When Obama signed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act in the East Room in October 2009, it was the first-ever inclusion of crimes based on sexual orientation — an issue so controversial it lingered in Congress for more than a decade — that grabbed the headlines.
But that addition wasn’t the only notable change to the law. The other was the removal of a longstanding requirement that such crimes have some connection to interstate commerce, or to “federally protected activities” such as voting or applying for federal benefits.
The decision to allow prosecutions without what lawyers call a “federal nexus” was an “extremely important” development, said a former Justice Department Civil Rights Division official Samuel Bagenstos.
“The problem federal prosecutors had pursuing hate crimes in the past was that the victim had to be involved in a federally protected activity,” said Bagenstos, now a law professor at the University of Michigan. “….We ended up arguing sometimes that walking on a public street was a federally protected activity.”