Commentary

The Emmett Till Antilynching Act doesn’t change the law very much. That’s OK.

April 6, 2022 12:02 am

The U.S. Capitol in Washington, D.C., on Saturday, March 26, 2022 (Photo by Marisa Demarco / Source New Mexico)

By Cullen Seltzer

After more than a century of trying, a federal anti-lynching act was signed into law yesterday.  The good news is that the country, with passage of the Emmett Till Antilynching Act, is at long last on record opposing lynching. There have been thousands of lynching victims.  There are countless thousands more who’ve been terrorized by the prospect of lynching.  

The cultural and social significance of finally taking this stand is heightened when you consider the relatively small legal impact of the Till Act. The new antilynching statute moved the law precious little even if it proved the country’s heart has moved quite a bit. There’s a pretty good argument that the latter’s more important.

The Till Act isn’t a stand-alone law. Like lots of legislation, it amends existing law. In this case, it amends the federal Hate Crimes Act .  

The Till Act doesn’t expressly outlaw, or even define, “lynching,” except to increase the penalty for certain hate crime conspiracies. Hate crime conspiracies that result in death will now be punishable by up to 30 years in prison. That’s a significant penalty, but the Hate Crimes Act already made commission of a hate crime involving death punishable by up to life in prison. The Till Act effectively creates two potential punishments for similar crimes.  Prosecutors will have to choose which provision of the law to charge.

The Till Act does increase the penalty range for hate crimes that involve serious bodily injury. The Hate Crimes Act used to limit most hate crimes penalties to 10 years if they resulted in bodily injury. Under the Till Act, hate crimes involving serious bodily injury can be punished by up to 30 years in prison. Even that increase, though, is not a sweeping change of the Hate Crimes Act. Under the old law, hate crimes that involved kidnapping, aggravated sexual abuse or an attempt to kill also carried a maximum penalty of up to life in prison.  

So, effectively, the Till Act increases the maximum penalty for hate crimes involving serious bodily injury (other than hate crimes involving kidnapping, aggravated sexual assault and attempts to kill) from 10 years to 30 years. The difference between bodily injury and serious bodily injury is significant. Bodily injuries are essentially any injury at all. Serious bodily injuries are those that have serious risks of permanent impairment or severe pain. 

The Till Act also provides that the maximum penalty for conspiracy to violate the Hate Crimes Act, in cases of death, serious bodily injury, kidnapping, aggravated sexual abuse, or attempt to kill, is now 30 years in prison. Even this conspiracy provision, though, is in its most serious form duplicative of existing law. Conspiracy to commit murder was, and still is, already punishable by up to life in prison.

The Till Act’s legal changes are small but they are not inconsequential. When we start counting prison sentences in decades, that’s the law speaking in its clearest terms.

But even if the legal changes are modest, the social and cultural shift is real. Passage of the Till Act shifts the Overton Window just a little bit.  

It took almost three months after Ahmaud Arbery had been killed by White men — in a Georgia case that was compared to a modern-day lynching — before an arrest was made. That was a case where his murder was on video. That was just two years ago.  

It is no coincidence that the outrage Americans felt at the cruelty and injustice done to Arbery was followed shortly after the trials in his case with passage of the Emmett Till Antilynching Act. Till was lynched in Mississippi 66 years ago. He was savagely beaten. He was shot.  His lynchers threw his body in the Tallahatchie River. They had to make the latest memorial to Till bulletproof because previous versions kept getting shot up by racist vandals.

There is an unmistakable through line from Emmett Till to Ahmaud Arbery to last week’s antilynching law.  The Till Act moved the law only a little bit.  But the law isn’t just about how many years a defendant can go to prison for a thing. The law is a reflection of who we are, and who we hope to be, as a people. By that measure, the Emmett Till Antilynching Act is a triumph and a flag.

Cullen Seltzer is an attorney in Richmond. His practice includes white collar criminal defense and commercial litigation.

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