WASHINGTON – Some lawmakers and civil rights advocates are calling for the Justice Department to be more aggressive in prosecuting hate crimes now that lynching is a federal hate crime.
Rep. Bobby Rush, D-Illinois, and one of the main champions of the new law, said he is looking for “expedited accountability” from the Justice Department.
“Wherever there’s a hate crime that’s reported in the media or allegations of a hate crime anywhere in our nation and if it involves two or more people, then the federal government must aggressively pursue and investigate that crime or potential crime,” Rush, a senior member of the Congressional Black Caucus, told Capital News Service.
The Chicago Democrat originally sponsored the Emmett Till Antilynching Act in 2019, the latest in a long line of similar legislation over the past 130 years.
Rep. Kweisi Mfume, who left his Baltimore seat to lead the NAACP for nearly a decade before returning to Congress in 2020, told CNS that he hopes the new law empowers law enforcement.
“We believe now that this is the law, that there’s got to be a willingness on the part of the Justice Department to enforce that law,” Mfume said. “Otherwise, there won’t be any accountability and nobody can predict whether something as heinous is going to take place as this again.”
Arusha Gordon, the associate director of the James Byrd Jr. Center to Stop Hate at the Lawyers’ Committee for Civil Rights Under Law, said the determination to prosecute is based on an internal commitment by an agency.
“There is this additional element in terms of showing bias motivation, and I think you really need to have people who are motivated to look for that evidence,” Gordon said.
Legislation to make lynching a federal hate crime was introduced and failed over 200 times in Congress, the Howard Center for Investigative Journalism at the University of Maryland’s Philip Merrill College of Journalism reported in November.
But on March 29, President Joe Biden signed the Emmett Till Antilynching Act, making lynching a federal crime for the first time in the nation’s history.
While some lawmakers are pushing for more aggressive prosecution from the Justice Department, lawyers, outside groups and even other lawmakers warn that the new law’s chief significance is symbolic rather than legal.
Del. Eleanor Holmes Norton, D-District of Columbia, and another senior Congressional Black Caucus member, said that it would be difficult to get retribution for lynchings that have already happened, but it’s important for the federal government to make this historic declaration.
“It would have been outrageous not to pass it,” Norton said in an interview. “I don’t understand why it took more than 200 times.”
In hate crimes reports to Congress, the Justice Department repeatedly said it was prioritizing prosecution of hate crime cases. But the agency reported in July that it declined to prosecute 83% of hate crime suspects from 2005 to 2019.
Attorney General Merrick Garland sent a memo to Justice Department employees in May of last year outlining a multi-step plan to boost federal hate crime prosecutions.
“These actions will enhance our current efforts to combat unlawful acts of hate by improving incident reporting, increasing law enforcement training and coordination at all levels of government, prioritizing community outreach, and making better use of civil enforcement mechanisms,” Garland said.
“All of these steps share common objectives: deterring hate crimes and bias-related incidents, addressing them when they occur, supporting those victimized by them, and reducing the pernicious effects these incidents have on our society,” the attorney general added.
Mfume says he’s waiting to see to what extent the new commitment comes to fruition.
“You don’t want to tell the chief law enforcement officer that he ought to be prosecuting one thing or another,” said Mfume, who sits on the House Oversight and Reform Committee and was chairman of the Congressional Black Caucus in the 1990s. “But you do want to imply that in order to be accountable, there has to be enforcement of existing law. That’s what we have been trying to drive home from the beginning.”
Sen. Cory Booker, D-New Jersey, who sponsored the anti-lynching legislation in the Senate along with Vice President Kamala Harris before she left the Senate, said the new law is another tool for the Justice Department to use in hate crime prosecution, but he also hopes the law serves as a deterrent.
“For the federal government to be silent on this crime for all these years is reprehensible,” Booker told CNS. “So this is a very important statement to our country that this kind of terrorism, and murder will not be tolerated.”
Sen. Chris Van Hollen, D-Maryland, said “it is critical that we make clear that racially driven harassment and violence have no place in our society and will be met with serious legal consequences.”
“…And with hate crimes reaching their highest level in years, having this additional federal charge in their arsenal gives federal prosecutors another tool in the fight for justice,” the senator said in a statement to CNS.
Biden and Harris emphasized the need for accountability at the March bill signing in the White House’s Rose Garden.
“Lynching is not a relic of the past,” Harris said at the signing ceremony. “Racial acts of terror still occur in our nation. And when they do, we must all have the courage to name them and hold the perpetrators accountable.”
The new law doesn’t limit the definition of lynching to the hanging of a victim from a tree. In fact, even in cases where a victim survives a lynching, federal prosecutors can still argue the violent act was a hate crime. The law also expands the type of behavior that is typically associated with hate crimes.
“Really what it does is it allows prosecutors to address a wider swath of…activity and it recognizes the conspiratorial nature that is often part of hateful activity and hate crimes,” Gordon said.
The conspiracy section the new law adds is very narrow, according to Michael Lieberman, senior policy counsel at the Southern Poverty Law Center. Even so, he said he regards the law as one of the most important hate crime laws passed in the last four decades.
“The bottom line is, this legislation is really important to be able to finally close the loop on 120 years of trying to get this to be a federal crime for those rare instances where state and locals are either unable or unwilling to investigate and prosecute,” Lieberman said.
He cited as an example the 2020 murder of Ahmaud Arbery in Georgia, where local prosecutors initially resisted investigating Arbery’s death.
Lieberman and Mfume believe the anti-lynching law can be used to teach Americans about the civil rights movement and the history of lynching.
“This is really an important opportunity for us to be able to talk about this horrific era in our history, that horrific aspect of targeted racial violence and the intimidation and terror that sprung from lynching,” Lieberman said. “It was intentional extrajudicial killings, in an effort to make sure that there was terror.”
Congress is considering additional bills that would address racial disparities and racism in the federal criminal justice system.
For example, the Congressional Black Caucus is urging Senate Democrats to get rid of the country’s sentencing disparities for crack and powder cocaine that disproportionately give Black Americans longer and tougher prison sentences.
“Making our justice system more just is the really critical thing,” Booker said.
There were more than 4,400 lynchings in the United States between the end of the Civil and War and World War II, according to the Equal Justice Initiative. These lynchings and other modes of racial terror were often perpetuated by community newspapers in the 1800s and 1900s, according to an extensive analysis of news clippings by the Howard Center.