The three African-American Senators – Kamala Harris, Tim Scott, and Cory Booker – have introduced a bill to make lynching a federal crime. The bill has been co-sponsored by 16 other Senators, including Virginia’s Tim Kaine. See the New York Times story on the bill here.
The bill is quite simple – it defines a new crime, set out at 18 U.S.C. §250 –
§ 250. Offenses involving lynching.
Whoever willfully, acting as part of any collection of people, assembled for the purpose and with the intention of engaging in conduct described in paragraph (1) or (2)(A) of section 249(a) against any person, causes death to any person, shall be imprisoned for any term of years or for life, fined under this title, or both.
The section that it refers to – 18 U.S.C. §249 – is the federal hate crimes statute, which, in a nutshell, makes it a federal crime to cause bodily injury to any person because of the actual or perceived race, color, religion, or national origin of any person. (There is a persistent, but persistently unsuccessful, effort to add sexual preference to the list of protected categories.) To be picky, the attack must also involve someone traveling across state lines, or using a telephone or e-mail or some other mode of communication that crosses state lines, or uses a weapon that traveled in interstate commerce, or interferes with some economic activity of the victim – requirements added in an effort to give a federal court jurisdiction to prosecute what would otherwise be a simple state assault crime.
The essential elements of this proposed crime of lynching – a term that is not defined in federal law – are:
- Being a part of a group
- That intends to inflict bodily injury (or death) on any person
- Because of the actual perceived race, color, religion or national origin of any person
- With the required federal connection of interstate travel, communication, or commercial activity.
This bill sounds more revolutionary than it is – all that it actually does is to allow for a different standard of group liability for anyone participating in a mob action. It is already a violation of federal law for an individual to willfully cause bodily injury to someone because of the race, etc., of the victim. What this new bill adds can be seen in the following scenario:
Suppose you are part of a group of neo-Nazis, and the group comes across a black man and a white woman holding hands. The group starts harassing this inter-racial couple, and then attacks the black man and beats him severely for having had the audacity to hold hands with a white woman.
In addition to various state law violations, any person engaged in the beating could be prosecuted under the existing federal hate crime under 18 U.S.C. §249. This new bill, as I read it, would give the federal court a basis to prosecute everyone in the group, whether or not they actually laid hands on the victim.
This is a big deal, because the rules on criminal liability for group activity are pretty technical. Under present federal law, a member of the group could be prosecuted under any of the following theories:
- You personally kicked the victim;
- You aided and abetted the kicker by holding down the victim, or driving him to the scene of the crime, or doing some other act that furthers the commission of the crime, knowing that what you were doing was going to further the commission of the crime.
- You weren’t involved in the attack, but on hearing that your buddy had attacked the victim, you hide him in your basement (accessory after the fact).
- You and your buddy agree that the victim should be attacked, and you make a plan for the victim to be shot (conspiracy).
But suppose you and 19 of your friends have just been at a speech by a neo-Nazi in which he tells you that you should go out and look for black people to beat up. As you are walking around the streets of New York, you come across the inter-racial couple, and your friend goes over to beat the black man.
Are you guilty of any federal crime?
- You did not personally attack the victim.
- You did not do anything to make the attack happen – you were just standing there.
- You didn’t help your friend get away or avoid detection.
- You and your friend never discussed attacking this person, and you made no agreement that it should happen.
Under existing federal law, it would be very tough to punish anyone other than the actual attacker. As I read it, if passed, this bill would increase the number of people in the mob who could be prosecuted for the attack. Under this proposed new law, all 20 of you in the group could be prosecuted, because the group intended to assault someone because of the victim’s race, and someone in the group in fact assaulted someone because of the victim’s race.
Senator Mitch McConnell has said, in response to news of the filing of the bill, that he was surprised that there wasn’t already a law against lynching. He is probably remembering the debate that resulted in the passage of the hate crimes bill in 2009. He is probably not thinking of the issues of accomplice liability that this new proposal addresses.
So – if you have read to the end of this, you now know more about federal law as it applies to lynching than most of the U.S. Senators.
