DOJ Expands Authority to Approve Hate Crimes Prosecutions
By Leah Nylen | November 15, 2010 10:23 am

The Attorney General has signed an order that would allow two other Justice Department top officials to approve hate crimes prosecutions in some cases.

In October 2009, President Barack Obama signed into law the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, which would protect people who are attacked because of their sexual orientation, gender or disability. The law made changes to a 1968 federal hate crimes law that covered crimes carried out on the basis of religion, race, color or national origin.

Under the law, the Attorney General or a designee must provide written justification before federal prosecutors can bring a case. In a Nov. 8 order, Holder delegated that authority to the Assistant Attorney General for Civil Rights and, in some circumstances, to the Assistant Attorney General for the Criminal Division. The head of the Criminal Division would only be permitted to approve hate crimes prosecutions in cases involving extraterritorial crimes, or ones involving genocide, torture, war crimes, or the recruitment or use of child soldiers  The rule is set to be published in the Federal Register Tuesday.

The relevant passage is below:

The Shepard-Byrd Act expressly provides that no prosecution under section 249 may be undertaken without a written certification by the Attorney General (or a designee) that the State does not have jurisdiction; the State has requested that the federal government assume jurisdiction; the verdict or sentence obtained through State charges left demonstrably unvindicated the federal interest in eradicating bias-motivated violence; or a prosecution by the federal government is in the public interest and necessary to secure substantial justice.  The statute expressly allows the Attorney General to delegate this certification authority to a designee, and this rule accordingly amends 28 CFR Part 0 to delegate the Attorney General’s certification authority under 18 U.S.C. 249 to the Assistant Attorney General for the Civil Rights Division, and, in limited circumstances, to the Assistant Attorney General for the Criminal Division.

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