What an anti-lynching law means in 2022

On Tuesday, President Joe Biden signed into law a bill that classifies lynching as a federal hate crime, punishable by up to 30 years in prison. Though Biden emphasized the significance of the legislation during a ceremony and praised its broad support, the bill’s path to approval has been fraught: It has taken more than 100 years and 200 attempts for proponents to achieve victory.

The Emmett Till Anti-lynching Act, named after the 14-year-old boy who was kidnapped, brutally beaten, and shot by a mob of white men in Mississippi in 1955 before they threw him into a river, allows an act to be prosecuted as a lynching when a person conspires to commit a hate crime that results in death, serious bodily injury, and other serious harms.

The bill’s passage is long overdue, but its arrival still has an important symbolic power and will give federal prosecutors another tool to prosecute some of the country’s most brutal hate crimes. In other words, the act builds on the severity of the federal hate crimes laws that already exist.

“Lynching is a clear example of one’s inhumanity toward another. It’s a uniquely American act of terrorism that is motivated by hatred, and, before today, was never punished by our legal system,” Rep. Bobby Rush (D-IL), the longtime sponsor of the legislation, told Vox. “Emmett Till would’ve been 80 years old. I’m 75, and I just imagine the kinds of contributions he would have made to our society. Biden’s signing of the Emmett Till Anti-lynching Act sends a message that America will no longer continue to ignore this shameful chapter of our history and that the government engaged in legislative failure for far too long.”

The new act amends the existing federal criminal code, created by the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, which President Barack Obama signed into law in 2009. The language of the new provision suggests that there is a difference between lynching and murder.

The difference is in the historic and present-day effect of lynchings; the idea that the person who was killed is not the only victim. And lynchings are typically motivated by the victim’s race, religion, sexual orientation, or other identifier. “Lynching has typically sent a message to an entire community that ‘you’re not safe here’ or ‘you could be next.’ Lynching has typically been motivated by racial animus and harms an entire community,” said Justin Hansford, a law professor at Howard University.

The three men convicted in 2021 of murdering Ahmaud Arbery — Travis and Gregory McMichael and William “Roddie” Bryan — could have been charged with lynching if the law were in effect, Rush told Vox. On top of the state-level charges that they were convicted of — among them malice murder, felony murder, and false imprisonment — their crime could have been tried as a “lynching” at the federal level. A federal grand jury did indict the three men on hate crimes, attempted kidnapping, and separate counts of using firearms in the process. According to Rep. Rush, the man who murdered Heather Heyer with his vehicle in Charlottesville, Virginia, in 2017 could have also been charged under the new law.

A Justice Department official who spoke on condition of anonymity told Vox that the new provision would, in fact, allow for greater penalties for “a subset of completed hate crimes committed by multiple people acting together.” The Justice Department pointed out that the victim does not have to be killed for a perpetrator to be charged with lynching; “serious bodily injury” would suffice.

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Since at least 1900, legislators have tried to criminalize lynching. That year, North Carolina Rep. George H. White, then the only Black person in Congress, introduced an anti-lynching measure that eventually failed. Similar legislation was introduced in nearly every subsequent decade but was thwarted by the Senate filibuster or opponents who claimed the issue should be left to states.

In 2018, then-Sen. Kamala Harris, along with Sens. Cory Booker (D-NJ) and Tim Scott (R-SC), introduced similar legislation — the Justice for Victims of Lynching Act — but it was never taken up by the House. As recently as 2020, the House passed a previous version of Rush’s bill, but Sen. Rand Paul (R-KY) objected to its unanimous passage in the Senate on the grounds that the bill was too broad.

Following a revision to include the phrase “death or serious bodily injury” and an extension of the maximum sentence from 10 years to 30, the bill now represents the first time the country has codified an anti-lynching measure, signaling national recognition that lynchings have destroyed lives and families in some of the ugliest and most tragic ways — and that the federal government never intervened.

“Between 1936 and 1938, the national headquarters of the NAACP hung a flag with the words ‘A man was lynched yesterday,’ solemn reminders of the dark eddies of our nation’s past,” Booker told Vox. “Although no legislation will reverse the pain and fear felt by those victims, their loved ones, and Black communities, this legislation is a necessary step America must take to heal from the racialized violence that has permeated its history.”

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Two years after a stunted racial reckoning in America, terror against minority groups remains ever-present — the FBI found that hate crimes were at their highest levels in 12 years in 2020. But even so, does the word “lynching” resonate with people in 2022? Does the new law have the power to deter racist violence? Will the federal government be inclined to prosecute perpetrators under the new legislation? And will locking up perpetrators bring justice and healing to victims, their loved ones, and the broader communities impacted?

“The most transformative civil rights legislation that we have has been paid for by the blood of Black people,” Damon Hewitt, the president and executive director of the Lawyers’ Committee for Civil Rights Under Law, told Vox. “Most victims of these crimes are dead. So this is definitely symbolic for surviving family members since a prison sentence won’t bring someone back.”

But there’s more to the legislation, Hewitt said. “One interesting thing about the Black experience, when it comes to the justice system, is it’s not just about being the target of harassment and state violence. There’s a desire to be protected and to be recognized as a full American, a full citizen, a full human. When people talk about Black Lives Matter, that’s what it means,” Hewitt said. “This legislation sends a signal that, yes, the lives of Ahmaud Arbery and others lynched do matter, that the people who commit violence against them will be prosecuted under the full extent of the law.”

Lynching back then — and now

We now know that more lynchings took place than were previously known, evidence that investigating and recording lynchings is a difficult process. A recent report from the Equal Justice Initiative found that nearly 6,500 “racial terror lynchings” took place in America between 1865 and 1950. The report documents nearly 2,000 Black people were lynched by white mobs between 1865 and 1877, during Reconstruction after the Civil War, alone. The organization defines a racial terror lynching, which they say peaked between 1880 and 1940, as “violent and public acts of torture that traumatized Black people throughout the country and were largely tolerated by state and federal officials.”

Research from the NAACP, which defines “lynching” as “the public killing of an individual who hasn’t received due process,” found that 4,743 lynchings occurred in the United States between 1882 and 1968, with the majority of them — 3,446 — being lynchings of Black Americans. Other minority groups and some white people were lynched, too, like the Texas lynching of 15 Latin Americans one night in 1918 and the mass lynching of Chinese people in 1871.

These reports reveal that lynching wasn’t just about a Black person being hanged by the neck but also about “the slow, methodical, sadistic, often highly inventive forms of torture and mutilation,” as historian Leon Litwack wrote in Trouble in Mind: Black Southerners in the Age of Jim Crow. For this reason, some modern-day murders, Hewitt said, can still be considered lynchings.

“Lynching, for some people, might feel like a word that is starting to lose its power because it doesn’t feel real and present,” Hewitt said. “But it is kidnapping or an attempt to kidnap. It is torture. It is the sexual abuse that sometimes happens when someone is kidnapped. It is murder.”

Under this definition, examples of modern-day lynchings abound: There’s Abner Louima whom white police officers brutally beat and sodomized with a wooden stick in New York City in 1997; In 1998, James Byrd Jr. was kidnapped, beaten, chained to a car, and dragged for three miles before he died. Many referred to the more recent killings of George Floyd and Ahmaud Arbery as lynchings. Both men were held against their will, publicly brutalized, and killed at the hands of white men.

How the law fits the present

The new law would cement a meaning of lynching into the federal code. “Whoever conspires to commit a hate crime offense that results in death or serious bodily injury or that includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill shall, if death or serious bodily injury results from the offense, be imprisoned for not more than 30 years, fined in accordance with this title, or both,” the law reads.

The provision also counters modern interpretations of lynchings. Think Supreme Court Justice Clarence Thomas’s use of the phrase “high-tech lynching” when his then-colleague Anita Hill called him out for inappropriate sexual behavior in the workplace during his Supreme Court nomination hearings, or Trump’s more recent use of the term to describe his impeachment. “People have certainly misused the term and over the years it has started to lose its force,” Hewitt said. But there are still a number of crimes and killings that we would still consider lynchings, he said.

Additionally, the law gives the federal government power to bring more charges against perpetrators, especially those who act together. People who work together to commit a crime will be charged the same regardless of their role in an attack. A Justice Department official told Vox that prosecutors will be able to charge a defendant under both the new anti-lynching act and under the provisions that already existed.

The law might also bring greater attention to the various cold cases that involve the mysterious deaths of Black people. “In these cases there often isn’t enough information to find the perpetrator and charge someone so they are often classified as suicides. But a lot of these cases could very well be classic lynchings,” Hewitt said.

In 2020, two Black men, Robert Fuller and Malcolm Harsch, were both found dead from hanging in Southern California just days apart from one another. Authorities claimed there was no foul play in either death, though both families were skeptical. There were no further investigations in either death. Federal prosecutors likely wouldn’t bring charges forward without more information, but since the law now defines lynching, lawmakers hope that prosecutors will be inclined to give these cases another look.

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Valerie Macon/AFP via Getty Images

It’s unclear how the new legislation would handle deaths at the hands of law enforcement. “When it’s the police, we usually think about excessive force under Section 1983, which allows someone to sue the government if they’ve been a victim of police brutality,” Hansford, the Howard law professor, said. “These hate crimes laws are usually reserved for people who are not on duty as police officers when they commit a crime.”

For example, scholars have suggested that the death of Sandra Bland, who reportedly died by suicide by hanging herself in a jail cell after being pulled over by a police officer for a traffic violation in Texas in 2015, could be considered a lynching, should investigators find evidence that law enforcement officials were involved. But even if that evidence emerged, an officer on duty would argue that they were defending themselves, Hansford said, and the DOJ might be less likely to bring lynching charges against a police officer.

Though commentators viewed George Floyd’s murder as a lynching, Minnesota’s attorney general declined to charge former police officer Derek Chauvin with a hate crime, claiming there was no evidence to prove that Floyd’s race motivated Chauvin to pin Floyd down with his knee. The DOJ did eventually bring charges against Chauvin that he pleaded guilty to, but they were not hate crime charges.

“This bill isn’t just saying, ‘Don’t lynch people anymore because we don’t do that anymore.’ It builds upon the body of a statutory framework that the Department of Justice has at its disposal,” Hewitt said.

Still, the extent of the new legislation’s power will come down to whether the Department of Justice plans to even use it. As Vox’s Jamil Smith reported, hate crimes prosecutions themselves are uncommon and can be rarer depending on who is in office.

Between 2005 and 2009, the DOJ investigated 647 hate crimes. They investigated fewer under President Donald Trump — 597 between 2015 and 2019, an 8 percent decrease. “In total, however, of nearly 1,900 suspects investigated between 2005 and 2019, 82 percent were not prosecuted. The overwhelming majority of those cases were not pursued for lack of evidence,” Smith wrote.

An official at the Department of Justice told Vox that “eliminating hate crimes and bias-motivated violence” is one of the department’s top priorities.

“I know that the activists and people who are freedom-seeking won’t just sit around and let the Justice Department ignore this power granted to them under this act,” Rep. Rush told Vox. “Local law enforcement tried to ignore what happened to George Floyd and Ahmaud Arbery, but the people didn’t let that happen.”

Hansford added that there’s more room for healing and thinking more broadly about how lynching affects entire communities. “These laws make sure that perpetrators get more time behind bars but they don’t consider how the family moves forward financially and psychologically,” Hansford said. “America still needs to recognize that our whole community deserves healing.”