Abstract

NAIDOO, Kamban. The historical prosecution of hate crimes in the United States of America. Fundamina (Pretoria) [online]. 2017, vol.23, n.2, pp.21-38. ISSN 2411-7870.  http://dx.doi.org/10.17159/2411-7870/2017/v23n2a2.

Hate crimes refer to criminal conduct that is motivated by the personal prejudice or bias of the perpetrator. This article examines the laws that were historically used by the American federal government to prosecute hate crimes prior to the passing of a federal hate-crime law. Within the American federal system, the prosecution of crimes is largely left to states that comprise the federation. In the nineteenth century, however, the recalcitrance of states to prosecute racially-motivated hate crimes led to the passing of numerous federal-criminal civil-rights laws which permitted greater federal intervention in the investigation and prosecution of such crimes. Despite the laudable intentions underpinning the enactment of federal-criminal civil-rights laws, these laws were costly to implement and poorly interpreted by the courts. The Civil Rights Act of 1968 which was passed after the Civil-Rights Movement allowed for greater federal intervention in the investigation and prosecution of hate crimes at state and local level. However, the Civil Rights Act of 1968 contained burdensome evidentiary requirements which placed the onus on the prosecution to prove that the victim had been engaged in a federally-protected activity and that the victim's federal rights had been interfered with. It was only in the twenty first century, after the perpetration of two brutal hate crimes that a federal hate-crime law was passed by the American Congress. The Matthew Shepard and James Byrd Junior Hate Crimes Prevention Act of 2009 has facilitated the federal prosecution of hate crimes by removing the evidentiary burdens of the earlier laws and by allowing for increased federal funding and assistance in the investigation and prosecution of hate crimes.

Keywords : Hate crimes; historical prosecution; hate-crime laws; United States of America.

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