Experts warn the new anti-lynching law may not actually help prevent hate crimes
After a century-long effort, lynching is now considered a federal hate crime. The Emmett Till Antilynching Act — signed into law by President Biden this week — is meant to hold people convicted of hate crimes accountable. But legal experts warn that the law may not be as effective as intended.
The law targets defendants who conspire to commit a hate crime that results in serious bodily injury or death. Federal prosecutors can now seek up to a 30-year sentence — in addition to prison time stemming from other charges, such as murder or assault.
Increasing sentences does little to prevent crime
Kara Gotsch, deputy director of The Sentencing Project, argues that compiling sentences does more harm than good. One reason she cites is because there's little proof that hate crime laws such as the anti-lynching act actually deter hate crimes.
She says that the certainty of a punishment is more likely to prevent crimes, rather than the severity.
"We often react and assume that somehow crime will end if we just make sentences longer or punishments tougher," Gotsch tells NPR. "But that's not how crime works."
The federal government has previously supported this position. In a 2016 report, the Justice Department found that laws and policies intended to deter crime by focusing on increased sentences are ineffective. This is partly because people know very little about criminal sanctions for specific crimes.
The Sentencing Project, which advocates for reforms within the criminal legal system didn't endorse the law, but worked with the office of Rep. Cori Bush, D-Mo., to negotiate the law's maximum penalty down to 30 years from the originally proposed life sentence.
"We did not endorse the bill because we don't believe in expanding criminal punishments and creating additional federal crime," Gotch says.
But with overwhelmingly bipartisan support in both chambers of Congress, lawmakers voted to enhance sentencing under the new legislation — even with other hate crime statutes on the books. The anti-lynching measure follows a recent rise in hate crimes across the country.
In the criminal legal system, people convicted of hate crimes that would be considered textbook lynchings under the new law have been dealt severe sentences in the absence of anti-lynching legislation.
In February, for example, the three white men involved in the murder of Ahmaud Arbery, a 25-year-old Black jogger, were convicted in federal court of hate crimes. They are currently awaiting sentencing for their convictions — in addition to their life sentences in the state of Georgia. In 2015, white supremacist Dylann Roof killed nine members of a Black congregation in South Carolina. He was convicted of federal hate crimes and has been sentenced to death.
Data show hate crime laws disproportionately target Black people
When it comes to the new anti-lynching law, experts speaking with NPR also warn against propping up a criminal legal system that disproportionately incarcerates Black Americans. Researchers and civil rights advocates point out that hate crime laws are often applied against the communities they are designed to protect.
A June 2021 report from Stanford Law School and the Brennan Center for Justice revealed that although hate crime laws are meant to prevent bias-motivated violence, they are not free from bias-motivated enforcement.
Voluntary data reported to the federal government suggests that hate crimes affect Black victims more than any other group. Yet, according to the Stanford report, Black people represented less than a quarter of reported hate crime offenders in 2018 and about one-third of violent hate crime offenders between 2004 and2015.
Shirin Sinnar, a Stanford Law professor who worked on the report, told NPR that those numbers are higher than expected.
"We don't know how many people and who is actually charged with or convicted for a hate crime," she says.
The data is not precise, partly because it's based on voluntary reporting that does not account for prosecution, conviction and sentencing. Additionally, hate crime victims often do not report.
But the numbers signal one thing that experts say the federal government could do to effectively deter hate crimes: support and education. Stanford's report points out that hate crime laws focus on punishment instead of healing and supporting affected communities.
Sinnar says this means acknowledging past racial violence and its pervasiveness, through reparations or public lynching memorials.
"It's not just taking down statutes of Confederate generals, but also marking the sites in our history where thousands of people were lynched," she says.
Michael Lieberman, senior policy counsel at the Southern Poverty Law Center, says that adding this new law is important symbolically.
"There is something very important to be able to call a crime what it is," he says. "The federal government was incapable of calling a lynching what it was until this week."
But he also agrees that educational efforts would be a better tool to actually deter hate crimes.
"It's much better to prevent a hate crime than to have a new law that needs to be investigated and enforced."
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Transcript
MILES PARKS, HOST:
Lynching is now a federal hate crime after President Biden signed the Emmett Till Anti-Lynching Act into law this week. The measure allows federal prosecutors to seek an additional 30-year sentence for people who conspire to commit hate crimes that result in serious bodily injury or death. It's a law that's been more than 100 years in the making. The first federal anti-lynching legislation was introduced in 1900. But as Vice President Kamala Harris made clear at this week's signing ceremony, the new law is meant to address hate crimes in the present day.
(SOUNDBITE OF ARCHIVED RECORDING)
VICE PRESIDENT KAMALA HARRIS: Lynching is not a relic of the past. 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 to account.
PARKS: So how exactly will this law fight the hate crimes of today? To talk through that, we called Michael Lieberman. He's the senior policy counsel for the Southern Poverty Law Center, which is a civil rights legal organization that focuses on these issues. He joins us now. Michael Lieberman, welcome.
MICHAEL LIEBERMAN: Thanks, Miles. Glad to be with you.
PARKS: I want to start by just talking about what lynching means. How is it defined when it comes to this law?
LIEBERMAN: Well, the law itself actually does not define lynching, but lynching is generally understood to be premeditated extrajudicial killing by a group.
PARKS: And this is a term that I think, for a lot of people, harkens back to, you know, the early to mid-20th century. The law itself is named after Emmett Till, who was a Black teenager who was lynched in Mississippi in 1955. I'm wondering how often we're seeing lynching happening today in America.
LIEBERMAN: Well, fortunately, very rarely. The Tuskegee Institute did a really comprehensive survey of lynchings and found something like 4,700 lynchings between the year 1892 and 1908. The vast majority, something like 3,500 of those people, were African Americans. Fortunately, this is not a modern-day occurrence. I think the Ahmaud Arbery case can easily be described as a lynching. And the only reason, Miles, for federal hate crime laws when you have a situation, as we do, with 46 states and the District of Columbia having their own hate crime law - the only reason to have federal hate crime laws is as a backstop to those state hate crime laws when state and local officials either cannot or will not pursue an investigation and a prosecution under their own laws.
PARKS: So in the case you mentioned, the Ahmaud Arbery case, the three men who were involved in that were convicted of federal hate crimes, and they're currently awaiting sentencing. And then in 2015, when Dylann Roof killed nine Black people at Mother Emanuel Church in Charleston, S.C., he was also convicted of federal hate crimes and was sentenced to death. Why is this new law, this new anti-lynching law, then necessary if we have these other federal hate crime laws already on the books?
LIEBERMAN: Right. So I think there's a symbolic aspect of this new law and a practical aspect. The practical aspect would be the enforcement mechanism. And I think it's really important that after 120 years of trying to get in a federal lynching law, it has been finally enacted this week and signed into law by President Biden. So there's something very important to be able to call a crime what it is. The federal government was incapable of calling a lynching what it was until this week. But there's also a very important symbolic aspect about this, too. The law is a teacher. Law shapes attitudes. And when you have a federal anti-lynching law, you have a teachable moment to be able to talk about the history of lynching. It's really important to talk about American history, the good and the bad, inclusive education, teaching truth. And when you have the opportunity for a teachable moment like this, you want to be able to take advantage of it.
PARKS: So thinking about how this is going to affect hate crimes today, there is a lot of research, recent research, that shows that longer sentencing does not actually help to deter crime. In 2016, the National Institute of Justice, an agency within the U.S. Department of Justice, published a report that affirmed this. Does this anti-lynching law, which adds harsher penalties, fit the modern thinking of how to actually stop these kinds of hate crimes?
LIEBERMAN: Yeah. So I guess I have two responses to that. First, I think everyone hopes that this new law will never have to be enforced, that there won't be a lynching that would have to be investigated and prosecuted. The law is a blunt instrument in facing off against hate and extremism. It's much better to prevent these crimes from occurring in the first place. It's true that there is a symbolic aspect, a public awareness aspect of this law, but there's also an accountability aspect of it. So it's not an increase of 30 years. It's a 30-year penalty. It's not an enhancement. It, for the first time, makes this crime eligible for up to 30 years.
PARKS: Are there other things, I guess societally, that you think of that can also help decrease the amount of hate crimes in the U.S.?
LIEBERMAN: Absolutely. What we need to do is focus on prevention. This administration, in May of last year, promulgated something called the National Strategy for Countering Domestic Terrorism. And there were four pillars. One of them is about, you know, communication, better coordination. One of them is about enforcement. But one of them is also about education, long-term, systemic efforts to address hate, racism, extremism. And that is where we need to focus much more attention. But we also want to see a concomitant commitment, a parallel commitment to prevention initiatives, civics education, understanding the Bill of Rights, democracy-building efforts, working on online radicalization of youth. These types of things have the potential to prevent hate crimes from occurring in the first place, and it's much better to prevent it in the first place.
PARKS: That was Michael Lieberman. He is the senior policy counsel for the Southern Poverty Law Center. Michael, thank you so much.
LIEBERMAN: Thank you.
(SOUNDBITE OF EMILIANO BLANGERO'S "IN MY FEARS") Transcript provided by NPR, Copyright NPR.
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