Ten years after two high-profile hate crime murders, federal bill remains stalled in Congress, while state statute isn’t working as intended

Editor’s Note: This year marks the 10th anniversary of the hate-motivated murders of both James Byrd Jr. and Matthew Shepard. In recognition of those anniversaries, Dallas Voice is publishing a five-part Gay History Month series on victims of anti-gay hate crimes in Texas. This first installment in the series takes a look back at two of the most high-profile hate murders in recent history, and at the state of hate crimes laws in Texas and at the federal level. Subsequent installments will each focus on a specific anti-gay hate murder in Texas.

Matthew Shepard, (right); James Byrd Jr., (left)

They were two very different men. One was a 21-year-old white gay man attending college at the University of Wyoming in Laramie. The other was a 49-year-old black man, a father and grandfather, living in his hometown in Southeast Texas.

One was a political science student preparing to step out into the promise of the future. The other was unemployed, living on disability payments and trying to step away from a sometimes-troubled past.

What they had in common, though, was what has forever linked James Byrd Jr. and Matthew Shepard together in the collective conscience of the country: the way they died. Both were the victims of horrifically brutal murders committed out of hate.


James Byrd Jr.
In the wee morning hours of Sunday, June 7, 1998, James Byrd Jr. was walking through the streets of his hometown, Jasper, on his way back to his apartment from a party. Three young white men in a pickup offered him a ride.

But instead of taking him home, the three men took Byrd to a clearing in the woods on the east side of town. There they beat him and kicked him, and then sprayed black paint over his face.

Finally, they chained his feet to the bumper of the truck and drug him down the two-lane country road for about three miles. At one point, as the truck took a curve, Byrd’s body swung out to the side, striking the edge of a concrete drainage culvert. The impact tore his right arm and shoulder, his neck and his head from his body.

His killers left his head and arm there in the ditch. The rest of his mutilated body they left lying in the road, a little further along, in front of a cemetery and a church. People on their way to church later that morning found the body and called police; as officers were responding, they were flagged down by other citizens who had found his head in the drainage ditch.

All three of the young men who murdered Byrd were quickly arrested and convicted. Two of them — John King and Lawrence Russell Brewer, both ex-cons connected with white supremacist prison gangs — were sentenced to death. The third — Shawn Allen Berry, who had also been in prison — was sentenced to life.


Matthew Shepard
Matthew Shepard met his killers at a small bar in Laramie on Oct. 7, 1998. They offered him a ride, but the two men instead beat him, robbed him, pistol-whipped him and tortured him before finally driving out of town to a field alongside a rural highway.

There, the killers tied Shepard’s unconscious body to a fence, and then they drove away, leaving him there to die. Shepard was found, still alive but only barely, by a passing bicyclist who at first thought the shape tied to the fence was just a scarecrow placed there by a farmer to protect his crops.

Shepard died five days later, on Oct. 12, in a Denver hospital, without ever regaining consciousness.

His killers, Aaron James McKinney and Russell Arthur Henderson, were arrested shortly after Shepard died. At trial they both tried to use the “gay panic defense,” saying they attacked and killed Shepard only after he made sexual advances toward them.

But the jury didn’t buy it. Henderson pleaded guilty to kidnapping and murder to avoid the death penalty and received two consecutive life sentences. McKinney was convicted and was also sentenced to two consecutive life sentences, without possibility for parole.


The families’ response
In the aftermath of both murders, the two victims’ families suddenly found themselves caught in the glare of the international media spotlight. While both the Byrd family and the Shepard family already had the sympathy of the nation, both soon also earned the country’s respect and admiration.

In Jasper, even in that heart-wrenching week between Byrd’s death and his funeral, his elderly parents were calling on “healing, not hating.” Family members went on to create the Byrd Foundation for Racial Healing.

And James Byrd Jr.’s son, Ross Byrd, has become involved with a group called Murder Victims’ Families for Reconciliation, an organization advocating against the death penalty. Ross Byrd has, in fact, campaigned against the executions of the men who killed his father.

Shepard’s parents’ Judy and Dennis, also spoke out against having the men who killed their son sentenced to death. Judy Shepard, in particular, has become active in educational efforts through the Matthew Shepard Foundation, an organization dedicated to eradicating hate through educational and diversity programs.

Both families also have been active in efforts to pass comprehensive hate crimes laws. Texas’ hate crimes law, passed in 2002, is known as the James Byrd Jr. Hate Crimes Law. A federal hate crimes statute under consideration in the Senate is called the Matthew Shepard Local Law Enforcement Hate Crimes Prevention Act.


Texas law
Texas’ first hate crimes law was introduced in 1991, shortly after the anti-gay murder of Paul Broussard in Houston. State Rep. Steve Wolens of Dallas introduced the bill, said Dianne Hardy-Garcia, former executive director of the Lesbian Gay Rights Lobby of Texas, an advocacy organization now known as Equality Texas.

“When it came up for a vote, it got one vote. Steve Wolens introduced it and he was the only one who voted for it,” Hardy-Garcia said. “But we did get the state of Texas to pass a bill to start tracking hate crimes, and it was passed at least partly in reaction to Paul Broussard’s death. George Bush Sr. had signed a bill calling for hate crimes to be tracked, and Texas’ law basically agreed to that.”

She added, “After that, the police in Houston started doing stings in the Montrose area to really document hate crimes against gays. They would pose as gay men and they were getting attacked. That started getting law enforcement on our side, saying yes, this is real.”

But even though the hate crimes tracking bill was a step forward, Hardy-Garcia said, it wasn’t nearly enough. It wasn’t until 1993, following the much-publicized murder of yet another Texas gay man, that the Legislature passed a hate crimes act that included penalty enhancements.

Yet still, the law fell short. The definition of the protected groups in the measure was vague to the point of being unusable, and Hardy-Garcia and others continued the fight for a more comprehensive bill.

Then came Byrd’s murder in 1998. And the move for a comprehensive state hate crimes law gained new impetus. Hardy-Garcia traveled from Austin to Jasper to ask Stella and James Byrd Sr. to allow the newly rewritten bill to be named after their son.

“It was so amazing,” Hardy-Garcia recalled. “His mother was just so gracious to us. I explained the history to them, about how it had failed before and how we wanted to present it this time as a whole package, and how we wanted to name it after their son.

“And I told her, ‘I’ve got to tell you the truth. I think they will pass it if it is just about race. The hang up is including sexual orientation.’ I had given her my card, which clearly said Lesbian Gay Rights Lobby,” she said. “For a minute, she didn’t say anything. Then she said, ‘Follow me.’ And she took me and showed me this room full of things people had sent them in condolence, from all around the world. Then she said, ‘I sent Matthew Shepard’s mother a note. We don’t have a problem.’”

And, Hardy-Garcia said, the Byrds never waivered in their commitment that the hate crimes law should include lesbians and gays. But others did.

In 1999, the Texas House — which had voted against the revised law each time it had been presented before — finally passed the measure, now named the James Byrd Jr. Hate Crime Act. Activists were elated, sure that the state Senate, which had always passed the legislation before, would do so again.

But the Senate was controlled by Republicans, most of whom were looking to protect Gov. George Bush as he made his first run for president. In an effort to shield him from the backlash from the right wing if he signed a bill that included protections for LGBT people, and to shield him from backlash from the left-wingers if he vetoed the James Byrd Jr. Hate Crimes Act, the Texas Senate voted the measure down.

“We failed. People fought so hard for that bill, and it failed. And the Byrd family had to sit there and watch it fail,” Hardy-Garcia said. “It was the most painful experience of my life.”

Then came the 2001 legislative session. George Bush was already in the White House and out of the Texas Governor’s Mansion. And hate crimes law proponents were ready to try again, with Rep. Senfronia Thompson of Houston leading the way.

“When it failed in 1999, it was heartbreaking for all of us. And by 2001, we were all so tired. But the Legislature was behind it then; there was so much energy behind it, all LGRL had to do was steer,” said Hardy-Garcia. “We had champions ahead of us [like Sen. Royce West and Rep. Senfronia Thompson].

“In 1993, we had been begging the Legislature to react to Nicholas West’s murder [in Tyler] and pass this bill. And now, they were packing the room to fight for it. As it passed, my whole staff was weeping.”

Yet even now — 10 years after James Byrd Jr.’s murder and seven years after the law bearing his name was enacted — problems still persist.

Randall Terrell with Equality Texas noted that the law uses the outdated term “sexual preference” instead of sexual orientation, and it does not include protections for transgender people.

And it is rarely used, he added. Although the criminal portion of the seven-part bill allows for penalties to be enhanced by one level, only nine of the thousands of incidents reported as hate crimes since the Byrd act was passed have been prosecuted as hate crimes.

Prosecutors say asking for the hate crimes finding in a trial puts added burden on them, and that they would rather go for a sure-fire conviction than risk asking for the hate crimes finding.

Terrell also said that other parts to the legislation “don’t get any attention at all.”

He explained, “The attorney general is supposed to cooperate in training for high school kids to prevent hate crimes. There is a video for that purpose, but it’s never used. The attorney general is also supposed to train prosecutors and to offer monetary assistance and expertise in prosecuting hate crimes. That never happens.”

In 2007, Equality Texas pushed a measure, sponsored by State Rep. Marc Veasey of Fort Worth, that called for a study to determine where problems are in enforcing the state’s hate crimes statute. But the measure did not pass.

Terrell said his organization would again call for the bill to be passed next year when the Legislature reconvenes.

“We have talked with lots of people, and we have seen some informal studies. So we already really know what would come out of a study like this,” Terrell said.

“But we need something official. This, essentially, is a legislative fix, and we need to get the Legisature on board with the fact that there may be a problem, and then get them on board with fixing it,” he said.


Federal law
At the federal law, the U.S. already has two hate crimes laws on the books. One deals only with crimes committed on federal lands. It includes protections based on sexual orientation, but not gender identity.

The other law includes only protections based on race, religion, national origin and color, and deals only in cases where the victim is engaged in a federally protected activity, such as voting, going to school or interstate commerce, according to David Stacy, senior public policy advocate with the Human Rights Campaign.

It is that second one, Stacy said, that hate crimes law advocates hope to improve on through legislation now before Congress.

There are actually two versions of the law in Congress, Stacy explained: The Local Law Enforcement Hate Crimes Prevention Act in the House, and the Matthew Shepard Local Law Enforcement Hate Crimes Prevention Act in the Senate.

The bills would both expand the categories in the current law to include sexual orientation, gender identity, gender and disability, and both would eliminate the clause restricting federal involvement to those crimes in which the victim was engaged in a federally protected activity. Both would also provide grant money to local law enforcement officials to help prosecute hate crimes and to work to prevent them.

Both passed last year, but again, George Bush stood in the way of the measure becoming law.

In May 2007, the U.S. House passed the freestanding measure — which had a bipartisan coterie of eight lead sponsors, including openly gay Congressmembers Barney Frank and Tammy Baldwin — on a vote of 237 to 180. But when President Bush threatened to veto the hate crimes bill, the Senate decided to take another route.

Lead sponsors for the Matthew Shepard act in the Senate were Democrat Ted Kennedy of Massachusetts and Republican Gordon Smith from Oregon. Faced with the threat of a presidential veto, Kennedy and Smith decided to attach the measure as an amendment to the Department of Defense reauthorization bill, legislation they thought would be almost certainly veto-proof.

The DOD bill, with the hate crimes amendment, passed on a cloture vote in the Senate by a 60-to-39 margin. But the president refused to back down, vowing to veto the vital DOD reauthorization bill unless the hate crimes amendment was removed.

“The White House was very aggressive in saying they would still veto the defense authorization bill, which includes things like pay raises for the military and is something that had never been vetoed before,” Stacy said. “Republicans in the House then said they would oppose the defense bill with the hate crimes provision attached. And there were some liberal Democrats in the House that were opposed to some of the provisions related to the war in Iraq.

“It was getting very close to the end of the session, and if the defense reauthorization had been vetoed, the military pay raise wouldn’t have gone into effect on Jan. 1. They decided they just didn’t have the votes to get it through, so they removed it,” he said.

But, Stacy said, the future does look brighter for the Matthew Shepard Local Law Enforcement Hate Crimes Prevention Act, and advocates are at least guardedly optimistic.

“We’re waiting till next year,” Stacy said. “The good thing is, last year it passed in both houses in virtually identical form, both including gender identity. It had 60 votes in the Senate, and that margin should go up after the elections. There was a solid majority in the House that is likely to go up, too.

“All we need now is a president who will not veto the bill,” he added. “We expect that if Obama were president, he would sign it. He was a co-sponsor of the bill in the Senate.

“But we’re not sure what McCain would do,” Stacy continued. “He didn’t vote on it last year in the Senate, but he has voted against it in the past. It would probably be a greater challenge to move it forward if he is president.”

But for now, progress on improving both the federal and the Texas hate crimes laws is stalled, waiting for politics to either clear the way ahead, or keep them at a standstill yet again.





This article appeared in the Dallas Voice print edition October 3, 2008.