors when sentencing defendants. [7] The impact of the sentencing enhancement law going forward may therefore be reduced. 

II. Proposed Hate Crime Legislation in the 111th Congress

In 2009, a number of proposals were introduced to expand federal hate crime law.  Two pieces of legislation have been introduced that specifically includes homeless people in hate crime laws.

A. Hate Crime Legislation Directed Toward Crimes Against Homeless Persons
           
In 2009, two hate-crimes bills mentioned the homeless, specifically, so far. H.R. 3419 was introduced on July 30.   This bill seeks to amend the Hate Crimes Statistics Act to include crimes against the homeless.  U.S. Rep. Eddie Bernice Johnson (D-TX) and 13 other U.S. Representatives co-sponsored this bill. The bill was referred to the House Judiciary Committee.

H.R. 262, the David Ray Ritcheson Hate Crime Prevention Act, was introduced by U.S. Rep. Sheila Jackson Lee (D-TX).  The bill provides support to victims of hate crimes. Those victims who lose their jobs due to the attack can claim unemployment insurance. If a victim loses their house, the Secretary of Housing and Urban Development can use grants to provide housing for victims including those who were homeless before the attack and are now in need of assistance because of the attack. 

B. Hate Crime Legislation Directed Toward Crimes Against Other Persons
           
As in sessions of Congress, the bill that has made the most progress toward enactment is the Local Law Enforcement Hate Crimes Prevention Act, known in the Senate as the Matthew Shepard Local Law Enforcement Hate Crimes Prevention Act.  This Act would, among other things, add a new section to the federal code entitled “Hate Crime Acts,” which would create penalties for certain kinds of completed or attempted willful injury against a person because of the person’s actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability. [8]
           
Like the 1968 Civil Rights Act, this legislation would permit federal enforcement, but only if a “certifying” federal official indicates there is “reasonable cause to believe the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability” was a motivating factor underlying the defendant’s alleged conduct; even then, federal prosecution is permitted only after the certifying federal official consults with state or local law enforcement and determines that the state has asked the federal government to assume jurisdiction, has requested the federal government assume jurisdiction, or that a prior state prosecution has left “demonstrably unvindicated the Federal interest in eradicating bias-motivated violence.” [9] 
           
The Local Law Enforcement Hate Crimes Prevention Act would also authorize the Attorney General to provide non-financial assistance, including technical, forensic, and prosecutorial assistance, to state, local, and tribal law enforcement to aid in investigation and prosecution of violent felony crimes “motivated by prejudice based on actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of the victim,” and would authorize $5,000,000 for each of fiscal years 2008 and 2009 to provide federal grants of up to $100,000 per entity per year to state, local, and tribal law enforcement for investigating and prosecuting hate crimes. [10]
           
On April 29, 2009, the House passed the Local Law Enforcement Hate Crimes Prevention Act, H.R.1913. This bill allows federal law to include crimes against people based on a persons’ gender, sexual orientation, gender identity, or disability as a hate crime. The bill will improve the resources of state and local law enforcement agencies to prevent, investigate, and prosecute hate crimes. [11]

On July 24, 2009, the U.S. Senate approved S. 1390, the Department of Defense Authorization legislation-and the vehicle for the Matthew Shepard Hate Crimes Prevention Act (HCPA) by a vote of 87 to 7.   The next step is a conference between the House and Senate to reconcile their different versions of this legislation.
           
In 2009, H.R. 823, introduced by U.S. Rep. Carolyn Maloney of New York (D-NY), would amend the Hate Crime Statistics Act to add crimes based on gender to the types of crimes on which the FBI is obligated to collect hate crime data. 
           
III. Adopted City/County/State Legislation/Resolutions Directed Toward Crimes Against Homeless Persons
           
Four states, four cities, and Puerto Rico have enacted laws addressing hate crimes against homeless persons.  First, in 2004, California passed a law requiring the Commission on Peace Officer Standards to develop a two-hour telecourse to be made available to all law enforcement agencies in California on crimes against homeless people and how to deal effectively and humanely with homeless people, including those with disabilities.  The telecourse is to include information on multi-mission criminal extremism, which includes crimes committed in whole or in part because of the victims’ actual or perceived homelessness.  In developing the telecourse, the commission is to consult subject-matter experts including, but not limited to, homeless and formerly homeless person in California, homeless service providers and advocates for homeless people in California, experts on the disabilities that homeless people commonly suffer from, the California Council of Churches, the National Coalition for the Homeless, the Senate Office of Research, and the Criminal Justice Statistics Center of the California Department of Justice. [12]

In 2006, the Maine Legislature amended its criminal code to permit courts to take into account for sentencing purposes a defendant’s selection of a victim or target property because of the “homelessness of that person or of the owner or occupant of the property.” [13]  This was the first discretionary hate crime law to include homeless people. It is at the discretion of the judge to determine if the crime was of hate and if the perpetrator should receive a harsher punishment.

In 2007, Puerto Rico passed legislation that was designed to give much needed support to homeless people. Encompassed in this law, is a section emphasizing that homeless people should not be discriminated against for any reason. Anti-discrimination will be addressed through the creation of a council (Multi-Sector Homeless Population Support Council) that will take action to support homeless individuals [14].

In 2008, Alaska enacted SB 211.   This bill added homeless status to an existing law creating more protection for vulnerable populations. [15]

On May 7, 2009, Maryland SB 151 was signed into law by Governor O’Malley [16]. This bill adds the homeless as a protected class to its hate crimes law. It is, officially, the first state in the US to non- discretionally acknowledge attacks against homeless people as hate crimes.  This law takes effect on October 1, 2009.

Finally, four localities adopted city/county wide ordinances to criminalize malicious harassment against homeless individuals.

On December 10, 2007, the Seattle City Council voted unanimously to amend the city’s malicious harassment statute to criminalize particular acts, including malicious and intentional injury or threats against a person, or destruction of or damage to the person’s property, because of the perception that the person is homeless.

On August 12, 2008, Cleveland, OH passed an ordinance dictating that repercussions for “intimidating” or harassing a homeless person due to their status would be more severe [17].
 
In March of 2009, the Los Angeles Board of County Supervisors unanimously passed a resolution requesting the following from the Human Relations Commission: incorporate awareness of homelessness into high school and youth programs to encourage respect and humanization of the homeless, create trainings for law enforcement to investigate crimes against the homeless with an eye out for evidence of bias or discrimination against the victim due to disability, track crimes of hate against the homeless in the Commissions database and monitor trends to educate the community, encourage the Sheriff, District Attorney, and city/county prosecutors to track and report crimes against homeless people to help in developing actions to prevent and stop these violent acts, and finally to work with all Human Relations Commissions across the county to create better practices and data collection. [18]

The Washington, DC City Council approved a bill adding homeless people to its hate crimes law.  It was signed into law by the Mayor on August 6, 2009.


IV. Proposed State and City Laws Directed Toward Crimes Against Homeless Persons

In 2009, five states—California, Florida, Ohio, South Carolina, and Texas—considered adding homeless individuals to categories of persons protected by state hate crime statutes. [19] Although the details and scope of the proposed legislation in each state/city differs, each proposal, if enacted, would result in enhanced penalties for crimes based on the victim’s “homelessness” or “homeless status.” The legislation in California, South Carolina and Florida is still pending. The legislation in Texas and Ohio has failed. Massachusetts, Ohio, and Nevada introduced bills in  2007 and 2008, but did not succeed in passing them, and currently have not introduced any new versions.
           
In addition, some of the states’ proposals would have gone further.  For example, the Nevada bill would have given victims of hate crimes who are injured the ability to recover punitive damages and attorney’s fees from the perpetrator in addition to the ability to collect actual damages; [20] it also would have added “status of a homeless person” to the state’s hate crime statistics reporting system. [21]

 

Footnotes:

1. 12 Pub. L. No. 101-275, Apr. 23, 1990, 104 Stat. 140, as amended Pub. L. No. 103-322, § 320926, Sept. 13, 1994, 108 Stat. 2131 (inserting “disability”); Pub. L. No. 104-155, § 7, July 3, 1996, 110 Stat. 1394 (reauthorizing the Act).  The Act directs the Attorney General to use authority granted under 28 U.S.C. § 534 to acquire hate crime data.

2. U.S. Dept of Justice, Fed. Bureau of Investigation, Hate Crime Data Collection Guidelines 2 (1999) [hereinafter Hate Crime Data Collection Guidelines].  Notably, the Act itself refers only to “ethnicity,” however the Department of Justice has interpreted ethnicity to include both ethnicity and national origin.  Id.

3.   Hate Crime Data Collection Guidelines, supra note 2, at 4.

4. Id. at 4-5.  These factors are: (1) the offender and victim are of a different race, religion, disability, sexual orientation, and/or ethnicity/national origin; (2) oral comments, written statements, or gestures indicating bias were made by the offender; (3) drawings, markings, symbols or graffiti indicating bias were left at the crime scene; (4) objects, items, or things indicating bias were used in the commission of the offense; (5) the victim belongs to a racial, religious, disability, sexual orientation, or ethnic/national origin group that is “overwhelmingly outnumbered by other residents in the neighborhood where the victim lives and the incident took place”; (6) the victim was visiting a neighborhood where hate crimes against other members of the victim’s racial, religious, disability, sexual orientation, or ethnic/national origin group occurred and tensions remained high; (7) other similar incidents occurred in the same locality against victims who shared the victim’s group affiliation; (8) “a substantial portion” of the community in which the crime occurred believe the incident was motivated by bias; (9) the victim was engaged in activities promoting his or her group through participation in an advocacy organization or by attending demonstrations; (10) the incident coincided with a holiday or day of importance to the victim’s group; (11) the offender had prior involvement in a similar hate crime or is a member of a hate group; and (12) there are indications of hate-group involvement.  Id. at 5.

5.   Pub. L. No. 103-322, § 280003, Sept. 13, 1994, 108 Stat. 2096.

6. United States Sentencing Guidelines Manual § 3A1.1(a) (2006).   Note, however, that the Sentencing Guidelines only apply in federal court, where the defendant has committed a federal crime, a crime on federal land (including on Indian reservations), or is otherwise subject to penalties under federal law.

7.   See United States v. Booker, 543 U.S. 220, 245-46 (2005) (declaring unconstitutional the statute creating mandatory Guidelines and holding Guidelines should only be applied in an advisory fashion as one of several factors to consider at sentencing); see also Gall v. United States, __ S. Ct. __, 2007 WL 4292116, at *7 (Dec. 10, 2007) (holding the Guidelines’ sentencing range is a starting point for determining a defendant’s sentence, but the district court should not presume the range is reasonable).  The factors the sentencing court must consider are enumerated in 18 U.S.C. § 3553(a)(1)-(7).    

8.   The Act breaks out “offenses involving actual or perceived race, color, religion, or national origin” and “offenses involving actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability.” See, e.g., H.R. 1592, sec. 6(a)(1), (a)(2) (as approved by the House).  In order to legitimize federal action and invoke federal jurisdiction, the bill requires that offenses against individuals in the latter group have a relationship to interstate or foreign commerce, thereby implicating Congress’s power to regulate under the Commerce Clause of the U.S. Constitution.  See H. Rep. No. 110-113 at 14-15 (2007) (explaining bill includes requirement of a nexus between crimes of prejudice based on gender, gender identity, sexual orientation, or disability and Congress’s power to regulate commerce in order to alleviate concerns about the provision’s constitutionality).  The nexus between commerce and offenses based on race/color and interstate commerce is not required, however, because the Thirteenth Amendment to the Constitution has been interpreted to explicitly authorize Congress to regulate violence committed on this basis.  See H. Rep. No. 110-113 at 14.  Finally, religion and national origin are included in both groupings because, “to the extent that there may be open questions regarding the precise contours of the range of circumstances under which the enforcement provision of the 13th amendment authorizes Congress to criminalize hate crimes committed on the basis of religion [and national origin], the legislation has included hate crimes based on religious beliefs [and national origin] in both sections.”  Id. at 15 & n.21.

9. See, e.g., H.R. 1592, sec. 6(b).  “Certifying” federal officials are “the Attorney General, the Deputy Attorney General, the Associate Attorney General, or any Assistant Attorney General specially designated by the Attorney General.”  Id.

10.   The non-financial assistance portion of the legislation provides federal assistance not only for offenses that qualify as hate crimes under federal law, but also for crimes that are “a violation of [] State, local, or Tribal hate crime laws.”  See, e.g., H.R. 1592, sec. 3(a)(C) (as approved by the House).  The potential incorporation of this language into federal law underscores the importance of state- and local-level legislative action.

11. H.R. 1913. The Local Law Enforcement Act, as introduced by John Conyers Jr [R-MI].

12. Cal. Penal Code § 13519.6(b)(6), (7) (2007) (enacted 2004).  Per Section 13519.6, the California Commission on Police Officer Standards and Training requires four hours of training on hate crimes as part of law enforcement officers’ regular basic training course and special investigators’ basic training course, but does mandate the use of a particular curriculum.  See Commission on Police Officer Standards and Training, State of California, Legislative Mandates, http://www.post.ca.gov/Training/Mandates.asp (updated 8/2004).  Note, however, that California’s formal definition of “hate crime” does not include homeless persons as a target classification.  See Cal. Penal Code. § 422.55 (encompassing disability, gender, nationality, race or ethnicity, religion, sexual orientation, and the “association with a person or group with one or more of these actual or perceived characteristics”).  Recent legislative efforts have focused on expanding the definition of hate crimes to include crimes based on homeless status.   See Cal. S.B. 122 (introduced Jan. 22, 2007).

13. Me. Rev. Stat. Ann. Tit. 17-A, § 1151(8)(B) (2006) (enacted 2005).  “Homelessness” is not defined in the Maine Criminal Code.

14. Law 130. Concilio Multisectorial en Apoyo a la Poblacion sin Hogar. Approved September 27, 2007.

15. Aggravationg Factor: Homelessness. Alaska SB 211. Alaska State Legislature. 6/6/08(enacted).  <http://www.legis.state.ak.us/basis/get_bill.asp?bill=SB%20211&session=25>

16. Sponsors: Senators Mooney, Haines, Jacobs, Kittleman, Munson, Simonaire, and Stone. Hate Crimes - Prohibitions and Protected Classes - Expansion to Homeless Persons and Groups and Gender. SB 151. 4/16/09 (enrolled). <http://mlis.state.md.us/2009rs/billfile/SB0151.htm>

17. City of Cleveland Codified Ordinance No. 830-08. Intimidation of a Homeless Person. Passed: 8-6-08, effective: 8-12-08

18. Yaroslavsky and Knabe. Motion By Yaroslavsky and Knabe. Homelessness and Human Relations Committee. AGN. NO. 11. March 24, 2009.

19. The proposed bills are:  California Senate Bill 122, section 1 (amending California Penal Code Sections 422.55 & 422.56, California’s hate crime statute, to add “homeless status” to the list of “actual or perceived” characteristics protected under that legislation); Nevada Assembly Bill 83, sections 1 & 2 (amending Nevada Revised Statutes Sections 193.1675 & 207.185, to add “status as a homeless person” to the state’s statute providing enhanced penalties for hate crimes); Texas Senate Bill 228, section 1.

20. Nevada Assembly Bill 83, sections 1 & 2 (amending Nevada Revised Statutes Sections 193.1675 & 207.185, to add “status as a homeless person” to the state’s statute providing enhanced penalties for hate crimes);  Nev. A.B. 83, sec. 4 (amending Nev. Rev. Stat. § 41.690).

21. Id. sec. 5 (amending Nev. Rev. Stat. § 179A.175).

 

 


CONTENTS: Main page | pdf of full report | Acknowledgements | Dedication | Executive Summary | Purpose, Methodology, and Previous Reports | Introduction | Historical Summary of Hate Crimes/Violence Data for 1999-2008 | Summary of Hate Crimes/Violence Data in 2008 | Summary of Teen/Young Adult Involvement in Hate Crimes/Violent Acts | Summary of Ages of the Accused versus Ages of the Victims | Summary of Victims Who Were Middle-Aged | Cities where Hate Crimes/Violence Occurred in 2008 | Map of Cities where Hate Crimes/Violence Occurred in 2008 | States where Hate Crimes/Violence Occurred in 2008 | Map of States where Hate Crimes/Violence Occurred in 2008 | Cities Where Hate Crimes/Violence Occurred – 1999-2008 | Map of Cities Where Hate Crimes/Violence Occurred – 1999-2008 | Comparison of Hate Crime Homicides vs. Lethal Attacks on Homeless Individuals | National Media Coverage of Hate Crimes/Violent Acts Against Homeless People | Video Exploitation of Homeless People | Recognizing Anti-Homeless Violence as Hate Crime, by Brian Levin | Legislation | Recommendations for Action | Model City/County/State Legislation/Resolutions | Adopted City/County/State Legislation/Resolutions | Public Education Initiatives | Listing of Incidents by City | Case Descriptions Involving Deaths | Case Descriptions Involving Non-Lethal Rape/Sexual Assault | Case Descriptions Involving Non-Lethal Setting on Fire | Case Descriptions Involving Non-Lethal Beatings | Case Descriptions Involving Non-Lethal Shootings | Case Descriptions Involving Non-Lethal Police Harassment/Brutality | Appendix A: Sources | Appendix B: NCH Hate Crimes Public Service Ads |

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