Hate Crimes: a Comparison of Federal and California Law
The Civil Rights Act of 1964 18 USC 245
The Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009 18 USC 249;

Under both California and federal law, if you are charged with committing a crime because of hate or bias towards certain groups, you may face stiffer penalties than other people who commit the same crimes.

That's because hate crimes statutes make it a crime to cause, attempt to cause, or threaten to cause, bodily or property injury to someone, or to interfere with someone's civil rights, because of that person's actual or perceived:

  • Race,
  • Ethnicity,
  • Color,
  • Religion,
  • National origin,
  • Gender,
  • Sexual orientation,
  • Gender identity, or
  • Disability.

Hate crimes statutes fall into two general categories:

  1. Stand-alone statutes, which make it a crime in and of itself to injure someone, or interfere with someone's civil rights, or damage or destroy someone's property, because that person has one of the characteristics in the list above; and
  2. Penalty enhancements, under which your sentence for other crimes may be increased.

California's hate crime statutes are quite broad, and most hate crimes committed in the state will be prosecuted by district attorneys as violations of the California Penal Code.

Crimes may be prosecuted as federal hate crimes, in a United States District Court, however, if:

  • the California Penal Code does not cover the victim and/or act;
  • the case involves organized hate groups;
  • local authorities are unwilling or unable to prosecute the crime;
  • local authorities request federal assistance with prosecution for a particularly egregious crime; or
  • the federal government determines that prosecution by the United States is in the public interest and necessary to secure substantial justice.

"Stand-alone" statutes under which you can be prosecuted for a hate crime committed in California include:

1. California Penal Code 422.6 PC

Penal Code 422.6 PC makes it a misdemeanor to willfully injure, intimidate, interfere with, or threaten someone in a protected class, or to knowingly damage or destroy such a person's property, so as to interfere with any of his or her legal or constitutional rights.1

Penalties for violations of Penal Code 422.6 PC include: probation; up to one (1) year in county jail; a fine of up to five thousand dollars ($5,000); and/or, up to four hundred (400) hours of community service.

2. The Civil Rights Act of 1964 18 USC 245.

18 USC 245 makes it a federal crime to injure, harass, or threaten someone on the basis of race, color, religion, or national origin while the person is engaging in a federally protected activity, such as attending a public school, enjoying a public place, applying for government employment, voting, or serving on a jury.

Possible penalties for violation of 18 USC 245 include a hefty fine and/or imprisonment of up to one year; or, if bodily injury results, or acts of intimidation involve the use of firearms, explosives or fire, a prison term of up to ten years.

Crimes involving actual or attempted killing, kidnapping, and/or aggravated sexual abuse, may be punished under 18 USC 245 by life imprisonment or the death penalty.

3. The Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009 18 USC  249.

18 USC 249 adds gender, gender identity, sexual orientation, and disability to the class of protected victims in cases of actual or attempted willful bodily injury.

Additionally, in cases of actual or attempted willful bodily injury under this law, the alleged victim does not have to have been engaging in a federally protected activity.  All that is needed to trigger the statute is that the act has an effect on interstate or foreign commerce.

Penalties under 18 USC 249 include fines of up to $250,000, and prison sentences of not more than 10 years, or up to life imprisonment for actual or attempted killing, kidnapping, and/or aggravated sexual abuse.

4. Conspiracy Against Rights 18 USC 241

18 USC 241 makes it a crime for two or more people to harm, threaten, or intimidate anyone in the free exercise or enjoyment of any right or privilege under the Constitution or laws of the United States.

Penalties for conspiring against rights include a fine and/or imprisonment of not more than ten years.

Life imprisonment or the death penalty is also possible, if death results from acts committed in violation of this statute, or if such acts include actual or attempted kidnapping, actual or attempted aggravated sexual abuse, or an attempt to kill.

5. The Civil Rights Act of 1968 a/k/a The Fair Housing Act 42 USC 3631

42 USC 3631 criminalizes any actual, attempted or threatened injury, interference or intimidation in connection with the sale, purchase or rental of property, because of a person's race, color, religion, sex, handicap, familial status, or national origin.

Penalties for violation of 42 USC 3631 include fines ranging from $5,000 to $250,000, and imprisonment for terms ranging from not more than one (1) year... to life imprisonment for violent crimes.

Penalty sentencing enhancements for crimes motivated by hate or bias... as opposed to laws making the hate itself a substantive offense... include:

1. California Penal Code 422.7 PC – "hate crime" penalties for misdemeanors

Under Penal Code 422.7 PC, a misdemeanor may be bumped up to a felony if you are convicted of a misdemeanor that was motivated by hate or bias and:

  1. The act caused actual physical injury... or occurred when you had the ability to commit a violent injury against the victim; or
  2. The act caused property damage of more than nine hundred fifty dollars ($950); or
  3. You have been previously convicted of a stand-alone hate crime under Penal Code 422.6 PC.

Penalties under Penal Code 422.7 PC can include imprisonment of up to one (1) year in a county jail, a fine of up to ten thousand dollars ($10,000), or both.

2. California Penal Code 422.75 PC – "hate crime" penalties for felonies

Under Penal Code 422.75 PC, if you are convicted of a felony that qualifies as a hate crime, you will receive an additional prison sentence of up to three (3) years in prison.2

And, if you committed the felony hate crime with another person, regardless of whether you personally committed the offense or aided and abetted the other person, the felony hate crime sentencing enhancement may be as high as four (4) years in prison.3

3. United States Sentencing Commission Guidelines: 2H1.1. Offenses Involving Individual Rights, and 3A1.1. Hate Crime Motivation or Vulnerable Victim

Under United States Sentencing Guideline 2H1.1, the base level sentence for violations of stand-alone federal hate crimes is anywhere from 6 to 12 levels4.

And if the sentencing judge determines beyond a reasonable doubt that your crime was motivated by a person's actual or perceived race, color, religion, national origin, ethnicity, or gender, the sentence will be increased by three (3) sentencing levels, along with any other applicable penalties (e.g., use of a firearm during commission of the crime, etc).5

The judge will then impose a sentence within a range set forth in the Guidelines for the final level, based on your criminal history.

Example of federal sentencing for a hate crime

Under Sentencing Guideline 2H1.1(b), a crime involving the threat of force carries a base level of 10.  If there are no upward or downward adjustments, the sentencing range starts at 6-12 months for someone with no criminal history, and goes as high as 24-30 months for someone with a serious history of crime.6

If, however, the prosecution proves beyond a reasonable doubt that the crime was motivated by hate or bias, the judge will increase the offense to level 13.  The sentencing rage for a level 13 offense starts at 12-18 months for someone with no criminal history, and increases to a maximum of 33-41 months for someone who has committed more, or more serious, crimes in the past.

Hate crimes penalties and sentencing enhancements are in addition to each other... as well as in addition to... state and/or federal penalties for underlying offenses.

So as you can see, committing almost ANY crime because of hate or bias can greatly increase your sentence, whether you are prosecuted under federal or California law.

But since there is no parole under the federal system, if you are convicted of a hate crime in federal court, you will serve your full sentence.

Examples of federal hate crimes
    • Jane emails death threats to a number of Asian-American students at a California university.  The message says that it is the sender's mission to kill every recipient personally, and is signed "Asian hater."

      Jane may be prosecuted both for making a criminal threat in violation of California Penal Code 422 PC, and for violation of California's hate crime laws.
    • Ronald yells anti-Islamic slurs and threatens to beat up a man he believes is a Muslim.  Even though the man is not a Muslim, Ronald may be charged under California's hate crimes laws, as well as with assault under California Penal Code 240 PC.
    • Joe and Victor regularly patrol a state park looking for gay men to harass.  One night Joe and Victor force two men to leave the park by brandishing baseball bats at them and threatening to kill them if they don't leave.

      Regardless of whether or not the men are actually gay, there are numerous ways Joe and Victor might be charged:

      They might be charged with a hate crime under Penal Code 422.7 PC and violation of California Penal Code 245(a)(1) Assault with a Deadly Weapon (ADW);

      OR

      Joe and Victor could be charged in federal court for violating the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act, and for conspiracy against rights in violation of 18 USC 241;

      OR

      Joe and Victor could be charged in state court for assault with a deadly weapon AND in federal court for a hate crime.7
    • Daniel, who is Jewish, dislikes Hasidic Jews because of their strict interpretation of Jewish law.  He mails threatening letters to some Hasidic Jews and one night forces his way into a Hasidic man's house and uses a pair of scissors to forcibly cut off the man's beard and curled sideburns.

      Even though Daniel is attacking someone of his own faith, because he used the federal mail to make threats, and the scissors were manufactured in another state, Daniel could be charged with a federal hate crime under 18 USC 249(a)(2)8.
  • Pete and Mike are members of a white supremacist group.  One night they force an African American girl into their car at gunpoint and drive her down an interstate highway to a remote location, where they rape her, beat her and leave her, and where she eventually dies. Afterwards, they brag to their friends that they got even with African Americans, using derogatory terms.

    Even though they didn't intend for the girl to die, Pete and Mike might be charged with a hate crime under California law, as well as with violations of other California penal code sections, including  California Rape Law Penal Code 261, Aggravated Kidnapping Penal Code 207-210, and Felony Murder;

    OR

    Pete and Mike could be charged for the California Penal Crimes in state court... and in federal court for violation of the Civil Rights Act of 1964;

    OR

    They could be charged solely with federal crimes, including felony murder under 18 USC 1111, kidnapping under 8 USC 1201, and violation of the Civil Rights Act.

In addition, in any of the last three examples, if the defendants are convicted under federal law, they could receive a penalty enhancement at sentencing if the judge finds they intentionally committed the acts because of their alleged victim's protected status.

Legal defenses to federal hate crimes charges

Of course, it's easy for a prosecutor to say that a crime was motivated by hate when the victim is a different race, religion, gender, ethnicity or a member of another protected group of people.

If you are accused of a hate crime under federal or California law, a skilled criminal defense attorney may be able to help you beat -- or reduce the severity of -- the charges by using certain legal defenses.

These might include:

  • You didn't commit a crime (hate crime or not) in the first place, and are being charged only because of false accusations, misidentification, etc.
  • You did commit a crime, but it was not motivated by bias and, therefore, doesn't qualify as a hate crime under either California or federal law.
  • You did commit a crime that was motivated by bias, but it doesn't meet one or more of the necessary legal requirements to bring it within the prohibition of the statute under which you were charged (see discussions of specific laws, below).

To help you better understand what makes a crime a hate crime under federal and California law. . . and how to fight hate crimes charges . . . our California federal criminal defense attorneys will address the following , below:

1. The Civil Rights Act of 1964 18 USC 245

1.1. Prohibited acts under the Civil Rights Act of 1964

1.2. Legal definition of "federally protected activities"

1.3. Legal defenses to charges under 18 USC 245

1.4. Penalties for violations of the Civil Rights Act of 1964

1.5 Certification of necessity by the United States
Attorney General

2. The Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009,
18 USC 249

2.1. Elements of a hate crime under 18 USC 249

2.2. Effect on interstate or foreign commerce

2.3. Legal defenses to charges under 18 USC 249

2.4. Penalties for violation of 18 USC 249

3. Conspiracy Against Rights 18 USC 241

3.1 Prohibited acts under 18 USC 241

3.2 Legal defenses to Conspiracy Against Rights

3.3 Penalties under 18 USC 241

4. The Fair Housing Act 42 USC 3631

4.1. Prohibited acts under 42 USC 3631

4.2. Legal defenses to violations of the Fair Housing Act

4.3. Penalties for violation of 42 USC 3631

5. United States Sentencing Guidelines for crimes of bias

5.1. Sentencing Guideline 2H1.1. Offenses Involving Individual Rights

5.2. Sentencing Guideline 3A1.1. Hate Crime Motivation or Vulnerable Victim

6. Comparison of federal and California hate crimes statutes

6.1. California Penal Code sections 422.55, 422.6, 422.7, and 422.75 PC

6.2. Sentencing Reform Act of 1984

7. Constitutional Considerations

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. The Civil Rights Act of 1964 18 USC 245

In 1964, the United States Congress enacted the federal Civil Rights Act, which was signed into law by then-President Lyndon B. Johnson.

1.1. Prohibited acts under the Civil Rights Act of 1964

18 USC 245 prohibits anyone from willingly injuring, intimidating or interfering with another person... or attempting to do so ... by force, or threat of force, because of the other person's:

    • race,
    • color,
    • religion, or
    • national origin,

      and
  • because that person was engaged in...or attempting to engage in...a federally protected activity.9

1.2. Legal definition of "federally protected activities"

Under 18 USC 245, "federally protected activities" include (but are not limited to):

  • enrolling in or attending a public school,
  • enjoying goods or services in public places such as hotels, restaurants, gas stations, movie theaters, concert halls and sports stadiums,
  • enjoying or participating in a facility or activity provided or administered by any state or subdivision thereof,
  • applying for government employment,
  • voting,
  • serving on a jury,
  • travelling on, or using the facility of, an interstate highway, and
  • travelling on a common carrier (such as an airline or railroad company).10

Federal courts have found such activities as walking on a city street11 and enjoying a state-run public park12 to be federally protected activities under the Civil Rights Act of 1964.

1.3. Legal defenses under 18 USC 245

In addition to the defenses set forth above, legal defenses specific to charges that you violated the Civil Rights Act of 1964 include:

  • You injured or threatened someone as a result of bias, but the person was not engaging in a federally protected activity, and therefore your act doesn't qualify as a hate crime under the Civil Rights Act of 1964.

1.4. Penalties for violations of the Civil Rights Act of 1964

Penalties for violations of 18 USC 245 include:

  • a fine in an amount between $5,000 and $250,000, depending on the severity of the crime;13 and/or
  • imprisonment for not more than one (1) year; or
  • if bodily injury results from the acts... or they include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire... a fine and/or imprisonment for not more than ten years; or
  • if death results from the acts... or they include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill... a fine and/or imprisonment for any term of years or for life, or the death penalty.

1.5 Certification of necessity by the United States Attorney General

Before you can be prosecuted for a violation of 18 USC 245, an attorney in the office of, or under designation by, the United States Attorney General must certify that in her or her judgment, a prosecution by the United States is in the public interest and necessary to secure substantial justice.14

2. The Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009, 18 USC 249.

In 2009, President Obama signed into law the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009, 18 USC 249 (the "Hate Crimes Act" or "HCPA").   Conceived as a response to the murders Matthew Shepard ( a gay man) and James Byrd, Jr., (an African American), the measure expands the prior federal hate-crime law to include crimes motivated by a victim's actual or perceived gender, sexual orientation, gender identity, or disability.

2.1. Elements of a hate crime under 18 USC 249

18 USC 249 makes it a crime to willfully cause bodily injury to any person... or to attempt to cause bodily injury to any person... through the use of:

  • fire,
  • a firearm,
  • a dangerous weapon, or
  • an explosive or incendiary device,

because of that person's actual or perceived:

  • race,
  • color,
  • religion, or
  • national origin;

OR

if the crime affected interstate or foreign commerce, or occurred within the special maritime or territorial jurisdiction of the United States, because of that person's actual or perceived:

  • religion,
  • national origin,
  • gender,
  • sexual orientation,
  • gender identity, or
  • disability.

In other words, a crime based on a person's gender, sexual orientation, gender identity or disability is only a violation of the Hate Crimes Act if it occurs on federal property or affects interstate or foreign commerce.

2.2. Effect on interstate or foreign commerce

Courts have found that only a minimal showing is needed to establish that an act affects interstate or foreign commerce.

Among the acts that federal appeals courts15 have determined meet this requirement are:

  • driving a vehicle on an interstate highway during the commission of a crime16;
  • use of the United States mail system to lure an alleged victim to the area in which he was attacked17 ; and
  • use of a weapon which was manufactured in another state and sent to the alleged victim via a private, interstate postal carrier18.

2.3. Legal defenses to charges under 18 USC 249

In addition to the general legal defenses set forth in the introduction, above, possible legal defenses to charges under 18 USC 249 include:

  • You did not cause or attempt to cause bodily harm, so your crime doesn't qualify as a hate crime under the Hate Crimes Prevention Act; and/or
  • Your crime did not affect interstate or foreign commerce.

2.4 Penalties for violations of the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009

Penalties for violating 18 USC 249 are:

  1. a fine in an amount between $5,000 and $250,000, depending on the severity of the crime; and/or
  2. a term of imprisonment of not more than 10 years;

    OR

    if the offense:

    • results in death;
    • involves kidnapping or an attempt to kidnap;
    • involves aggravated sexual abuse or an attempt to commit aggravated sexual abuse; or
    • involves an attempt to kill,

a fine and/or imprisonment for any term of years or for life.

Threats to inflict physical injury are not prosecutable under the Hate Crimes Prevention Act, which requires at least an actual attempt to cause bodily harm.  Threats may be prosecutable, however, under the Civil Rights Acts of 1964 (18 USC 245), Conspiracy Against Rights (18 USC 241), Conspiracy Against Rights 18 USC 241.

3. Conspiracy Against Rights 18 USC 241

3.1. Prohibited acts under 18 USC 241

18 USC 241 makes it a crime for two or more persons conspire to:

  • injure,
  • oppress,
  • threaten, or
  • intimidate

any person in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.19

3.2. Legal defenses to charges of committing a Conspiracy Against Rights

In addition to general defenses, special defenses under 18 USC 241 include:

  • You did not conspire in a civil rights violation by another person; or
  • You committed the crime, but you did it solely on your own.

3.3. Penalties under 18 USC 241

The penalties for conspiring to commit a conspiracy against rights in violation of 18 USC 241 are:

  1. a fine in an amount between $5,000 and $250,000, depending on the severity of the crime; and/or
  2. a term of imprisonment of not more than 10 years, except that if the offense:

    • results in death;
    • involves kidnapping or an attempt to kidnap;
    • involves aggravated sexual abuse or an attempt to commit aggravated sexual abuse; or
    • involves an attempt to kill,

then the penalty shall be:

a. a fine, as set forth above, and/or

b. imprisonment for any term of years or for life, or the death penalty.
4. The Fair Housing Act 42 USC Chapter 45

Title VIII of the Civil Rights Act of 1968... more commonly known as the "Fair Housing Act"... is codified in Article 42 of the United States Code.  The Fair Housing Act prohibits discrimination based on:

  • race,
  • color,
  • religion,
  • sex,
  • handicap20,
  • familial status21, or
  • national origin.

4.1. Prohibited acts under 42 USC 3631

42 USC 3631 makes it unlawful to use force or threat of force to:

  • willfully injure,
  • intimidate or interfere with, or
  • attempt to injure, intimidate or interfere with

any person in one of the above listed categories, and because that person is or has been engaging in one of the following in connection with any dwelling:

  • selling,
  • purchasing,
  • renting,
  • financing,
  • occupying,
  • contracting or negotiating for the sale, purchase, rental, financing or occupation, or
  • applying for or participating in any service, organization, or facility relating to the business of selling or renting.

4.2. Legal defenses to violations of the Fair Housing Act

Legal defenses specific to violation of the Fair Housing Act might include:

  • You didn't use or threaten force against another person; and/or
  • You threatened someone, but it had nothing to do with housing.

4.3. Penalties under 42 USC 3631

Violation of 42 USC 3631 is punishable by:

  1. a fine in an amount between $5,000 and $250,000, depending on the severity of the crime; and/or
  2. imprisonment of not more than one year; except that if:

    • bodily injury results from acts committed in violation of this section, or
    • if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire,

then the penalty shall be a fine and/or imprisonment of not more than ten years, and if:

  • death results from acts committed in violation of this section, or
  • if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill,

then the penalty shall be a fine and/or imprisonment for any term of years or for life.

5. United States Sentencing Guidelines for crimes of bias

28 USC 994, enacted pursuant to the federal Violent Crime Control and Law Enforcement Act of 199422 ,  requires the United States Sentencing Commission to increase the penalties for crimes affecting a person's civil rights and crimes against people in protected classes.23

5.1. Sentencing Guideline 2H1.1. Offenses Involving Individual Rights

Under Guideline 2H1.1, the base level for offenses involving individual rights... including violations of hate crimes and the fair housing statute... is the greatest of:

  1. 12 sentencing levels for offenses committed by two (2) or more participants (i.e., conspiracy);
  2. 10 sentencing levels for crimes involving:

    • the use or threat of force against a person24 , or
    • property damage or the threat of property damage; or
  3. 6 sentencing levels, otherwise.25

The commentary to Guideline 2H1.1 in the United States Sentencing Guidelines Manual, specifies that these base levels are applicable to violations of 18 USC §§ 241, 245(b), and 249, as well as 42 USC 3631, among others.26

5.2. Sentencing Guideline 3A1.1. Hate Crime Motivation or Vulnerable Victim

Guideline 3A1.1(a) further provides that a base sentence under 2H1.1 of either 10 or 12 levels, will be increased by three (3) additional levels27 ... if the court determines beyond a reasonable doubt that you intentionally selected any person or property as the object of an offense because of that person's actual or perceived:

  • race,
  • color,
  • religion,
  • national origin,
  • ethnicity, gender,
  • gender identity,
  • disability, or
  • sexual orientation.28

These enhancements are in addition to enhancements, if any, applicable to underlying offenses.

6. Comparison of Federal and California Hate Crimes Statutes

California hate crimes laws set out an additional set out an additional set of statutes that punish crimes animated out of bias against particular groups.

6.1 California Penal Code sections 422.55, 422.6, 422.7, and 422.75 PC

California Penal Code 422.6 PC

Penal Code 422.6 PC makes it a misdemeanor to:

  1. willfully injure, intimidate, interfere with, or threaten someone in a protected class, or to knowingly damage or destroy such a person's property; and
  2. so as to interfere with any of their legal and constitutional rights.

Violations of 422.6 PC are punishable by:

  • probation;
  • up to one (1) year in county jail;
  • a fine of up to five thousand dollars ($5,000); and/or
  • up to four hundred (400) hours of community service .29

California Penal Code 422.7 PC

If you commit a California misdemeanor that is also a hate crime, it may be bumped up to a felony if the prosecutor proves that you committed it in order to interfere with the alleged victim's exercise of his/her legal rights, AND one of the following conditions exists:

  1. The misdemeanor either caused an actual physical injury or occurred when you had the present ability to commit a violent injury against the victim; OR
  2. The misdemeanor caused property damage costing more than nine hundred fifty dollars ($950), OR
  3. You have been previously convicted of a hate crime under Penal Code 422.6 PC (stand-alone hate crime).

If a misdemeanor hate crime gets bumped up to a felony under Penal Code 422.7 PC, the potential penalties for the offense might include:

  • Felony (formal) probation,
  • Sixteen (16) months, two (2) years or three (3) years in prison, and/or
  • A fine of up to ten thousand dollars ($10,000).30

California Penal Code 422.75 PC

If your underlying offense is a felony under California law... and the jury decides that it qualifies as a hate crime...  it will be punished under Penal Code 422.75 by a penalty enhancement to the sentence for the underlying offense.

An enhancement under Penal Code 422.75 means that you will receive an additional prison sentence of one (1), two (2) or three (3) years in prison.31

And, if you committed a felony hate crime with another person, then regardless of whether you

  1. personally committed the offense, or
  2. aided and abetted the other person,

the felony hate crime sentencing enhancement will instead be an additional two (2), three (3) or four (4) years in prison.32

6.2 The Sentencing Reform Act of 1984

At first blush, California penalties for hate crimes seem far less serious than penalties for the same offenses under comparable federal laws, which provide for fines of up to $250,000 and sentences of up to life imprisonment or, in some cases, even the death penalty.

But keep in mind that felonies will frequently be prosecuted under other California statutes, such as those relating to murder, assault, or arson, which can bring your sentence into line with penalties under federal hate crimes statutes.

The biggest difference between being convicted of a hate crime under federal statutes and under the California Penal Code, however, is that under the Sentencing Reform Act of 1984 (Title II of the Comprehensive Crime Control Act of 1984), Congress eliminated federal parole for most prisoners convicted on or after November 1, 1987.33

If you are convicted of a federal hate crime, you will serve your full sentence, less only a possible good behavior reduction of approximately fifteen percent.34

7. Constitutional Issues

Challenges to the constitutionality of hate crimes laws on general principles have, to date, been unsuccessful, although certain individual state and federal statutes have been found constitutionally lacking.35

Important United States Supreme Court and Ninth Circuit holdings in connection with federal constitutional challenges to hate crimes laws include:

The Commerce Clause

Under Article I, Section 8, Clause 4 of the United States Constitution, Congress has the power to "regulate Commerce with foreign Nations, and among the several States."

The three categories of activities subject to congressional regulation under the commerce clause are:

  1. use of the channels of interstate commerce,
  2. persons or things in interstate commerce, and
  3. activities having a substantial relation to interstate commerce (i.e., those activities that substantially affect interstate commerce).

The Ninth Circuit has held that enactment of federal hate crimes statutes is a legitimate exercise of Congress' power under the Commerce Clause, because hate crimes interfere with a victim's exercise of federally-recognized and protected civil rights.36

First Amendment

Since criminal laws already punish injurious conduct, it is argued that hate crimes laws impose additional punishment for values, opinion and beliefs protected by the First Amendment.37

The United States Supreme Court has held, however, that hate crimes statutes are constitutional as long as they are aimed at conduct unprotected by the First Amendment... even if proof of the motive for such conduct relies on evidentiary speech.38

Statutes prohibiting speech based solely on its content or message are invalid under the First Amendment.39

Fifth Amendment

The United States Supreme Court, while not ruling directly on the Double Jeopardy Clause as it applies to hate crimes cases, has held that charging a defendant for violation of both an underlying offense AND another crime for the same acts does not constitute double jeopardy, as long as each statute requires proof of a fact which the other does not.40

Thirteenth Amendment

The Ninth Circuit has held that the Hate Crimes Prevention Act does not violate the Thirteenth Amendment, because Congress could rationally have determined that the acts of violence covered by 18 USC 245(b)(2)(B) impose a badge or incident of servitude on their victims.41

Fourteenth Amendment

The United States Supreme has held that under the Due Process clause of the Fourteenth Amendment, any evidence that may increase a criminal penalty beyond the prescribed statutory maximum (other than the fact of a prior conviction) must be presented to a jury and proven beyond a reasonable doubt.42

Call us for help...
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If you or loved one is charged with a hate crime and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

For cases in Nevada, we invite you to visit our page on Federal hate crime laws in Nevada.


1 Penal Code 422.6 PC – Hate crime as a stand-alone crime, endnote 2, above.

2 See same, Felony hate crime.

3 See same, Felony hate crime.

4 Federal sentencing is based on a complex system involving 43 offense levels.  Each offense has a corresponding base offense level and may have one or more specific offense characteristics that adjust the offense level upward or downward. The judge then imposes a sentence within the range for the resulting level, taking into account the nature and seriousness of the conduct, the statutory purposes of sentencing, and the pertinent offender characteristics.  See, 18 U.S.C. § 3553(a) and 2012 Guidelines Manual.

5See, e.g., United States Sentencing Commission, Aggravating and Mitigating Role Adjustments Primer.

6See, 2012 United States Sentencing Guidelines Manual Sentencing Table.

7See, e.g., United States v. Bledsoe, (8th Cir. 1984)728 F.2d 1094 , (holding that the Double Jeopardy clause did not bar prosecution under 18 USC 245 after an acquittal on state murder charges based on the same acts).

8Based on, United States v. Nelson, (2002) 277 F.3d 164 (2d Cir.), cert. denied, 537 U.S. 835, 123 S.Ct. 145, in which a group of African Americans retaliated against a Jewish man because of an earlier accident in which another Jew had struck two African American children and received medical treatment before the children, who had been more seriously injured.

918 U.S.C. 245 – Federally protected activities [first federal hate-crimes law]. ("b) Whoever, whether or not acting under color of law, by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with--(1) any person because he is or has been, or in order to intimidate such person or any other person or any class of persons from-- (A) voting or qualifying to vote, qualifying or campaigning as a candidate for elective office, or qualifying or acting as a poll watcher, or any legally authorized election official, in any primary, special, or general election; (B) participating in or enjoying any benefit, service, privilege, program, facility, or activity provided or administered by the United States;  (C) applying for or enjoying employment, or any perquisite thereof, by any agency of the United States;  (D) serving, or attending upon any court in connection with possible service, as a grand or petit juror in any court of the United States;  (E) participating in or enjoying the benefits of any program or activity receiving Federal financial assistance; or (2) any person because of his race, color, religion or national origin and because he is or has been-- (A) enrolling in or attending any public school or public college; (B) participating in or enjoying any benefit, service, privilege, program, facility or activity provided or administered by any State or subdivision thereof; (C) applying for or enjoying employment, or any perquisite thereof, by any private employer or any agency of any State or subdivision thereof, or joining or using the services or advantages of any labor organization, hiring hall, or employment agency;  (D) serving, or attending upon any court of any State in connection with possible service, as a grand or petit juror, (E) traveling in or using any facility of interstate commerce, or using any vehicle, terminal, or facility of any common carrier by motor, rail, water, or air; (F) enjoying the goods, services, facilities, privileges, advantages, or accommodations of any inn, hotel, motel, or other establishment which provides lodging to transient guests, or of any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility which serves the public and which is principally engaged in selling food or beverages for consumption on the premises, or of any gasoline station, or of any motion picture house, theater, concert hall, sports arena, stadium, or any other place of exhibition or entertainment which serves the public, or of any other establishment which serves the public and (i) which is located within the premises of any of the aforesaid establishments or within the premises of which is physically located any of the aforesaid establishments, and (ii) which holds itself out as serving patrons of such establishments; or (3) during or incident to a riot or civil disorder, any person engaged in a business in commerce or affecting commerce, including, but not limited to, any person engaged in a business which sells or offers for sale to interstate travelers a substantial portion of the articles, commodities, or services which it sells or where a substantial portion of the articles or commodities which it sells or offers for sale have moved in commerce; or (4) any person because he is or has been, or in order to intimidate such person or any other person or any class of persons from-- (A) participating, without discrimination on account of race, color, religion or national origin, in any of the benefits or activities described in subparagraphs (1)(A) through (1)(E) or subparagraphs (2)(A) through (2)(F); or (B) affording another person or class of persons opportunity or protection to so participate; or (5) any citizen because he is or has been, or in order to intimidate such citizen or any other citizen from lawfully aiding or encouraging other persons to participate, without discrimination on account of race, color, religion or national origin, in any of the benefits or activities described in subparagraphs (1)(A) through (1)(E) or subparagraphs (2)(A) through (2)(F), or participating lawfully in speech or peaceful assembly opposing any denial of the opportunity to so participate-- shall be fined under this title, or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire shall be fined under this title, or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.")

10 See same.

11 United States v. Nelsen, (2002) 277 F.3d 164 (2d Cir.), cert. denied, 537 U.S. 835, 123 S.Ct. 145 (holding that a city street is a "facility" for purposes of  245(b)(2)(B)).

12 United States v. Bledsoe, note 7 (commission of a hate crime under 18 USC 245 in a public park).

1318 USC 245 and 18 USC 3571, which provides, in relevant part:
(b) Fines for Individuals. — Except as provided in subsection (e) of this section, an individual who has been found guilty of an offense may be fined not more than the greatest of—(1) the amount specified in the law setting forth the offense;
(2) the applicable amount under subsection (d) of this section;
(3) for a felony, not more than $250,000;
(4) for a misdemeanor resulting in death, not more than $250,000;
(5) for a Class A misdemeanor that does not result in death, not more than $100,000;
(6) for a Class B or C misdemeanor that does not result in death, not more than $5,000; or
(7) for an infraction, not more than $5,000.


... (d)  Alternative Fine Based on Gain or Loss.— If any person derives pecuniary gain from the offense, or if the offense results in pecuniary loss to a person other than the defendant, the defendant may be fined not more than the greater of twice the gross gain or twice the gross loss, unless imposition of a fine under this subsection would unduly complicate or prolong the sentencing process.
(e) Special Rule for Lower Fine Specified in Substantive Provision.— If a law setting forth an offense specifies no fine or a fine that is lower than the fine otherwise applicable under this section and such law, by specific reference, exempts the offense from the applicability of the fine otherwise applicable under this section, the defendant may not be fined more than the amount specified in the law setting forth the offense.

14 18 USC 245(a)(1) provides:

Nothing in this section shall be construed as indicating an intent on the part of Congress to prevent any State, any possession or Commonwealth of the United States, or the District of Columbia, from exercising jurisdiction over any offense over which it would have jurisdiction in the absence of this section, nor shall anything in this section be construed as depriving State and local law enforcement authorities of responsibility for prosecuting acts that may be violations of this section and that are violations of State and local law. No prosecution of any offense described in this section shall be undertaken by the United States except upon 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, which function of certification may not be delegated.

15 The Ninth Circuit United States Court of Appeals has not issued any published opinions on this subject.

16 United States v. Jenkins, (2012) WL 4887389 (E.D.Ky.).

17 United States v. Mullet, Northern District Of Ohio United States District Court, Case No. Case No. 5:11 CR 594 (denying motion to dismiss based on defendant's claims that 18 USC 249 exceeds Congress's power under the Commerce Clause ).

18 United States v. Nelson, note 11.

19 18 USC 241 provides:

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or
If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.

20 Defined under 42 USC 3602(h) as:

(1) a physical or mental impairment which substantially limits one or more of such person's major life activities,
(2) a record of having such an impairment, or
(3) being regarded as having such an impairment,
but such term does not include current, illegal use of or addiction to a controlled substance (as defined in section 802 of title 21).

21 Defined under 42 USC 3602(k) as one or more individuals (who have not attained the age of 18 years) being domiciled with—
(1) a parent or another person having legal custody of such individual or individuals; or(2) the designee of such parent or other person having such custody, with the written permission of such parent or other person.
The protections afforded against discrimination on the basis of familial status shall apply to any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of 18 years.

22 For a summary of the key provisions of the Act, see Violent Crime Control and Law Enforcement Act of 1994 U.S. Department of Justice Fact Sheet.

23 28 USC 994, Duties of the United States Sentencing Commission.

24 Same, comment 3: The burning or defacement of a religious symbol with an intent to intimidate shall be deemed to involve the threat of force against a person for the purposes of subsection (a)(3)(A).

25 Same §2H1.1.  Offenses Involving Individual Rights

(a)      Base Offense Level (Apply the Greatest):

(1)       the offense level from the offense guideline applicable to any underlying offense;(2)       12, if the offense involved two or more participants;

(3)       10, if the offense involved (A) the use or threat of force against a person; or (B) property damage or the threat of property damage; or

(4)       6, otherwise.

26 See, Commentary to 2012 USSC Guidelines Manual §2H1.1. Offenses Involving Individual Rights, which provides that the section is applicable to statutory provisions 18 U.S.C. §§ 241, 242, 245(b), 246, 247, 248, 249, 1091; and 42 U.S.C. § 3631.

27 The enhancement does not apply if the defendant was a public official at the time of the offense or the offense was committed under color of law, as a 6 level-enhancement for civil rights crimes against such victims is already provided under 2H1.1(b)(1)

28 Same, Section 3A1.1(a).  Hate Crime Motivation or Vulnerable Victim(a)       If the finder of fact at trial or, in the case of a plea of guilty or nolo contendere, the court at sentencing determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, gender identity, disability, or sexual orientation of any person, increase by 3 levels.

29 Penal Code 422.6 PC – Hate crime as a stand-alone crime, endnote 2, above.

30 See same, Misdemeanor hate crime.

See also Penal Code 1170(h) PC – Determinate sentencing. ("(h)(1) Except as provided in paragraph (3), a felony [including a misdemeanor hate crime elevated to a felony] punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.")

31 See same, Felony hate crime.

32 See same, Felony hate crime.

33 See, e.g., Parole in the Federal Probation System, United States Courts, Third Branch News, May 2011.

34 See, introduction to 2012 USSC Guidelines Manual.

35 For a general discussion of constitutional issues, see Alison M. Smith, Constitutional Limits on Hate Crime Legislation, CRS Report for Congress, February 20, 2008.

36 See, e.g., United States v. Allen, 341 F.3d 870 (9th Cir. 2003), in which the panel reasoned that since the US Supreme Court has held that civil interference with federal civil rights affects interstate commerce, then criminal interference with them does so as well).

37 See, e.g., James B. Jacobs & Kimberly Potter, Hate Crimes: Criminal Law AndIdentity Politics (1998) Oxford University Press.

38 See, Wisconsin v. Mitchell (1993) 508 U.S. 476 (holding that First Amendment rights were not violated by the application of a Wisconsin penalty-enhancement provision for hate crimes, because the statute is aimed at conduct unprotected by the First Amendment).  See also, United States v. Mullet, note 17 (the religious beliefs and expressions of the defendants are immaterial -- it is the religious belief or expression of the alleged victim that matters).

39 See, e.g., R.A.V. v. St. Paul (1992) 505 U.S. 377 (holding that an ordinance making it a crime to display objects which arouse anger, alarm or resentment in others on the basis of race, color, creed, religion or gender punished speech in violation of the First Amendment).

40 Blockburger v. United States, 284 U.S. 299 (1932).  See also, United States v. Jenkins, note 37 (kidnapping and HCPA charged were not multiplicitous, because the defendants could be convicted under the HCPA without proof of the kidnapping (albeit with a shorter sentence) and/or could be convicted under the longer sentence of the HCPA, based on proof that they attempted to murder the alleged victim).

41 See same (applying reasoning to 18 USC 245(b)(2)(B)).

42 Apprendi v. New Jersey (2000) 530 U.S. 466.

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