¶ … Matthew Shepard Act FBI (2009). Matthew Shepard/James Byrd, Jr. Hate Crimes Prevention Act of 2009. Federal Bureau of Investigation. Web.

This source outlines the practical enforcement mechanisms of the Act from the FBI perspective. It provides guidance for FBI agents in dealing with potential hate crimes.

Holder, Eric. (2009). The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009. U.S. Department of Justice. Web.

This testimony from then-Attorney General Holder outlines the text of the Act, to clarify what exactly this Act is.

ABC News. (2004). New details emerge in Matthew Shepard murder. ABC News. Web.

This article from a major news source outlines the details of the Shepard case. It provides critical background to understand why the law was passed.

HRC (2016). Hate crimes law. Human Rights Campaign. Web.

This source, from a human rights activist group, highlights the historical context of the Act, the support it had when passed. The context is important to understanding the changes that the Act brought about.

Biography. (2016). James Byrd Jr. Biography.com. Web.

This source highlights the details of the James Byrd Jr. case, including the racist background of the perpetrators, and how the case fits in with the law.

Introduction

The horrific murders of James Byrd Jr. and Mathew Shepard gave rise to legislation to provide protections for individuals of protected classes from hate crimes. The Mathew Shepard and James Byrd Jr. Hate Crimes Prevention Act was passed in 2009, signed into law by President Obama. The law has the purpose of providing law enforcement with greater powers to prosecute those who are involved in hate crimes. Essentially, the law elevates hate crimes above other crimes, giving them special status that make it easier for law enforcement to gain a conviction and to ensure more stringent sentencing for hate crimes than for other crimes.

Background of the Law

Civil rights groups had long been seeking a national hate crime law. A hate crime law is defined as a law that specifically targets crimes that were committed as hate crimes. A hate crime is one that is motivated by the "perpetrator's bias against the victim" (HRC, 2016). A hate crime serves as an act of terror against members of these communities, making them afraid to live in certain places or afraid to have freedom to move freely either about the country or in their communities (HRC, 2016). Hate crimes are said to often be more violent in nature than their non-hate equivalents.

Since 1968, there were hate crime laws in place for the basis of race, religion and national origin, if the victim was engaged in specific, federally-protected activities (HRC, 2016). Many categories of people were not included in the law, including members of the LGBTQ community, the disabled, and anybody not engaged in a federally-protected activity. For example, in the Shepard case there were no federal or state laws that prescribe hate crime status, which meant that law enforcement could only prosecute on the basis of regular status for the crime (HRC, 2016).

The murders of James Byrd, Jr. and Mathew Shepard were specifically singled out for the header of the law because of their brutality and the hate-based nature of those crimes. The Shepard case had received a tremendous amount of media attention and had become a cause celebre among the LGBTQ community activists seeking greater hate crime protections (ABC News, 2004). Two of the three killers in the Byrd murder were known racists. In the Byrd trial, those two were specifically given death sentences while the third defendant received life in prison (Biography, 2016). With Shepard, the law demonstrated an extension of protections to the LGBTQ community, and with Byrd it was a matter of extending the somewhat limited 1968 protections on race.

Objective of the Law

The text of the law outlines how it contributes to law enforcement efforts with respect to prosecuting hate crimes. The U.S. Department of Justice outlines three specific subsections. The first section broadens the hate crime standard. Whereas prior law covered only six federally-protected activities, the first subsection specifically allowed that prosecutors do not need to prove any of those activities in order to pursue hate status for a crime (Holder, 2009).

The second subsection extends hate crime protections to a wider class of victims, to include gender, disability, sexual orientation or gender identity. This section also provides...

This is an interesting component of the law because it probably means that neither the Shepard nor Byrd murders could actually have been prosecuted as hate crimes under this law.
The third clause of the Act provides for prosecution of acts committed within the Special Maritime and Territorial Jurisdiction of the United States, but it also casts limits to acts of violence committed through weapons. Assaults without weapons, and threats of violence are not criminalized by this Act (Holder, 2009).

Does the Law Prevent Discrimination?

The objective of the Shepard Law is, in a roundabout way, to prevent discrimination. By providing law enforcement with greater authority to pursue hate crime designation for an assault or murder, greater penalties can be brought upon the perpetrators. In theory, having stronger penalties should serve as a means of reducing crime. People might think twice about engaging in a hate crime specifically because they know that the chances of conviction are going to be higher, and that their penalties will also be higher. It is notable that in the Byrd case the two known racists were given death sentences while the third perpetrator was given a life sentence. The two in the Shepard case were given double life sentences. While there was no hate crime designation for the state of Wyoming, the sentences ensured that they would never leave prison (ABC News, 2004).

The federal law also serves to send a signal to states, to provide a framework for laws that they can enact to push for the same protections. The federal government is limited mainly by the commerce clause, and cannot apply its law in situations such as those in the Shepard and Byrd cases. There are many instances where states model their own laws after federal laws, filling in the jurisdictional gaps that exist. Most states model their workplace discrimination laws after the Civil Rights Act of 1964, for example. This law is intended to serve much the same purpose.

The issue of protection, however, is a little less clear. The law serves to provide law enforcement with greater enforcement powers, in particular greater punitive powers. Yet, in both of these cases convictions were reached and penalties appropriate. The law's purpose then is mostly to raise awareness of hate crimes, and ensure that law enforcement is aware that hate crimes exist, that hate can be a motive, and that this will help law enforcement to solve cases more easily, and convict more easily. But is that protection?

The law extends the law to more groups, and more situations. But ultimately, a law that punishes perpetrators after the crime does not serve as protection. For the law to come into effect, somebody has to be assaulted or killed. That is not protection. In these two cases, it is highly doubtful that the perpetrators would have been given pause for thought by the existence of a hate crime law. The hope, then, is perhaps that others might.

What this means, though, is that the protections are thin, and hypothetical. One is not protected if they need to actually be a victim of crime. The value of law like this is that it puts hate crime in a more public eye. This should create a greater level of awareness for people from an early age of hate crime, so that more people understand what hate crime is, why it happens, and can take steps to check their own hate. How much of an impact this has on avowed bigots like those in the Byrd case is debatable, but the reality is that the law does serve to change the conversation, and get the issue to the fore.

The HRC argues that the Act is historic. It makes the claim that this is the first law to provide law enforcement with the means to recognize and protect the LGBTQ community. It marked a change in the response of the federal government to the community, a reversal of a history of discriminatory laws. Such laws are still being passed at state levels today. The law may not actively prevent crimes, but it does signal that a new era has been entered, one where members of the LGBTQ community has the basic human right to be free from hate violence.

Conclusion

In a literal sense, the Mathew Shepard Act provides little in the way of protections to anybody -- a serious crime needs to be committed before any of the Act's provisions come into play. There is little evidence to support the idea that the threat of stricter punishment will have a preventative effect, reducing the instance…