LEGISLATION

Current Federal Law Addressing Hate Crimes

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 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 sentencing 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.

Proposed Hate Crime Legislation in the 110th Congress

In 2007, at least eight proposals were introduced to expand federal hate crime law. Two focus exclusively on making "homeless status" a protected category under federal law, while the others would extend hate crime protections to other groups or enhance protections already present in federal hate crime law.

Hate Crime Legislation Directed Towards Crimes Against Homeless Persons

Two bills were introduced that would add "homeless status" to the list of protected classes under existing federal hate crime laws. H.R. 2216, the Hate Crimes Against the Homeless Statistics Act of 2007, would amend the Hate Crime Statistics Act to require the collection of data on crimes that manifest evidence of prejudice on the basis of "homeless status". H.R. 2217, the Hate Crimes Against the Homeless Enforcement Act, would amend the hate crime sentencing enhancement provisions of the Violent Crime Control and Law Enforcement Act to include as eligible for sentence enhancement "a crime in which the defendant intentionally selects the victim . . . because of the actual or perceived . . . homeless status of any person."[8] Both bills were introduced by Representative Eddie Bernice Johnson of Texas

The bills were referred to the House Judiciary Committee, Subcommittee on Crime, Terrorism, and Homeland Security in June, and no further action has been taken.

Hate Crime Legislation Directed Towards Crimes Against Other Persons

As in recent Congresses, 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.[9]

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."[10]

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.[11]

A version of the Act was introduced in the House as H.R. 1592 in March 2007 by Representative John Conyers of Michigan, and was approved by the full House in May 2007 by a vote of 237-180.[12] Senator Edward Kennedy of Massachusetts introduced a companion Senate bill, S. 1105, in April 2007, and, after the Senate failed to act on the stand-alone bill by September, Senator Kennedy offered the substance of the bill as Senate Amendment 3035 to the National Defense Authorization Act (H.R. 1585).  The Senate approved inclusion of the amendment in the defense bill by voice vote, but the House-Senate Conference Committee stripped the hate crime amendment from the final version of the bill.[13]   Further action this year is unlikely.[14]

Three other bills addressing hate crimes have been introduced in the House during the First Session of the 110th Congress, but none has been acted upon since its initial referral to House committees.  H.R. 254, introduced by Representative Sheila Jackson Lee of Texas, includes many of the same elements in the broader Local Law Enforcement Hate Crimes Prevention Act, including the creation of criminal penalties for certain crimes motivated by bias against the actual or perceived race, color, religion, national origin, gender, sexual orientation, or disability of the victim or another person. H.R. 1164, introduced by Representative Carolyn Maloney of New York, 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. Finally, H.R. 1806, sponsored by Representative Eddie Bernice Johnson, would support the creation of programs designed to prevent and reduce the incidence of hate crimes committed by juveniles who are themselves victims of child abuse and neglect.

Existing State Laws Directed Towards Crimes Against Homeless Persons

Two states 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, 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.[15] In 2005, the Maine legislature amended Maine's 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."[16]

Proposed State and Local Laws Directed Towards Crimes Against Homeless Persons

In 2007, six states - California, Florida, Maryland, Massachusetts, Nevada, and Texas - considered adding homeless individuals to categories of persons protected by state hate crime statutes.[17] Although the details and scope of the proposed legislation in each state differs, each proposal, if enacted, would result in enhanced penalties for crimes based on the victim's "homelessness" or "homeless status."

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;[18] it also would have added "status of a homeless person" to the state's hate crime statistics reporting system.[19]  The Florida legislation, as introduced, would have created a new crime with new penalties for aggravated assault or aggravated battery against a homeless person.[20]

Although none of the states ultimately enacted these amendments to their hate crime laws in 2007, additional bills have been introduced in late 2007 and early 2008 to add homeless persons as a protected class to state hate crime laws. In the 2008 state legislative sessions, Maryland, Ohio, Massachusetts, and Alaska all have considered legislation to add homeless persons as a protected class to their hate crime statutes.

Finally, at least one locality adopted a citywide ordinance to criminalize malicious harassment against homeless individuals in 2007. On December 10, 2007, the Seattle City Council voted unanimously to amend the city's hate crime 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.

----3 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. Dep't 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] Both H.R. 2216 and H.R.2217 define "homeless status" with respect to an individual as a person who lacks a fixed, regular, and adequate nighttime residence; or has a primary nighttime residence that is -

(1) a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings, including cars, parks, public spaces, abandoned buildings, substandard housing, bus or train stations, or similar settings;

(2) a supervised publicly or privately operated shelter designed to provide temporary living accommodations, including motels, hotels, congregate shelters, and transitional housing; or

(3) housing of other persons in which the individual is temporarily staying due to loss of housing, economic hardship, or a similar reason.
[9]  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.
[10] 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.
[11]  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.
[12]  A similar measure also passed the House during the 109^th Congress as an amendment to the Children's Safety Act (H.R. 3132), but was never acted upon by the Senate.
[13]  Conference Report to Accompany H.R. 1585, H. Rep. No. 110-477, at 1022 (2007).
[14] See Congress Drops Hate Crime Bill Covering Attacks on Gays, CNN.com, Dec. 6, 2007, http://www.cnn.com/2007/POLITICS/12/06/congress.hatecrimes.ap/index.html.\\
[15] 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).
[16] Me. Rev. Stat. Ann. Tit. 17-A, § 1151(8)(B) (2006) (enacted 2005).  "Homelessness" is not defined in the Maine Criminal Code.
[17] 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); Florida Senate Bill 1458, section 1 and Florida House Bill 11, section 1 (amending Florida Statutes Section 775.085, Florida's general hate crime law, to bring persons of "homeless status" within the protection of the law); Maryland Senate Bill 160, section 1 (would have amended Annotated Code of Maryland, Sections 10-304, 10-305, Maryland's general hate crime laws covering crimes against persons and crimes against property, to bring persons who are "homeless" or have a "need for housing" within the laws' protection); Massachusetts House Bill 2509 (amending Massachusetts General Laws, Chapter 265, Section 39, to bring persons of "homeless status" within the Commonwealth's prohibition on "assault and battery for purpose of intimidation"); 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 536, section 1 and Texas House Bill 1360, section 1 (amending Texas Penal Code Section 12.47 and Texas Code of Criminal Procedure Article 42.014 to provide enhanced penalties by adding "homelessness" to the list of characteristics protected by the state's general hate crimes legislation).
[18] Nev. A.B. 83, sec. 4 (amending Nev. Rev. Stat. § 41.690).
[19] Id. sec. 5 (amending Nev. Rev. Stat. § 179A.175).
[20] Fla. S.B. 1458, sec. 2 (as introduced Feb. 9, 2007) & Fla. H.B. 11, sec. 2 (as introduced Nov. 29, 2006) (proposing creation of Florida Statute section 784.0815).  This provision was stripped from both the House and Senate versions in committee.