Senate Legislative Counsel

Draft Copy of O:\ALB\ALB18A48.XML

1 Purpose: In the nature of a substitute.

2
3
4 S. 3178

5 To amend title 18, United States Code, to specify lynching as a

6 deprivation of civil rights, and for other purposes.
7 Referred to the Committee on __________ and ordered to be
8 printed
9 Ordered to lie on the table and to be printed
10 AMENDMENT IN THE NATURE OF A SUBSTITUTE INTENDED TO BE
11 PROPOSED BY _______
12 Viz:
13 Strike all after the enacting clause and insert the following:

14 SECTION 1. SHORT TITLE.

15 This Act may be cited as the “Justice for Victims of Lynching Act of 2018”.

16 SEC. 2. FINDINGS.
17 Congress finds the following:
18 (1) The crime of lynching succeeded slavery as the ultimate expression of racism in the
19 United States following Reconstruction.
20 (2) Lynching was a widely acknowledged practice in the United States until the middle of
21 the 20th century.
22 (3) Lynching was a crime that occurred throughout the United States, with documented
23 incidents in all but 4 States.
24 (4) At least 4,742 people, predominantly African Americans, were reported lynched in the
25 United States between 1882 and 1968.
26 (5) Ninety-nine percent of all perpetrators of lynching escaped from punishment by State
27 or local officials.
28 (6) Lynching prompted African Americans to form the National Association for the
29 Advancement of Colored People (referred to in this section as the “NAACP”) and prompted
30 members of B’nai B’rith to found the Anti-Defamation League.
31 (7) Mr. Walter White, as a member of the NAACP and later as the executive secretary of
32 the NAACP from 1931 to 1955, meticulously investigated lynchings in the United States and
33 worked tirelessly to end segregation and racialized terror.
34 (8) Nearly 200 anti-lynching bills were introduced in Congress during the first half of the
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1 20th century.
2 (9) Between 1890 and 1952, 7 Presidents petitioned Congress to end lynching.
3 (10) Between 1920 and 1940, the House of Representatives passed 3 strong anti-lynching
4 measures.
5 (11) Protection against lynching was the minimum and most basic of Federal
6 responsibilities, and the Senate considered but failed to enact anti-lynching legislation despite
7 repeated requests by civil rights groups, Presidents, and the House of Representatives to do
8 so.
9 (12) The publication of “Without Sanctuary: Lynching Photography in America” helped
10 bring greater awareness and proper recognition of the victims of lynching.
11 (13) Only by coming to terms with history can the United States effectively champion
12 human rights abroad.
13 (14) An apology offered in the spirit of true repentance moves the United States toward
14 reconciliation and may become central to a new understanding, on which improved racial
15 relations can be forged.
16 (15) Having concluded that a reckoning with our own history is the only way the country
17 can effectively champion human rights abroad, 90 Members of the United States Senate
18 agreed to Senate Resolution 39, 109th Congress, on June 13, 2005, to apologize to the victims
19 of lynching and the descendants of those victims for the failure of the Senate to enact
20 anti-lynching legislation.
21 (16) The National Memorial for Peace and Justice, which opened to the public in
22 Montgomery, Alabama, on April 26, 2018, is the Nation’s first memorial dedicated to the
23 legacy of enslaved Black people, people terrorized by lynching, African Americans
24 humiliated by racial segregation and Jim Crow, and people of color burdened with
25 contemporary presumptions of guilt and police violence.
26 (17) Notwithstanding the Senate’s apology and the heightened awareness and education
27 about the Nation’s legacy with lynching, it is wholly necessary and appropriate for the
28 Congress to enact legislation, after 100 years of unsuccessful legislative efforts, finally to
29 make lynching a Federal crime.
30 (18) Further, it is the sense of Congress that criminal action by a group increases the
31 likelihood that the criminal object of that group will be successfully attained and decreases
32 the probability that the individuals involved will depart from their path of criminality.
33 Therefore, it is appropriate to specify criminal penalties for the crime of lynching, or any
34 attempt or conspiracy to commit lynching.
35 (19) The United States Senate agreed to unanimously Senate Resolution 118, 115th
36 Congress, on April 5, 2017, “[c]ondemning hate crime and any other form of racism,
37 religious or ethnic bias, discrimination, incitement to violence, or animus targeting a minority
38 in the United States” and taking notice specifically of Federal Bureau of Investigation
39 statistics demonstrating that “among single-bias hate crime incidents in the United States,
40 59.2 percent of victims were targeted due to racial, ethnic, or ancestral bias, and among those
41 victims, 52.2 percent were victims of crimes motivated by the offenders’ anti-Black or
42 anti-African American bias”.
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1 (20) On September 14, 2017, President Donald J. Trump signed into law Senate Joint
2 Resolution 49 (Public Law 115–58; 131 Stat. 1149), wherein Congress “condemn[ed] the
3 racist violence and domestic terrorist attack that took place between August 11 and August
4 12, 2017, in Charlottesville, Virginia” and “urg[ed] the President and his administration to
5 speak out against hate groups that espouse racism, extremism, xenophobia, anti-Semitism,
6 and White supremacy; and use all resources available to the President and the President’s
7 Cabinet to address the growing prevalence of those hate groups in the United States”.
8 (21) Senate Joint Resolution 49 (Public Law 115–58; 131 Stat. 1149) specifically took
9 notice of “hundreds of torch-bearing White nationalists, White supremacists, Klansmen, and
10 neo-Nazis [who] chanted racist, anti-Semitic, and anti-immigrant slogans and violently
11 engaged with counter-demonstrators on and around the grounds of the University of Virginia
12 in Charlottesville” and that these groups “reportedly are organizing similar events in other
13 cities in the United States and communities everywhere are concerned about the growing and
14 open display of hate and violence being perpetrated by those groups”.

15 SEC. 3. LYNCHING.
16 (a) Offense.—Chapter 13 of title 18, United States Code, is amended by adding at the end the
17 following:

18 “250. Lynching
19 “(a) In General.—
20 “(1) OFFENSES INVOLVING ACTUAL OR PERCEIVED RACE, COLOR, RELIGION, OR NATIONAL
21 ORIGIN.—If 2 or more persons willfully cause bodily injury to any other person, because of
22 the actual or perceived race, color, religion, or national origin of any person—
23 “(A) each shall be imprisoned not more than 10 years, fined in accordance with this
24 title, or both, if bodily injury results from the offense; or
25 “(B) each shall be imprisoned for any term of years or for life, fined in accordance
26 with this title, or both, if death results from the offense or if the offense includes
27 kidnapping or aggravated sexual abuse.
28 “(2) OFFENSES INVOLVING ACTUAL OR PERCEIVED RELIGION, NATIONAL ORIGIN, GENDER,
29 SEXUAL ORIENTATION, GENDER IDENTITY, OR DISABILITY.—

30 “(A) IN GENERAL.—If 2 or more persons, in any circumstance described in

31 subparagraph (B), willfully cause bodily injury to any other person because of the actual
32 or perceived religion, national origin, gender, sexual orientation, gender identity, or
33 disability of any person—
34 “(i) each shall be imprisoned not more than 10 years, fined in accordance with
35 this title, or both, if bodily injury results from the offense; or
36 “(ii) each shall be imprisoned for any term of years or for life, fined in
37 accordance with this title, or both, if death results from the offense or if the offense
38 includes kidnapping or aggravated sexual abuse.
39 “(B) CIRCUMSTANCES DESCRIBED.—For purposes of subparagraph (A), the
40 circumstances described in this subparagraph are that—
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1 “(i) the conduct described in subparagraph (A) occurs during the course of, or as
2 the result of, the travel of the defendant or the victim—
3 “(I) across a State line or national border; or
4 “(II) using a phone, the internet, the mail, or any other channel, facility, or
5 instrumentality of interstate or foreign commerce;
6 “(ii) the defendant uses a phone, the internet, the mail, or any other channel,
7 facility, or instrumentality of interstate or foreign commerce in connection with the
8 conduct described in subparagraph (A);
9 “(iii) in connection with the conduct described in subparagraph (A), the
10 defendant employs a firearm, dangerous weapon, explosive or incendiary device,
11 or other weapon that has traveled in interstate or foreign commerce; or
12 “(iv) the conduct described in subparagraph (A)—
13 “(I) interferes with commercial or other economic activity in which the
14 victim is engaged at the time of the conduct;
15 “(II) otherwise affects interstate or foreign commerce; or
16 “(III) occurs within the special maritime or territorial jurisdiction of the
17 United States.
18 “(3) OFFENSES OCCURRING IN THE SPECIAL MARITIME OR TERRITORIAL JURISDICTION OF THE
19 UNITED STATES.—Whoever, within the special maritime or territorial jurisdiction of the
20 United States, engages in conduct described in paragraph (1) or in paragraph (2)(A) (without
21 regard to whether that conduct occurred in a circumstance described in paragraph (2)(B))
22 shall be subject to the same penalties as prescribed in those paragraphs.
23 “(b) Attempt.—Whoever attempts to commit any offense under this section—
24 “(1) shall be imprisoned for not more than 10 years, fined in accordance with this title, or
25 both; or
26 “(2) if the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or
27 an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be imprisoned for
28 any term of years of for life, fined in accordance with this title, or both.
29 “(c) Conspiracy.—If 2 or more persons conspire to commit any offense under this section, and 1
30 or more of such persons do any act to effect the object of the conspiracy, each shall be subject to
31 the same penalties as those prescribed for the offense the commission of which was the object of
32 the conspiracy.
33 “(d) Certification Requirement.—
34 “(1) IN GENERAL.—No prosecution of any offense described in this section may be
35 undertaken by the United States, except under the certification in writing of the Attorney
36 General, or a designee, that—
37 “(A) the State does not have jurisdiction;
38 “(B) the State has requested that the Federal Government assume jurisdiction;
39 “(C) the verdict or sentence obtained pursuant to State charges left demonstratively
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1 unvindicated the Federal interest in eradicating bias-motivated violence; or

2 “(D) a prosecution by the United States is in the public interest and necessary to
3 secure substantial justice.
4 “(2) RULE OF CONSTRUCTION.—Nothing in this subsection shall be construed to limit the
5 authority of Federal officers, or a Federal grand jury, to investigate possible violations of this
6 section.”.
7 (b) Table of Sections Amendment.—The table of sections for chapter 13 of title 18, United
8 States Code, is amended by inserting after the item relating to section 249 the following:
9 “250. Lynching.”.

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