Senate Adopts Matthew Shepard Hate Crimes Prevention Act as Defense Authorization Amendment

An amendment offered by Senator Pat Leahy (D-VT) to the National Defense Authorization Act (S. 1390) has been adopted by a vote of 63 to 28.  The vote actually took place on a procedural (cloture) motion to limit debate on the measure, but under a unanimous consent agreement it was subsequently adopted if cloture was invoked.

The amendment contains the text of the Matthew Shepard Hate Crimes Prevention Act (S. 909).  The bill would “broaden federal hate crimes law to include crimes based on gender, sexual orientation, gender identity or disability,” according to a press release.

As taken from the release, here are the major areas the bill addresses:

Hate Crimes Covered

Existing hate crimes law covers race, color, national origin, or religion, but only where the victim is engaging in one of the following federally protected activities: (1) attending or enrolling in a public school or public college; (2) participating in a benefit, service, privilege, program, facility or activity administered by a state or local government; (3) applying for or working in private or state employment; (4) serving as a juror in a state court; (5) using a facility of interstate commerce or a common carrier; or (6) enjoying public accommodations or places of exhibition or entertainment.  The bill eliminates the outdated “federally protected activities” requirement and expands the federal government’s ability to prosecute crimes targeting victims because of their sexual orientation, gender, gender identity or disability.

Federal Assistance and Training Grants

The bill authorizes the Attorney General to provide technical, forensic, prosecutorial and other assistance to state, local, and tribal law enforcement officials for hate crime investigations and prosecutions.  In addition, the Justice Department is authorized to increase personnel to better prevent and respond to allegations of hate crimes.  The bill also authorizes $5 million for fiscal years 2010 and 2011 for Justice Department grants of up to $100,000 to state, local, and tribal law enforcement officials who have incurred extraordinary expenses associated with investigating and prosecuting hate crimes.  Finally, the bill authorizes grants by the Office of Justice Programs to state, local, and tribal programs to combat hate crimes committed by juveniles, including programs to train local law enforcement officers in identifying, investigating, prosecuting, and preventing hate crimes.

Certification Requirement

The bill authorizes the federal government to step in when needed, but only after the Justice Department meets the certification process outlined in the bill.  The Justice Department must certify that the state in which the hate crime occurred either does not have jurisdiction; has asked the federal government to assume jurisdiction; a state prosecution has failed to vindicate the federal interest against hate-motivated violence; or a federal prosecution is in the public interest and necessary to secure substantial justice.  In other words, rather than take over cases that would normally be pursued at the state or local level, the bill will provide a federal backstop for state and local law enforcement to deal with hate crimes that otherwise might not be effectively investigated and prosecuted, or for which states request assistance.

Collection of Statistics

Currently, the FBI collects statistics on hate crimes based on race, color, national origin, religion, and sexual orientation.  This bill increases the federal government’s ability to monitor hate crimes by including statistics on gender and gender identity-based hate crimes, as well as hate crimes committed by juveniles.

It appears unlikely at this time that the amendment will be taken out when the underlying defense bill goes to conference.

Update (10/28): This legislation has been signed into law by President Obama.

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