Hate Crimes: Laws and Penalties

Crimes committed because of the victim's race, gender, and other protected qualities are hate crimes. Anyone can be a victim of a hate crime.

Hate or bias-motivated crimes are crimes committed because the victim is (or is thought to be) a member of a certain group, such as a racial or religious minority. In 2018, law enforcement agencies reported more than 7,000 incidents of hate crimes in the United States. (FBI's 2018 Hate Crime Statistics.)

Currently, 47 states and the District of Columbia have enacted laws against hate crimes. In addition to state laws, several federal laws prohibit hate or bias crimes, including the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009, which offers greater protection to victims than some state laws. For more information on Matthew Shepard and James Byrd, Jr., see Hate Crimes That Changed History.

What Is a Hate or Bias Crime?

The definition of hate and bias crime laws varies from state to state. But, in general, it is a crime committed against an individual because of the victim's actual or perceived:

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

Some hate crime legislation also protects people based on homelessness, gender identity or expression, or political affiliation.

Protected characteristics. States vary widely as to the classifications protected under their state laws. Most states' laws prohibit crimes based on an individual's race, color, ethnicity, religion, gender, and disability. Few states initially provided protections based on sexual orientation, gender identity, and gender expression. But as of July 2020, over 30 states protect individuals based on sexual orientation, and 20 of these states and federal law offer protection to people who are victimized because of their gender identity or expression.

Perceived characteristics. Hate or bias crime laws protect victims based on their actual or perceived characteristics—whether or not the perception (belief) is correct. For example, a person who attacks someone on the mistaken belief the individual is Muslim or Arab commits a hate crime, even if it turns out the individual isn't Muslim or Arab.

Who Is Protected?

State laws differ in the types of classes protected by hate crime laws (race, religion, sexual orientation). But within the classes protected by the law, anyone who is targeted for a crime motivated by hate or bias is protected, not just people who are members of a minority group. Because everyone has a race, national origin, and so on, everyone is protected under hate crime laws when they are victimized because of these protected characteristics. For more information, see Is Everyone Protected by Hate Crime Laws?

What Do the Laws Prohibit?

There are generally three types of laws criminalizing hate crimes:

Laws that protect an institutional target. These are laws prohibiting institutional vandalism or destruction. For example, a law making it a crime to damage or deface a church, synagogue, mosque, or other place of religious worship.

Laws that protect persons based on their membership in a specified group. These substantive offenses make it an independent crime to threaten or use violence against people because of their membership in a protected class. In California, for example, it is a crime to injure, intimidate, or threaten a person due to the person's gender, race, nationality, sexual orientation, disability, or religion.

Laws that enhance penalties for the underlying crime. In these cases, the prosecutor charges the defendant with the underlying criminal act, such as murder, assault, or arson. But during sentencing, the prosecutor asks for an enhanced penalty because the crime was motivated by hate or bias. So a misdemeanor assault could become a felony assault based on the crime being racially motivated. Some state laws allow penalty enhancements for any crime, while others limit the protections to only crimes of violence or specific crimes (like arson, assault, or harassment).

How Does the State Prove Intent in Hate Crimes?

Not every crime committed against, say, a person who is gay is a hate crime. It becomes so only if it is committed because of the victim's actual or perceived sexual orientation. For example, suppose that two teens deface a store owned by a Muslim. If there is no evidence that the victim's religion had anything to do with the crime, it would not be prosecuted as a hate crime. However, if the teens intentionally sought out the store for vandalism because it was owned by a Muslim, the prosecutor may charge it as a hate crime.

In order to convict a defendant of a hate crime, the prosecutor must prove beyond a reasonable doubt to the jury that the defendant committed the crime because of the victim's race, color, religion, or for some other prohibited reason. Proving that the defendant acted with hate crime intent can be difficult. For more information, see How Do Prosecutors Prove Hate Crimes? Relevant evidence might include:

  • the defendant's use of racial or ethnic slurs during the commission of the crime, or
  • defendant's admission that the crime was motivated by bias.

In practice, prosecutors generally seek hate crime convictions only when fairly obvious evidence of bias exists on the part of the defendant. For instance, in the vandalism example above, the defendant's spray-painted hateful slogans regarding the shopkeeper's religion would be powerful evidence that these feelings motivated the crime.

What Are the Penalties for Hate Crimes?

Most state laws carry criminal penalties for hate crimes. But, in some states, both criminal penalties and civil remedies exist.

Criminal Penalties

Criminal penalties for hate crimes vary from state to state but many hate crimes are felonies (crimes punishable by more than one year in prison). States that allow penalty enhancements might increase the penalty by a certain number of years or raise the offense level—say from a misdemeanor to a felony or from a second-degree to a first-degree felony. Under federal hate crime legislation, bias-motivated violence is punishable by ten years to life in prison, and some bias-motivated crimes are punishable by the death penalty. (18 U.S.C. §§ 245, 249.) For more information on federal prosecutions, see Federal Prosecutions for Civil Rights Violations.

Civil Remedies

In 31 states and the District of Columbia, people who commit violence, intimidation, or vandalism against others on account of the person's race, religion, ethnicity, or membership in a protected group can be sued in civil court and ordered to pay damages (money) to the victim. Just as criminal hate crime laws vary from state to state, so do civil liability laws.

What About Free Speech Rights?

The First Amendment guarantees the right to free speech. Although defendants have challenged hate crime legislation on the ground that the law violate their rights to free speech, those challenges have generally not been successful so long as the law criminalizes bias-motivated conduct and not merely hateful thoughts or speech. (Wisconsin v. Mitchell, 508 U.S. 476 (1993).) In order to withstand First Amendment challenges, hate crimes legislation must be carefully drafted to avoid criminalizing thoughts or speech, even when that speech is offensive and hateful. For more information, see Do Hate Crime Laws Violate the First Amendment?

Talk to a Lawyer

If you are charged with a crime, contact a local criminal defense attorney. An attorney can help you navigate the criminal justice system, defend your case, and protect your rights. Local criminal defense attorneys are often familiar with the local judges and prosecutors and know how similar cases have fared in the system.

Updated: July 20, 2020

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