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Lynching Becomes A Federal Crime Under U.S. Law

by | Apr 18, 2022 | Federal Crimes |


On March 29, 2022, President Joe Biden signed the Emmett Till Antilynching Act into law and formally designated lynching as a federal hate crime.  The bill was named for 14 year old black teenager Emmitt Till who was lynched in Mississippi in 1955 while visiting his uncle when a white woman accused him of whistling at her.  He was kidnapped, beaten and killed, then his body was dumped into a river.  Two white men were charged for his murder, but were acquitted by an all-white jury in state court.  Lynching in the United States almost always had a racial component where white mobs would undertake lethal street justice against black persons accused of crimes while law enforcement would look the other way.  In fact, mobs would even remove black individuals from local jails to murder them in the street.

Under the new anti-lynching statute, “[w]however conspires to commit any [of the following] offense[s]… shall, if death or serious bodily injury… results from the offense…, or if the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, be imprisoned for not more than 30 years, fined… , or both.”  18 U.S.C. §249(a)(5)-(6).  This 30-year maximum is more serious than the 10-year maximum for someone acting alone.  The hate crime offenses subject to the anti-lynching statute include the following:

  • “[W]illfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person.” 18 U.S.C. §249(a)(1).
  • “[W]illfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person.” 18 U.S.C. §249(a)(2).

What does it mean to conspire?  Under federal law, “[t]he crux of a conspiracy is an agreement between two or more persons to join together to accomplish something illegal.”  United States v. Flores, 945 F.3d 687, 712 (2d Cir. 2019).  Conspiracy generally requires three specific elements:

  • TWO OR MORE PEOPLE – “[A]t least two persons are required to constitute a conspiracy.” Rogers v. United States, 340 U.S. 367, 375; 71 S.Ct. 438; 95 L.Ed. 344 (1951).  There is no such thing as a one-person conspiracy.  “[T]he elements of the crime of conspiracy are not satisfied unless one conspires with at least one true co-conspirator”.  United States v. Matkimetas, 991 F.2d 379, 383 (7th Cir. 1993).
  • AGREEMENT – At the heart of conspiracy is “an agreement to commit an unlawful act.” Iannelli v. United States, 420 U.S. 770, 777; 95 S.Ct. 1284; 43 L.Ed. 616 (1975).  “Conspiracy is a partnership in criminal purposes.” United States v. Lapier, 796 F.3d 1090, 1096 (9th Cir. 2015).  The agreement does not have to be express or in writing, as long as there was some kind of meeting of the minds to get together and accomplish a criminal act.
  • OVERT ACT – Someone involved in the conspiracy must commit an overt act in furtherance of the conspiracy (e.g. causing the bodily injury to further the hate crime). It is not clear if an overt act is actually a necessary element to establish a hate crime, but as a practical matter it is important to prove for evidentiary and procedural reasons that an overt act occurred for the federal prosecutor to prove guilt beyond a reasonable doubt.

Charging lynching as a conspiracy gives teeth to the anti-lynching statute because each and every person that was part of the “mob” can be charged and convicted these terrible hate crimes.  When a large group of people are involved, it can be difficult to decipher in the chaos who exactly was causing the bodily harm to the victims.  However, every active member of the mob can be punished for lynching as long as someone in the conspiracy committed an overt act of violence.

The statute of limitations for prosecuting lynching where death did not result is 7 years after the date on which the offense was committed.   18 U.S.C. §249(d)(1).  For the purposes of conspiracy, the statute of limitations begins to run with the last overt act in furtherance of the conspiracy.  Toussie v. United States, 397 U.S. 112, 122; 90 S.Ct. 858; 25 L.ED.2d 156 (1970).  If death resulted from this offense, there is no statute of limitations and an indictment or information alleging that lynching resulted in death may be found or instituted at any time without limitation.  18 U.S.C. §249(d)(2). 

Although lynching has occurred few and far between since the 1960s, the passage of this act will help deter this kind of criminal activity from occurring again especially in the increasingly polarized political climate of the United States.  A skilled criminal defense lawyer will be able to answer any questions you have about these new federal laws.

If you have further questions or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.


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