Subverting Symbolism: The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act and Cooperative Federalism

Hate crimes continue to persist in the United States and undermine the traditions and values to which our country aspires. Until recently, however, the stringent jurisdictional limitations of existing federal legislation made it difficult for the federal government to prosecute these crimes. In October 2009, President Obama signed into law the Matthew Shepard James Byrd Jr., Hate Crimes Prevention Act (the 'HCPA'). The HCPA significantly expands the federal government’s authority to prosecute defendants accused of hate crimes because it dispenses with a previous jurisdictional requirement that made it difficult to prosecute many hate crimes. The HCPA also represents an expansion of federal authority because it protects a broader class of victims than pre-existing federal hate crimes legislation. In addition to protecting victims of violent acts based upon race, color, religion, national origin, the HCPA is the first federal legislation to protect victims of crimes where the underlying motivation was the victim’s sexual orientation, gender, or gender identity. While many observers view this broad grant of federal authority as a monumental civil rights victory, critics view it as an unnecessary symbolic measure that is, in their view, part of a continuing trend toward 'overfederalization' of the criminal law. This article does not intend to contribute to the extensive body of scholarship devoted to the symbolism of hate crimes legislation or the propriety of the federal government’s authority to prosecute such crimes. Instead, this article refocuses the debate to address new issues regarding the federal government’s enforcement and implementation of this legislation. Drawing upon the principles of cooperative federalism, this article proposes a model of prosecution that ensures the federal government’s authority to prosecute hate crimes is not merely symbolic, but is implemented in a manner that respects the principles and boundaries of federalism in the criminal justice context. To accomplish these goals, this article proposes a regime that relies on federal-state collaboration to maximize resource allocation in the prosecution of hate crimes. This proposal also includes, among other things, allowing state prosecutors to receive special designations to prosecute these cases in federal court. This article concludes that a multi-jurisdictional approach is necessary to effectively address hate crimes in the United States.