<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:99784.wais]
REAUTHORIZATION OF THE CIVIL RIGHTS DIVISION OF THE UNITED STATES
DEPARTMENT OF JUSTICE
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
MARCH 10, 2005
__________
Serial No. 109-45
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona ADAM SMITH, Washington
MIKE PENCE, Indiana CHRIS VAN HOLLEN, Maryland
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
TRENT FRANKS, Arizona JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana MELVIN L. WATT, North Carolina
MARK GREEN, Wisconsin CHRIS VAN HOLLEN, Maryland
STEVE KING, Iowa
TOM FEENEY, Florida
Paul B. Taylor, Chief Counsel
E. Stewart Jeffries, Counsel
Hilary Funk, Counsel
Mindy Barry, Full Committee Counsel
David Lachmann, Minority Professional Staff Member
C O N T E N T S
----------
MARCH 10, 2005
OPENING STATEMENT
Page
The Honorable Steve Chabot, a Representative in Congress from the
State of Ohio, and Chairman, Subcommittee on the Constitution.. 1
The Honorable Robert C. Scott, a Representative in Congress from
the State of Virginia, and Member, Subcommittee on the
Constitution................................................... 2
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Member, Subcommittee on the
Constitution................................................... 3
WITNESSES
Mr. R. Alexander Acosta, Assistant Attorney General, Civil Rights
Division, U.S. Department of Justice
Oral Testimony................................................. 4
Prepared Statement............................................. 6
APPENDIX
Material Submitted for the Hearing Record
Congressional Black Caucus Agenda for the 109th Congress,
submitted by the Honorable Melvin Watt, a Representative in
Congress from the State of North Carolina, and Member,
Subcommittee on the Constitution............................... 46
Letter from Members of the Committee on the Judiciary, dated June
23, 2004, to the Honorable John Ashcroft, Attorney General of
the United States, U.S. Department of Justice, and response,
dated August 13, 2004.......................................... 55
Response to post-hearing questions from R. Alexander Acosta,
Assistant Attorney General, Civil Rights Division, U.S.
Department of Justice.......................................... 59
REAUTHORIZATION OF THE CIVIL RIGHTS DIVISION OF THE UNITED STATES
DEPARTMENT OF JUSTICE
----------
THURSDAY, MARCH 10, 2005
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:05 a.m., in
Room 2141, Rayburn House Office Building, the Honorable Steve
Chabot (Chair of the Subcommittee) presiding.
Mr. Chabot. The Committee will come to order.
Thank you very much for coming this morning. We'd like to
welcome everyone to this hearing. This is the Subcommittee on
the Constitution's annual oversight hearing on the activities
of the United States Department of Justice's Civil Rights
Division for the purposes of reauthorization.
I'd like to thank our witness, the Honorable R. Alexander
Acosta, Assistant Attorney General for Civil Rights at the
Department of Justice, for appearing this morning. Assistant
Attorney General Acosta has played a pivotal role in developing
policies and initiatives to advance civil rights in the United
States. We look forward to hearing from him on the Division's
priorities for the upcoming year, its accomplishments since the
last oversight hearing, and whether we can anticipate any
changes to the Division's priorities and policies under the
Justice Department's new leader, Attorney General Gonzalez.
Again, thank you, Assistant Attorney General Acosta, for making
yourself available to the Subcommittee here this morning.
The Civil Rights Division has played an instrumental role
in protecting civil rights in this country. Established in
1957, the Division is charged with enforcing Federal statutes
prohibiting discrimination on the basis of race, sex, handicap,
religion, and national origin. The breadth of issues falling
under the Division's jurisdiction demonstrate its importance.
The Division enforces statutes such as the Civil Rights Act
of 1957, 1960, 1964, and 1968, the Voting Rights Act of 1965,
as amended through 1992, the Equal Credit Opportunity Act, the
Americans with Disabilities Act, ADA, the National Voter
Registration Act, the Uniformed and Overseas Citizens Absentee
Voting Act, the Trafficking in Persons Program, Civil Rights of
Institutionalized Persons Act, or CRIPA, and other civil rights
provisions and Federal laws that prohibit discrimination in
education, employment, credit, housing, public accommodations
and facilities, voting, and certain federally funded and
conducted programs. The Division also prosecutes several
criminal civil rights statutes that were enacted to preserve
personal liberties and safety.
The Division has taken on additional significance in recent
years. Since September 11, the Division has devoted additional
resources to protecting Americans who are or are perceived to
be of Arab, Muslim, Sikh, and South Asian descent. Since 2001,
the Division has successfully prosecuted bias crimes and
incidents of discrimination. In that same year, the Division
opened its Trafficking in Persons Program.
Over the last 4 years, the Division has opened 203
investigations of human trafficking and has charged, together
with the U.S. Attorney's Office, 59 defendants with 29 cases.
In 2002, the Division initiated its Religious Discrimination
Initiative, ensuring that religious freedoms of all Americans
are enforced. And in 2004, the Division zealously monitored,
enforced, and resolved voting issues, ensuring that every
American's right to vote was protected.
I would like to add a personal note to the ongoing issue of
voting. I, and I know everyone on the Committee, takes very
seriously the issue of voting rights and election reform, but
as a Congressman from Ohio and a resident of the City of
Cincinnati who went to dozens of urban and suburban polling
locations throughout the First District of Ohio on election day
myself, I want to make clear that the election in Ohio was
conducted professionally, fairly, and freely.
I know that my colleagues will have questions for Assistant
Attorney General Acosta and we can expect that a wide variety
of issues will be addressed this morning. So I again thank you,
Mr. Acosta, for being here this morning, and before I defer to
the gentleman from Virginia for the purpose of making an
opening statement, I just might note that we're being called to
the floor for votes, but I think we have time for an opening
statement, and then when we come back, we'll get to your
testimony, Mr. Acosta.
The gentleman from Virginia, Mr. Scott, is recognized for 5
minutes.
Mr. Scott. Thank you, Mr. Chairman. I'll be brief.
I want to welcome Mr. Acosta back to us. The work of the
Civil Rights Division is one of the most important functions of
Government. Without rigorous enforcement of civil rights laws,
the promise of our democracy would ring hollow.
We have come far as a nation, but there is still much that
needs to be done. Too many people are excluded from the
mainstream of American life. Many are denied the right to vote
or are subjected to schemes forcing them to wait 10 hours to
cast those votes. They're denied the right to own a home, walk
down the street, or to hold a job, or to enter into a public
building. Every denial of a basic right is an injury to a human
being, but also an injury to our nation.
My colleagues and I have many concerns about the priorities
of the Division and the way its approach to protection of
fundamental rights. I'm especially concerned about the extent
to which large numbers of Americans were again denied the right
to a free election, a right our soldiers are dying half a world
away to secure.
I look forward to Mr. Acosta's testimony and I join you,
Mr. Chairman, in welcoming him here today.
I yield back.
Mr. Chabot. Thank you very much, Mr. Scott.
Mr. Franks, would you like to make an opening statement
this morning?
Mr. Franks. No.
Mr. Chabot. Okay. Mr. Conyers, would you like to make an
opening statement?
Mr. Conyers. I'd like to make an observation, Mr. Chairman,
and I thank you so much.
Mr. Chabot. Yes, you are recognized.
Mr. Conyers. First of all, we join in welcoming our new
leader in the voter rights area, civil rights area. There are a
lot of things we've got to talk about and the Committee hearing
only opens the door. Ohio is one of them. But also the
guideline process utilized in section 5 in Georgia v. Ashcroft,
the whole question of the lack of activity around employment
issues in your shop.
We've been concerned about, but particularly in the civil
rights community, about the flagrant disregard for civil rights
enforcement evidenced by the Employment Section of the Civil
Rights Division and its apparent hostility to disparate impact
cases.
And so I'm looking forward to this beginning discussion
with us. I know you've got your staff here, and I think we're
going to be able to make some headway in some areas that I
think have been sorely ignored in the Civil Rights Division of
the Department of Justice.
I thank you, Mr. Chairman, for allowing me to bring this
opening remark.
Mr. Chabot. Thank you very much.
Are there no other opening statements to be made? If not,
what we'll do at this time is go into recess here briefly, go
over to the floor and vote, and I'd ask the Members if they
could come back, although I know we have a new Member being
sworn in and there could be speeches going on and things over
there. I intend to come back, and if the Members would like to
do that, we'd appreciate it and we could get started and have
Mr. Acosta's testimony.
Mr. Scott. Miss the speeches? [Laughter.]
Mr. Chabot. Miss the speeches. I'm sure that would be very
painful, but---- [Laughter.]
Okay. So we're in recess here and we'll come back shortly
for your testimony, Mr. Acosta. We're in recess.
[Recess.]
Mr. Chabot. The Committee will come back to order. I want
to thank all the Members for being so prompt in getting back
here. We appreciate that very much so we can move on with the
hearing in a timely manner.
I'm very pleased to welcome here again this morning R.
Alexander Acosta. He was selected by President Bush to serve as
Assistant Attorney General for the Civil Rights Division of the
United States Department of Justice on August 22, 2003. Prior
to his service as Assistant Attorney General, Mr. Acosta served
as a member of the National Labor Relations Board and has also
served as Principal Deputy Assistant Attorney General in the
Civil Rights Division.
After graduation from Harvard Law School, he served as a
law clerk on the U.S. Court of Appeals for the Third Circuit
and then worked at the Washington office of the Kirkland and
Ellis law firm, where he specialized in employment and labor
issues. Mr. Acosta is the first Hispanic to serve as an
Assistant Attorney General at the Department of Justice. He is
the 2003 recipient of the Mexican American Legal Defense and
Education Fund's Excellence in Government Service Award and the
D.C. Hispanic Bar Association's Hugh A. Johnson, Jr., Memorial
Award. He also has taught several classes on unemployment law,
disability-based discrimination law, and civil rights law at
the George Mason School of Law.
We welcome you here this morning again, Mr. Acosta. It's
the practice of this Committee, as you know, to swear in all
witnesses appearing before it, so if you would not mind please
standing and raising your right hand.
Do you swear that in the testimony that you are about to
give, that you will tell the truth, the whole truth, and
nothing but the truth, so help you, God?
Mr. Acosta. I do.
Mr. Chabot. Thank you very much, and you can be seated.
Without objection, all Members will have five legislative
days within which to submit additional materials for the
record.
We generally allow 5 minutes. However, we'll allow you such
time as you might consume since you're the sole witness at this
hearing this morning.
TESTIMONY OF R. ALEXANDER ACOSTA, ASSISTANT ATTORNEY GENERAL,
CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE
Mr. Acosta. Thank you, Mr. Chairman. Mr. Chairman, Ranking
Member, Members of the Subcommittee, it's a pleasure to appear
before you once again to represent President Bush, Attorney
General Gonzales, and the men and women of the Civil Rights
Division.
I have been on the job somewhat over a year now and I'm
still honored and I'm humbled by the trust that the President
and the Attorneys General whom I have served have placed in me
by allowing me to serve in this position.
I am pleased to report that 2004 was an outstanding year
for the Division. During 2004, we achieved record levels of
enforcement across the board. My written statement details that
work. I would like to summarize it and ask that my statement be
placed in the record.
Mr. Chabot. Without objection.
Mr. Acosta. Thank you, Mr. Chairman.
In brief, fiscal 2004 was a record-setting year. We
achieved our highest success rate ever in courts of appeals. We
opened an investigation of the 1955 murder of Emmett Till. We
prosecuted 96 new criminal civil rights cases, the most ever
filed in a single year. In another record, we prosecuted 59 new
human trafficking defendants, a dramatic increase from the five
in the year 2000. We prosecuted 46 color of law cases, just
three fewer than the all-time high, achieving a 77 percent
conviction rate in color of law matters and 8 percent increase
in the conviction rate.
We mounted the Division's largest-ever election monitoring
program, deploying 1,996 observers and monitors to watch 163
elections in 29 States. We filed and successfully resolved as
many language minority ballot access cases as had been filed in
the prior 8 years combined. We filed the Division's first
lawsuits to enforce HAVA as well as litigating under UOCAVA and
the National Voting--the NVRA. We conducted extensive outreach
efforts with State election officials to ensure compliance with
Federal election laws and the civil rights groups to ensure
that their concerns were heard during the election.
With respect to housing discrimination, we saw an 85
percent increase in pattern or practice lawsuits. In another
record in the housing discrimination area, we won the largest
jury verdict ever obtained by the Division in the Fair Housing
Act case. With respect to redlining, we achieved another
record, bringing for the first time ever multiple redlining
cases in a single year, including, in another first, the first
redlining case to address small business loans.
We brought and successfully resolved a lawsuit challenging
allegations of discrimination by Cracker Barrel Old Country
Stores. Mr. Conyers referenced earlier employment
discrimination cases. Last year, we filed more pattern or
practice employment discrimination cases than any year since
the mid-1990's, including disparate impact cases, which we do
enforce.
We concluded the 100th Project Civic Access agreement,
promoting accessibility in municipal services and facilities.
We filed and resolved a landmark design and construction case
under the Fair Housing Act covering 4,000 housing opportunities
affecting 34 apartment complexes over six States. We settled
the Division's first case ever enforcing HUD's Rehabilitation
Act regulations against a public housing authority, providing
more than 2,000 new housing opportunities for individuals with
disabilities.
Our ada.gov website received the most hits ever, 30
million. We served 100,000 callers on our ADA information line,
including 48,000 who were personally assisted by specialists.
We brought the first title IV education case since 1990. We
successfully resolved, in yet another record, six pattern or
practice investigations of police departments, more than in any
prior year. We authorized 14 new investigations under the Civil
Rights of Institutionalized Persons Act. And we entered into 15
agreements under that act, the most agreements ever reached in
a single year. We filed the Division's first contested lawsuit
to protect the rights of juveniles in State institutions.
In short, Mr. Chairman, Members, fiscal 2004 was a record-
setting year and I am grateful to the men and to the women of
the Civil Rights Division whose work and whose accomplishment
made these records and these cases possible.
I would like to add, and I would like to close with one
added observation, if I could. These achievements, in my
opinion, deserve praise and kudos, but they also serve to
remind us of a larger and an unpraiseworthy truth, a truth
which I think needs to be acknowledged. Allow me to explain.
I recently had the privilege of attending a preview of a
History Channel documentary entitled ``Voices of Civil Rights''
at the Smithsonian Institution. The program was very well done.
It documented the voices of typical Americans, average
Americans who experienced segregation firsthand. The stories
were moving. They were challenging. They were thought
provoking.
I was struck in particular by one story. It was a story of
a nurse, an African-American nurse who remembered the first day
that her hospital was desegregated. She remembered going down
to the formerly white floor to treat a white patient for the
first time, a woman who had surgery that morning. As she went
to treat the patient, her husband stepped in the way and said,
``Don't you lay a finger on my wife.'' But the patient had just
had surgery and needed to be treated, and so the nurse tried to
treat her, at which point the husband said, now at this point
yelling, ``Get your blank fingers off my wife,'' using the
``N'' word. He then picked her up, carried her out of the room,
and threw her down the hallway. He then unplugged his wife from
the medical equipment, put her in a wheelchair, and took her
out of the hospital.
Well, about a week later, the woman in this documentary
recounted, she saw the man again. She was on duty at the
hospital and he came up to her. She feared another
confrontation, but instead, the man looked defeated and he
said, ``Ma'am, I shouldn't have laid hands on you when I did,
because if I'd not done so--I had no right to do so, because if
I had not done so, I would still have a wife and a mother to
care for me and for my children.''
It's difficult today to imagine such blindly self-
destructive behavior, and films like this serve to remind us of
history. But it is also naive to believe that in 40 years, the
impulses that drove that man have disappeared entirely from our
society and from our nation. While discrimination today may not
take all the same exact stark forms that it once did, and while
the tools to fight it must and do adapt, it nevertheless
persists, and that is something that we should acknowledge.
Our efforts this past year stand testament to that fact and
to the efforts of all those committed to extending
opportunities to Americans of all races.
I thank you, Mr. Chairman, Ranking Member, Members of the
Committee, and I look forward to your questions.
Mr. Chabot. Thank you very much, Mr. Acosta.
[The prepared statement of Mr. Acosta follows:]
Prepared Statement of R. Alexander Acosta
Thank you Mr. Chairman; Ranking Member Nadler; Members of the
Subcommittee:
It is an honor once again to appear before this Subcommittee, and
to represent President Bush, Attorney General Gonzales and the hard
working men and women of the Civil Rights Division in reporting to you
on our critical work advancing the civil rights of all Americans.
I am extremely pleased to report that this past year was an
outstanding year for the Division. Since last I appeared before this
Committee, the Civil Rights Division has reached record levels of civil
rights protection across the board. In fact, during fiscal year 2004,
the Civil Rights Division:
<bullet> Achieved its highest success rate ever in the courts
of appeal;
<bullet> Prosecuted 96 new criminal civil rights cases, in
conjunction with the United States Attorneys' Offices, the most
ever filed in a single year;
<bullet> Assembled a task force to investigate the 1955 murder
of Emmett Till;
<bullet> Prosecuted, in conjunction with the U.S. Attorneys'
Offices, 59 new defendants for human trafficking violations, a
dramatic increase from the 5 prosecuted in 2000;
<bullet> Mounted the largest election monitoring program in
the Division's history; dispatching over 1,900 federal
personnel to monitor elections around the country;
<bullet> Filed and successfully resolved as many language
minority ballot access cases as the Division had filed in the
previous 8 years combined;
<bullet> Implemented vigorous enforcement of the Help America
Vote Act;
<bullet> Increased by 85% the number of lawsuits challenging a
pattern or practice of discrimination in housing;
<bullet> Won the largest jury verdict ever obtained by the
Division in a Fair Housing Act case;
<bullet> Brought, for the first time ever, multiple fair
lending ``redlining'' cases in the same year, including--in
another first--claims that a bank failed to make business loans
on a non-discriminatory basis;
<bullet> Brought and successfully resolved a lawsuit
challenging allegations of discrimination in public
accommodations by Cracker Barrel Old Country Stores;
<bullet> Filed more cases challenging a pattern or practice of
employment discrimination that in any year since the mid-1990s;
<bullet> Concluded the 100th agreement under Project Civic
Access, promoting accessibility in municipal services and
facilities;
<bullet> Filed and resolved a landmark design and construction
suit under the FHA and ADA that covers over 4,000 ground units
and affects 34 apartment complexes in 6 states;
<bullet> Settled the Division's first case against a public
housing authority to enforce HUD's Rehabilitation Act
regulations, providing more than 2,000 new housing
opportunities for individuals with disabilities;
<bullet> Received more than 30 million hits--the most ever--on
its ADA homepage, which ranks among the most used federal
compliance assistance websites;
<bullet> Served more than 100,000 callers on its ADA
Information Hotline, including 48,000 who were personally
assisted by specialists;
<bullet> Brought the first Title IV education case since 1990;
<bullet> Authorized 14 new Civil Rights of Institutionalized
Persons Act investigations and entered into 15 CRIPA
agreements, the most agreements reached ever in a single year
in; and
<bullet> Filed the Division's first contested lawsuit to
protect the rights of juveniles in state institutions since the
early 1990s.
These are only highlights of our accomplishments. It is my pleasure
to review these accomplishments in detail.
federal criminal law
During FY 2004, the Division remained ardent and vigilant in
enforcing federal criminal civil rights protections. Our determined
efforts produced extraordinary results. We filed 96 new criminal civil
rights prosecutions in conjunction with US Attorney's Office in FY
2004--more than in any year in the Division's history. Our efforts span
the full breadth of the Division's jurisdiction. In color of law
matters, we filed 46 cases--just 3 fewer than the all-time high. With
respect to human trafficking offenses, the Division, in conjunction
with the U.S. Attorneys' Offices, filed 29 cases in FY 2004 charging 59
defendants. This effort compares dramatically with the 5 defendants
charged in 3 cases during FY 2000. In addition, we prosecuted 20
instances of bias crime, including 9 instances of cross burning, and
several cases challenging post-9/11 backlash bias crimes.
Color of Law Prosecutions
All of us appreciate and respect the difficult task performed daily
with professionalism by law enforcement officers around the county to
keep us free from harm. It is my firm conviction that the vast majority
of police officers and other state agents are committed to providing
the best, constitutional service possible. In light of the inherent
dangers in their job, particularly in light of their new role on the
front line in the war on terror, they well deserve our deep gratitude.
At the same time, it is of the utmost importance that officers obey the
very laws that they enforce. The public must have the trust that no
one, including a law enforcement officer, is above the law. Thus,
failing to hold officers to account for their conduct, and allowing
that trust to be undermined, would make the job substantially more
difficult.
As I noted, this past year we have had substantial success
prosecuting color-of-law violations. While these cases are among the
most difficult criminal prosecutions, our conviction rate in law
enforcement cases increased from 69% in 2003 to 77% in fiscal year FY
2004.
I want to highlight three examples for the Committee:
In U.S. v. Carson, six police officers ganged-up to attack the
victim of a traffic dispute with an off-duty police officer. They
pulled over the victim as he was driving home from work, pulled him
from his car, and beat him severely. They then wrote false police
reports to cover up their assault; indeed, some of the officers
fabricated evidence to trump up false criminal charges against the
victim. One officer pleaded guilty; four of the remaining five officers
were convicted at trial.
In United States v. Hampton, a police officer with the Carlisle,
Arkansas Police Department used his law enforcement authority to coerce
young men in his custody to perform homosexual acts. On numerous
occasions, the defendant arrested individuals for minor infractions and
threatened them with incarceration if they refused his sexual demands.
We secured guilty pleas to two felony civil rights counts and obtained
a sentence of 212 months in prison.
In United States v. Simmons, the defendant used his status as a
police officer to sexually assault a helpless teenage victim. After
pulling over the victim and her boyfriend for a traffic offense, the
defendant placed the victim in his patrol car and offered to drive her
home. Instead he took her to a secluded area where he repeatedly raped
her. Our involvement and investigation followed an unsuccessful state
prosecution. Just earlier this month, a federal jury convicted the
defendant, specifically finding that he had committed aggravated sexual
abuse and caused bodily injury to the victim.
While the traditional model of color-of-law enforcement relates to
law enforcement officers and prison guards, it merits mention that our
authority applies to anyone acting under color of law. This can include
other state agents such as orderlies in nursing homes and mental
facilities, others involved in the criminal justice process, and any
other state employee or agent who willfully deprives an individual of
his federally protected rights on account of color, religion, sex,
handicap, familial status or national origin.
For example, in United States v. Anderson, we convicted an
internationally renowned cadaver dog handler for repeatedly planting
false evidence at law enforcement search scenes. Our investigation,
which included local, state and federal law enforcement agencies from
Florida to California and from Wisconsin to Louisiana, revealed that
the defendant had planted human bones, a flesh-covered toe, and her own
blood at various crime scenes she had been asked to search. The FBI
laboratory was instrumental in developing inculpatory forensic
evidence. The defendant pleaded guilty to federal charges of falsifying
facts and obstruction of justice, and was sentenced to 21 months
incarceration.
As you know, the Division has jurisdiction to investigate the
conditions of confinement at state institutions including nursing
homes, juvenile facilities, and mental health institutions. Our
investigations of such facilities frequently turn up shocking accounts
of abuse, including conduct that is rightly considered criminal. For
example, in United States v. Brewer and Bratcher, two developmental
technicians pleaded guilty to conspiring to physically abuse a
profoundly mentally impaired individual who lived at the facility. The
abuse culminated when the victim was whipped with an electrical cord
nearly 30 times, leaving numerous welts and abrasions on his back, side
and buttocks. Examples such as this, which involve the deliberate
infliction of cruelty upon those least able to defend themselves,
rightly shock the conscience. Although in the past the Criminal Section
has considered referrals from the Special Litigation Section, I believe
that we can do even better. As such, I implemented a referral procedure
last year to ensure that instances of potential criminal institutional
abuse are given a high priority by the Criminal Section.
Bias Motivated Crimes
Our bias-motivated crimes prosecutions concern some of the most
disturbing, and to be blunt, disgusting cases. For example, in United
States v. Derifield, we convicted two avowed white supremacists of a
racially motivated attack on four teenagers, including a 14-year-old
girl, who was held at knifepoint by one of the defendants. In United
States v. Garner, et al., six defendants were sentenced to imprisonment
for 12 to 46 months for conspiring to burn a five-foot tall cross in
the driveway of a home occupied by a white woman in Georgia whose
daughter was dating an African-American man. And in April of last year
we secured civil rights convictions against five white supremacists in
United States v. Heldenband. The defendants, angered that the victim
was with a white woman, stabbed a black man in a Springfield, Missouri
restaurant.
Equally disturbing are arsons directed against houses of worship.
Last year, a Member of this Subcommittee asked us to consider this area
with particular care--and we have embraced the challenge. We
strengthened our relationship with the Bureau of Alcohol, Tobacco and
Firearms, which investigates these crimes. We have met, and continue to
meet, on several occasions with the Bureau to ensure that neither they,
nor we, have reason to believe that a new trend has developed. During
2004 we prosecuted 3 church burning cases, and thus far during FY 2005
we have filed 5 such prosecutions. However, we have found no national
pattern or trend that suggests an increase in the rate of this terrible
offense.
Of particular importance are our successes in addressing incidents
of violence and threats against Arabs, South Asians and Muslims, so
called ``backlash'' crimes following from the September 11th terrorist
attacks. Since 2001, the Department has investigated more than 630
``backlash'' incidents, which have resulted in nearly 150 state and
local prosecutions (many with federal assistance), and the federal
prosecution of 27 defendants in 22 cases.
For example, this year, we pursued two separate bias-motivated
crimes at the Islamic Center of El Paso, Texas. In United States v.
Bjarnason, the Defendant was convicted of e-mailing a threat to burn
down the mosque if American hostages held in Iraq were not released
within 72 hours. Using a provision of the USA PATRIOT Act, federal
agents were able to identify Bjarnason as the sender before the 72-hour
period had expired. Bjarnason pleaded guilty to federal charges and was
sentenced to 18 months imprisonment. In the recent case of United
States v. Nunez-Flores, we charged the Defendant with throwing a
``Molotov Cocktail'' at the same Islamic Center of El Paso Mosque.
Another example is the case of United States v. Middleman. There,
the defendant pleaded guilty to sending a threatening interstate e-mail
to Dr. James Zogby, President of the Arab-American Institute. The
defendant is currently awaiting sentencing. As should be obvious, we
take these cases very seriously. In fact, this is the second case of a
threat against Dr. Zogby. In 2002, in United States v. Rolnik, the
defendant pleaded guilty to leaving a threatening telephone message on
Dr. Zogby's voice-mail. Similarly, in United States v. Ehrgott, we
prosecuted a defendant who pleaded guilty to sending a threatening
interstate e-mail communication to the Washington, D.C. office of the
Council on American-Islamic Relations.
Arab, Muslim and Sikh Americans are just that--they are Americans.
Some died saving lives in the World Trade Center. Salman Hamdani, for
example, was among the heros of September 11th. He was a New York City
police cadet and ambulance driver. His remains were found near the
North Tower of the World Trade Center with his medical bag beside him.
He died doing everything he could to rescue victims of that attack. We
must remember, as President Bush has said, that ``those who feel like
they can intimidate our fellow citizens to take out their anger don't
represent the best of America, they represent the worst of humankind,
and they should be ashamed of that kind of behavior.''
Trafficking in Persons
We have been equally successful continuing our efforts to fight
human trafficking. I reported to the Committee last year on the
Division's outstanding efforts on this front. This year has seen no
let-up.
As of March 1, 2005, the Division had open 203 trafficking
investigations, a substantial increase over the 66 open in January
2001. Of these, 130 were opened during fiscal year 2004, and an
additional 52 were opened during fiscal year 2005. The Division, in
conjunction with the United States Attorneys' Offices, charged a record
59 defendants in 29 cases with trafficking offenses during fiscal year
2004, as compared to 5 defendants in 3 cases in fiscal year 2000.
One of our most recent cases is United States v. Garcia, where a
farm labor contractor and several members of her family were charged
with conspiring to recruit young undocumented Mexicans from the Arizona
border and transporting them to New York with false promises of good
wages. They transported their victims to Albion, New York, where they
were forced to work in the fields for little or no pay. On December 2,
2004, defendant Maria Garcia pleaded guilty to forced labor charges;
her son, Elias Botello, pleaded guilty to conspiring to commit forced
labor; and her husband and a second son entered guilty pleas to
harboring aliens.
The majority of our trafficking cases, however, involve some form
of sexual abuse. For example, in United States v. Carreto, seven
defendants are currently facing charges in a sex trafficking
conspiracy. The defendants allegedly organized and operated a
trafficking ring that smuggled nine Mexican women into the United
States illegally and forced them into prostitution in Queens and
Brooklyn, New York. One defendant has already pleaded guilty.
Last year, in United States v. Rojas we obtained trafficking
convictions in Atlanta, Georgia against the Rojas brothers. These
traffickers smuggled women from Mexico into the United States and then
forced them into commercial sexual activity.
In United States v. Arlan and Linda Kaufman, we charged a husband
and wife in the State of Kansas who, under the guise of operating a
residential treatment center for mentally impaired adults, held the
residents in servitude, forcing them to engage in nudity and sexually
explicit acts for the defendants' entertainment and profit. Trial in
that case is pending.
A judge powerfully captured the truly horrific nature of sex
trafficking during a defendant's sentencing hearing in one of our
cases. Shaking his head in disgust at the defendant, the judge stated:
``he's the worst that I've ever seen in this court. It was worse than
bad. It was almost like raping children. This gentleman took advantage
. . . knew they were vulnerable, knew they couldn't cry out. Publicly
humiliating them. Stripping them in public and throwing them in a
canal.''
The fight against human trafficking is supported at the highest
levels of the Administration. This past July the Department hosted the
first national conference on human trafficking. Both President Bush and
the Attorney General attended and addressed the participants.
At the conference, President Bush stated, ``Human trafficking is
one of the worst offenses against human dignity. Our nation is
determined to fight that crime abroad and at home.'' The President
provided encouragement to the conference attendees:
You've got a tough job, but it's a necessary job. You're
hunting down the traffickers, you're serving justice by putting
them behind bars, you're liberating captives, and you're
helping them recover from years of abuse and trauma. The lives
of tens of thousands of innocent women and children depend on
your compassion, they depend upon your determination, and they
depend upon your daily efforts to rescue them from misery and
servitude. You are in a fight against evil, and the American
people are grateful for your dedication and service.
The Division is proud of its success prosecuting human trafficking
cases, but we recognize that this is only a start. Much of our focus in
the area of human trafficking since the July 2004 conference has been
shifting from the reactive prosecution of human traffickers to
proactively attacking the problem and seeking out human trafficking
where it hides. Success in doing so stands on the twin pillars of (1)
successful state-federal taskforce partnerships, and (2) a victim-
centered approach to enforcement.
As to the first, during 2004 the Division helped to establish 19
human trafficking task forces in major urban areas around the country
including Phoenix, Philadelphia, Atlanta, Tampa, Newark, Houston,
Northern Virginia, New York, Los Angeles, St. Louis, Miami, Orlando,
the State of Connecticut, Albuquerque, Las Vegas, San Francisco,
District of Columbia, San Antonio, and El Paso. Additional task forces
will be created this year in Nassau County, New York and elsewhere.
These task forces bring together Federal, state, local, and non-
governmental actors to combat trafficking and provide comprehensive
assistance to victims. In many instances, the investigative team in
these cases is led by local law enforcement. Local law enforcement,
more than we, knows where victims of these unconscionable crimes are
being hidden. Local law enforcement, in turn, works closely with
prosecutors from the Civil Rights Division and U.S. Attorney's Office.
In addition, non-governmental organizations, which are often grantees
of the Department of Health and Human Services and the Justice
Department's Office for Victims of Crime, are immediately contacted in
order to ensure that victims receive prompt restorative care.
Additionally, public service announcements have been issued in
Spanish, Russian, Polish, Chinese, and Korean to inform victims of
their rights. We are extremely grateful to our colleagues in this fight
at all levels. In addition, the Division has also conducted a series of
training programs for local law enforcement agencies and non-
governmental organizations in Tampa, Orlando, El Paso, Houston,
Connecticut, Las Vegas, Albuquerque, St. Louis and San Francisco. All
the trainings were extremely well received. We are also in the process
of developing a model curriculum for the victim-centered approach to
identifying and rescuing trafficking victims and investigating and
prosecuting their traffickers and abusers.
States are increasingly recognizing that trafficking is not just a
federal problem. Texas, Washington, Minnesota, Missouri, and Florida
already have state trafficking laws. The Division has worked with
states to find ways to address human trafficking, including publishing
for consideration a model state anti-trafficking statute.
Our prosecutors at the Department of Justice have an impressive
record of convictions on trafficking charges. Convictions, however,
cannot alone heal the pains and emotional scars inflicted on these
victims. How does a girl that has been repeatedly forced to engage in
commercial sex acts--repeatedly raped--fully recover? As we have made
clear time and time and again, these victims need our help. They need
our protection. True rescue means providing victims with the assistance
they need to rebuild and recapture their lives. For this reason, the
Justice Department requires that each of our prosecutors and
investigators use a victim-centered approach.
The needs of the victim must take high priority. We work--and will
continue to work--with service providers to ensure that the victims of
trafficking are kept safe. Immediately after we uncover a trafficking
crime, Department of Justice victim-witness coordinators help place the
victims in a shelter. We work with the Bureau of Citizenship and
Immigration Services to obtain Continued Presence and ``T-Visas'' for
these victims. A ``T-Visa'' permits victims of severe forms of
trafficking to live and work legally in the United States for three
years while their cases are investigated and prosecuted.
We likewise work with the Department of Health and Human Services
to help victims obtain additional services for these victims--medical
care, screening for STDs, and emergency food and shelter. We help place
the victims with NGOs, funded in part by the federal government. Our
charge, given to us by the President, is to help these victims begin to
rebuild their lives and that is exactly what we shall continue to do.
In short, it is the stated policy of the Department of Justice that
individuals who have been subjected to a severe form of trafficking
truly are victims in every sense of the word.
I am proud to say that the Civil Rights Division's record of victim
protection has been unflagging and robust. Since 2001, the Civil Rights
Division has helped over 680 trafficking victims from 46 countries
obtain refugee-type benefits under the Trafficking Victims Protection
Act. In that same time period, the Division has helped over 500 victims
extend their stay in the U.S. to assist law enforcement, through
continued presence or a T-Visa certification.
Despite our successes, we know that we have much more work to do.
The fight against human trafficking remains among the Department's
chief priorities.
protecting voting rights
Of particular importance during 2004 was the Division's
responsibility to enforce certain federal voting rights statutes. Let
me be absolutely clear: no civil right is more important to President
Bush, to Attorney General Gonzales, or to me, than the full and fair
enjoyment of the right to vote. The ballot is the essential building
block of our democracy, and it must be protected.
It merits noting at the outset that ours is a Federal system of
Government. Article I, Section 4 of the Constitution provides that
``[t]he Times, Places and Manner of holding Elections for Senators and
Representatives shall be prescribed in each State by the Legislature
thereof.'' However, recognizing the national importance of such
elections, it continues, ``but the Congress may at any time by Law make
or alter such Regulations. . . .'' Thus, except for where Congress has
expressly decided otherwise, primary responsibility for the method and
manner of elections, and for defining and protecting the elective
franchise lies with the several states.
Congress has, in a number of distinct areas, determined that a
federal scheme should overlay the states' election responsibilities.
The first of these came in 1965 when Congress enacted the Voting Rights
Act. This statute, which followed the startling and transforming events
of ``Bloody Sunday''--the beating of peaceful marchers on the Edmund
Pettus bridge in Selma, Alabama--perhaps more than any other modern-day
law has changed America for the better. Subsequently, Congress has
enacted several additional federal voting laws, including the 1970,
1975 and 1982 amendments to the Voting Rights Act, the Uniformed and
Overseas Citizen Absentee Voting Act of 1986, the National Voter
Registration Act of 1993 (``Motor Voter'' or ``NVRA''), and the Help
America Vote Act of 2002 (``HAVA''). The Civil Rights Division enforces
the civil provisions of these laws, while the Public Integrity Section
of the Criminal Division enforces the criminal misconduct and anti-
fraud prohibitions of these laws.
Nothing so acutely focuses attention on voting rights as a national
election. Such an election requires early and substantial planning on
the part of the Division to ensure that it properly carries out its
mandate to enforce the several statutes entrusted to it. Accordingly,
starting in April 2004, I met with my voting rights leadership team to
establish broad goals for the Division's effort. The Division's
subsequent efforts, set in motion at that time, fall generally into
three categories: monitoring, transparency, and legal accountability.
Election Monitoring Under the Voting Rights Act
Robust monitoring of elections is among the most effective means of
ensuring that voting rights are respected. Monitoring has two primary
and salutary effects. First, the presence of federal monitors serves as
a deterrent to wrongdoing in a jurisdiction; second, monitors serve a
reporting function, bringing to the Division's attention information
that permits us to determine whether further legal action is necessary,
and providing the facts necessary to take it. Accordingly, this past
year the Civil Rights Division mounted the most extensive election-
monitoring program in its history.
The Division generally employs two types of individual to watch an
election.
First, the Voting Rights Act provides for the appointment of
federal voting observers by order of a federal court pursuant to
Section 3(a), or, with regard to political subdivisions covered under
Section 4 of the Voting Rights Act, upon the certification by the
Attorney General, pursuant to Section 6.\1\ In addition, Section 8 of
the Voting Rights Act provides for the appointment of federal observers
within political subdivisions certified by the Attorney General or by
order of a federal court pursuant to Section 3 of the Voting Rights
Act.
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\1\ A total of 148 counties and parishes in 9 states have been
certified by the Attorney General pursuant to Section 6: Alabama (22
counties), Arizona (3), Georgia (29), Louisiana (12), Mississippi (50),
New York (3), North Carolina (1), South Carolina (11) and Texas (17). A
total of 11 political subdivisions in 11 states are currently certified
by federal court order: California (3), Illinois (1), Indiana (1),
Louisiana (1), Michigan (1), New Jersey (1), New Mexico (3), New York
(2), Pennsylvania (1), South Dakota (1), and Washington (1).
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Second, in addition to the statutorily approved monitoring, it has
become common practice for the Department of Justice to send Department
personnel to monitor elections in other political subdivisions where
concerns about elections have been expressed.
Early in 2004 we identified election monitoring as a chief
priority. At that point, we notified the Office of Personnel Management
that we would request a number of monitors greatly in excess of prior
election years' totals.
Given the anticipated scope of the 2004 monitor and observer
program, identifying sufficient personnel to deploy was a challenge.
Traditionally, the Civil Rights Division has deployed Voting Section
staff along with a limited number of federal prosecutors experienced in
election monitoring. This year, the determination was made not to
employ federal prosecutors as election monitors actually at polling
places. Rather, we recruited non-prosecutor attorneys and staff widely
throughout the Division.
All monitors received substantial training in election-related
civil rights laws, including, for the first time ever, those laws
designed to protect the rights of voters with disabilities. The
Division likewise worked with OPM to ensure quality training of OPM
election observers.
Election monitoring in 2004 began with the early primary elections
and proceeded throughout the year. Prior to the general election, the
Department sent 802 monitors and observers to 75 elections in 20
states, as compared with 340 monitors and observers deployed to 21
elections in 11 states pre-election during 2000.
On Election Day itself, we deployed an additional 1,073 monitors
and observers to watch elections in 87 elections in 25 states, as
compared with 363 monitors and observers in 20 elections in 10 states
on election day in 2000.
In short, by way of comparison, during all of calendar year 2000,
the Division sent 743 monitors and observers to 46 elections in 13
states. During all of calendar year 2004, including elections that were
held after November 2, we deployed a total of 1,996 federal personnel
to observe 163 elections in 29 states, our most extensive monitoring
effort ever.
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Importance of Transparency
While impressive, this unprecedented monitoring effort by itself
would have been of little use. Rather, it is just as important that the
voting public and election officials know that the Division is actively
monitoring elections and enforcing federal voting rights statutes.
Accordingly, we made it a point to be substantially more public in
our election protection work than the Division has been in prior
election years.
One area in which this was particularly significant was the manner
in which election monitors are allocated. Traditionally, the Division
has assigned monitors based on internal non-public criteria. This past
year was different. In April, I directed the Voting Section to prepare
a written explanation of the method by which we have assigned monitors
to jurisdictions, identifying clearly the criteria upon which
monitoring decisions would be made.
On May 4, 2004, Division leadership met with representatives of
many civil rights and voting-related organizations. During that
meeting, I presented in detail the Division's plans for preparing for
the general election. This included a lengthy explanation of the
process by which we would select jurisdictions to be monitored.
Moreover, we distributed guidance on how to request monitoring for a
jurisdiction, along with the information necessary to substantiate such
requests. In addition to meeting with the Division, leading civil
rights groups' leaders were also invited to make a presentation at the
Attorney General's Ballot Access and Voting Integrity Symposium in July
2004. This Symposium was designed to train Department of Justice
personnel on the work both of the Civil Rights Division and the
Criminal Division.
Ultimately, with regard to election monitoring, the Voting Section
identified 14 jurisdictions in nine states that were operating under
federal court orders or decrees, all of which were monitored. Moreover,
the Voting Section identified 58 additional jurisdictions as
appropriate for monitoring, often through our vigorous affirmative
outreach to minority advocates, and all were monitored. In addition, we
received written requests from civil rights and election organizations
that we send personnel to an additional 15 jurisdictions. Most of the
referred jurisdictions satisfied the protocol and were assigned
monitors or observers.
Law Enforcement & Local Accountability
As I noted, it is not sufficient only that elections be monitored;
federal laws also must be enforced. Therefore, the final prong to the
Division's election protection efforts was a robust litigation and
enforcement effort.
Ballot Access: Voting Rights Act Section 203, the National
Voter Registration Act and Uniformed & Overseas
Voters.
First, during 2004, the Division enjoyed tremendous success
enforcing those statutes that relate principally to access to the voter
registration and balloting processes.
During 2004, we established record levels of protection for
minority language voters under Section 203 of the Voting Rights Act.
Section 203 provides that all ``election materials and information''
available in English must also be available in the applicable minority
language for those who need it. This includes ballots, instructions and
other materials. Often, jurisdictions even provide bilingual
pollworkers to assist voters. The statute is designed to ensure that
citizens not only have the opportunity to vote, but also to ensure that
they cast an informed and knowing vote.
In 2004, the Civil Rights Division has filed and successfully
resolved as many Section 203 cases as it had filed in the previous 8
years combined. These cases have had substantial impact. In Harris
County (Houston) TX, for example, the Division entered into a
Memorandum of Understanding with the county to address the language
needs of citizens of Vietnamese background. Complaints were also filed
in San Diego to address language needs of Latino and Filipino voters;
and in Suffolk County, NY; Yakima County, WA; and Ventura County, CA to
address language needs of Latino voters. Other cases involved minority
language voters in Passaic County, New Jersey, and Cibola, Soccoro and
Sandoval Counties, New Mexico. Together, the Division's work last year
affected more minority language voters than all previous Section 203
cases combined.
Under the National Voter Registration Act, better known as ``Motor
Voter,'' the Division filed lawsuits against Pulaski County, Arkansas
and against the State of New York; resolved two investigations; and
opened three new NVRA investigations.
The Arkansas suit challenged the County's improper voter
registration and election rolls maintenance for federal elections. The
resulting consent decree required the county to implement far reaching
policy and process changes, including restoring improperly removed
voters; removing the names of deceased, departed, or ineligible voters;
and providing electronic ``polling place lookup'' systems.
The New York suit involves inadequate provision of voter
registration opportunities at offices located at state institutions of
higher education serving disabled students. This case is still ongoing.
With so many servicemen and servicewomen oversees, the Division's
work under the Uniformed and Citizen Overseas Absentee Voting Act
(UOCAVA) was similarly critical in 2004. During the primary elections,
the Division filed suit against the states of Georgia and Pennsylvania
for failing to give overseas voters a meaningful opportunity to
participate in the election by mailing absentee ballots too late. The
Division obtained settlement agreements securing the rights of such
voters under UOCAVA.
Election Official Accountability--The Help America Vote Act
Also, the Division was active in enforcing the Help America Vote
Act of 2002.
During 2004, we filed the Division's first lawsuits to enforce
HAVA, against San Benito County, CA and Westchester County, NY. Both
suits were over the counties' lack of compliance with HAVA because poll
officials failed to post the required voter information. San Benito
County also failed to have a system for provisional voters to find out
whether their ballots were accepted and counted. Consent agreements
have been reached in both cases.
The Department also participated in several lawsuits that
concerned, in part, the scope of HAVA.
Among its many provisions, HAVA requires that state and local
election officials permit any individual, whose name does not appear on
the official registration list for a polling place or whose eligibility
is otherwise questioned, to cast a provisional ballot if the individual
declares that he ``is a registered voter in the jurisdiction in which
[he] desires to vote. . . .'' Congress, however, did not define the
word ``jurisdiction'' for purposes of HAVA. Some states defined
jurisdiction to mean a voting precinct, thus requiring a voter to go to
his precinct to cast a provisional ballot to be counted. This preserves
these states' traditional precinct-based voting system. These states
all directed election officials to help voters find the precinct in
which they were supposed to vote, so they could cast their provisional
ballot. Other states, however, opted to depart from the traditional
precinct based system, defining jurisdiction to mean counties, or even
larger geographic subdivisions. As a result, persons in these states
could cast a provisional ballot that would be counted in any polling
place within that larger geographic subdivision, and did not have to go
to their voting precinct.
Plaintiffs challenged several states' determinations on this
matter. One such suit challenged Michigan's decision to maintain its
traditional precinct-based voting jurisdiction system. At the request
of Attorney General of the State of Michigan, we provided views on this
matter to the court. The United States does not view HAVA as
prohibiting precinct-based voting. Because Congress did not define the
term jurisdiction, but rather left its definition to each state, state
law could require a voter to be registered in a particular polling
place ``jurisdiction'' as a requirement of voter eligibility. This
matter, it should be noted, was only one of numerous legal issues
raised in those cases; we appropriately tailored the brief to address
only this narrow federal issue regarding HAVA. The final court of
review in each case to consider this issue agreed with the Department's
view,\2\ although the Sixth Circuit disagreed on the issue of who may
file a lawsuit on this issue in the first place.\3\
---------------------------------------------------------------------------
\2\ Although referenced in this statement, no footnote was provided
in this statement.
\3\HAVA, expressly delegates to the Attorney General authority to
enforce the statute in federal court. Separately, HAVA requires States
to create state-level administrative processes for entertaining private
HAVA complaints. The degree to which statutes that do not provide a
private right of action within their own four corners may be enforced
through Section 1983 has narrowed in recent years. Most recently, in
Gonzaga v. Doe (2002), the Court held that before a statute may be
enforced by a private individual through Section 1983, Congress must
have (i) unambiguously manifested its intent to create an individual
right, and (ii) not intended for that right to be enforced exclusively
through one or more specific means other than Section 1983. Moreover,
where Congress has entrusted a statute to the Department's exclusive
charge, the Department will defend vigorously Congress' enforcement
scheme.
---------------------------------------------------------------------------
The United States argued that these congressionally created,
distinct, and separate enforcement schemes strongly suggest that
Congress did not intend for private individuals to bring HAVA-derived
actions in federal court pursuant to Section 1983. Rather, these
provisions strongly suggest that Congress intended to avoid prolonged
election litigation, and intended rather to promote a uniform national
standard enforced in court by the Attorney General alone.
The legislative history supports this view. Indeed, Congress debated
whether to include an express private right of action in HAVA, and
declined to do so. Senator Dodd, a HAVA sponsor and Senate conferee,
recognized that HAVA was not privately enforceable, when he said:
While I would have preferred that we extend [a] private
right of action. . . , the House simply would not entertain
such an enforcement provision. Nor would they accept
federal judicial review of any adverse decision by a State
administrative body.
148 Cong. Rec. S10488-02, S10512 (Oct. 16, 2002).
Matters actually resolved through litigation are but the tip of the
Division's voting rights efforts. Rather, the Division's Voting Section
has a strong technical assistance program, which actively promotes
compliance with federal voting laws, and resolves many matters well
before they reach the judicial action stage.
Under Section 203 of the Voting Rights Act, for example, we have
devoted substantial resources to pre-election outreach, compliance and
technical assistant. After the results of the 2000 census were
announced in 2002, we wrote to each jurisdiction covered by Section 203
to appraise it of its obligations. Moreover, we personally contacted by
phone each of the newly covered jurisdictions. This massive outreach
effort promoted substantial awareness of a previously unknown
obligation.
As part of the continuing initiative to encourage voluntary
compliance by covered jurisdictions, I mailed letters on August 31,
2004 to more than 400 Section 203 and 4(f)(4) covered jurisdictions
reminding them again of their obligations to provide Spanish and other
minority language assistance, and offering guidance on how to achieve
compliance.
We conducted a similarly extensive outreach and educational
campaign with regard to the provisions of HAVA, particularly those that
took effect on January 1, 2004. We wrote each chief state election
official regarding HAVA's requirements. Then, when HAVA took effect, we
widely publicized its newly effective provisions. Also during 2003 and
2004, Division personnel handled numerous inquiries, responding
informally to many requests from states and organizations. Those
responses are posted on our web site. Next, in early 2004, we sent
informal advisories to six states raising specific concerns over their
ability to comply with HAVA in time for their first elections for
federal office in 2004. After the first round of federal primary
elections in February and March 2004, we wrote to 3 states raising
compliance concerns noted by monitors. Finally, we conducted a detailed
state-by-state analysis of compliance with HAVA's statewide voter
registration database requirements. This analysis has resulted in
contact with several states regarding this issue and on-site visits to
3 states.
As of January 2004, HAVA's requirements for provisional voting,
identification for first-time voters who registered by mail, voter
information postings, and statewide voter registration databases (for
those few states that did not apply for a waiver until January 2006),
went into effect and were required to be implemented for the 2004
Presidential Election. As of January 2006, all state voting systems
must meet the federal voting systems standards of Section 301 including
permitting voters to correct voting errors and verify their votes;
meeting disability and alternative language accessibility requirements;
and providing for a manual audit capacity.
The Division sent warning letters or informal advisories early in
2004 to six states (Michigan, Mississippi, New York, Massachusetts,
Connecticut, and Rhode Island) raising specific concerns regarding
whether they would be in compliance with all of HAVA's new requirements
(i.e., provisional voting, voter identification and voter information
postings) by the time of their first federal elections in 2004. After
the first round of federal primary elections in early 2004, the
Division sent warning letters to three states (California, Mississippi
and Texas) to raise specific HAVA compliance issues regarding
provisional voting, voter identification and voter information postings
that our observers and monitors had noted in their early elections.
These letters and follow-up contacts with the states spurred them to
take additional actions to bring about full HAVA compliance.
We also offered states technical assistance with respect to the
requirements of the NVRA and also UOCAVA. We twice wrote each chief
state election official regarding these obligations. With regard to
UOCAVA we worked closely with the Department of Defense to ensure that
ballots were distributed timely to troops serving in the field, and
again I wrote jointly with the Pentagon to remind States of their
obligations.
Finally, we wrote to the chief election official of the several
Section 5 states affected by the 2004 hurricanes, namely Florida,
Alabama, Mississippi, Louisiana, and Georgia. We reminded these states
of their obligation to submit any emergency voting related changes
necessitated by the hurricanes, such as changes in polling locations,
to the Attorney General. We also offered to provide expedited review
and consideration.
Election Day Activities
The Division's efforts throughout 2004 culminated in Election Day.
As we approached that deadline, our efforts and their intensity
increased.
Complaint Gathering and Review
Three weeks prior to Election Day, we initiated a comprehensive
daily review of national media sources and election-related news
services. Our attorneys combed the Internet and newspapers to identify
on a daily basis all reported possible voting rights violations. The
Voting Section opened inquiries into dozens of potential improprieties
based on this data. In addition, we also gathered allegations of
potential problems from national civil rights and voting rights groups.
The vast majority of these matters were resolved almost
immediately. For example, in response to intimidation concerns, we
worked out protocols with sheriffs in Duval and Broward Counties,
Florida to minimize a visible police presence at or near polling
places. We also met with political party/campaign leaders in both camps
to discuss the appropriate circumstances for challenging voters.
Challenges thereafter were few and far between. We also looked into
fears of possible racial unrest in Arizona, resulting in part from the
presence of Proposition 200 on the ballot. As a result of our
inquiries, election officials coordinated with law enforcement to
develop contingency plans to respond to any Election Day armed
intimidation.
We also monitored, inter alia, allegations of improper felon
purges, allegations of law enforcement intimidation of voters, unequal
distribution of voting locations and machines, improper efforts to
disrupt or intimidate legitimate poll watching activities, improper
demands for identification, improper voter challenges, and improper
maintenance of voting rolls. As might be expected, many of these
reports turned out to be less than reported, the result of rumor and
suspicion. But, wherever allegations bore fruit we fully and diligently
investigated.
Many allegations were referred to the Public Integrity Section of
the Criminal Division. For instance, we noted media reports that a
voter registration firm operating in Nevada and other locations was
accused of destroying voter registrations. Such activity, if true,
implicates the public integrity criminal laws, and a referral to the
Criminal Division is appropriate, which, under the Department's
longstanding practice, then takes the lead. This follows as Criminal
prosecutions proceed under much tighter evidentiary and burden rules.
That said, once the Criminal Division has completed its work, civil
rights actions may follow.
While most of these inquiries were resolved pre-election, some
raised allegations of serious civil rights violations that required
additional investigation. I have directed the Voting Section to follow
up fully on all election-related investigations.
Administrative Preparations
On Election Day itself, the Division stood ready. We had increased
from fewer than five to fifty the number of dedicated phone lines ready
to handle election complaints. We had also developed a web-based
complaint system. And, we implemented new methods of record keeping
making certain that complaints were recorded accurately and responded
to promptly and properly.
On Election Day, the Voting Section received 1,088 calls on its
expanded phone system and 134 e-mail complaints on its specially
created complaint form placed on its website. Each of these contacts
was entered on the new automated database created to track complaints.
Many of these calls asked questions more appropriately referred to
local election officials, such as where a polling place was located;
and in these circumstances, referrals were made. Approximately 600
calls and e-mails were referred to attorneys, who spoke directly with
the complainant. Approximately 130 were designated for further follow-
up. A significant number of these complaints were subsequently resolved
over the phone by Section staff and/or follow-up investigations by
attorney staff on Election Day. Many of these resolutions resulted in
state and local officials taking steps to ensure the complaining party
was permitted to vote.
A few examples of matters resolved quickly by telephone include:
<bullet> An 18-year-old in Louisiana told that she could not
vote for President--we resolved the matter with election
officials;
<bullet> Poll workers in Illinois using racially derogatory
language towards voters of middle-eastern descent--we resolved
the matter with election officials;
<bullet> Reports of difficulties properly distributing and
segregating provisional ballots--we advised election officials
as to the applicable requirements of HAVA; and,
<bullet> Reports that individuals in line at the time polls
closed would not be permitted to vote--we confirmed with local
officials that everyone in line at that time would be permitted
to vote;
Twelve investigations, opened as a result of election-day
complaints, remain pending. In addition, during the pre-election
period, the Section received complaints in sixteen jurisdictions where
Section 203 investigations were ongoing at the time of the election.
These investigations remain open. Investigations of an additional six
pre-election complaints remain open, as do several matters referred to
the Criminal Division's Public Integrity Section for investigation.
Election Monitoring Program Performance
On Election Day, our monitors and observers performed
superlatively. As I noted, last year's monitoring effort was the
Division's largest ever.
In short, during 2004, the Civil Rights Division mounted its most
extensive election protection effort in its history, and accomplished
much of which to be proud. Looking forward, the coming year should see
a focus on more traditional voting rights matters. We recently
assembled a team of attorneys to look at Section 2 matters. We have
already filed one lawsuit under Section 2 this year against Noxubee
County, Mississippi, and we are considering the potential for
investigation in about half a dozen other jurisdictions. In response to
the Supreme Court's decision in Georgia v. Ashcroft, we have updated
our analytical framework for Section 5 analysis of redistricting plans,
having vigorously litigated the Georgia case on remand before the case
was dismissed prior to trial. And, with respect to HAVA, we are now
looking forward to assisting States in the run-up to January 1, 2006,
when the balance of its requirements take effect.
By several accounts, the last twelve months have been marked with
unprecedented access to the ballot. To wit, the Election Assistance
Commission in its February 2005 ``Report to Congress on Election Reform
Progress in 2004'' stated:
<bullet> 1.5 million people cast provisional ballots.
<bullet> Over 1 million provisional votes were counted (68%).
<bullet> 17 states used provisional ballots for the first
time.
<bullet> Since 2000, at least 25% of voters have used new
voting equipment, with another 30% to be using new equipment by
2006.
<bullet> At least nine states had developed and used a
statewide voter registration database to help increase access
to the polls.
Likewise, as stated in the CalTech/MIT Voting Technology Project's
February 2005 report entitled, ``Residual Votes in the 2004 Election'':
``17 million more people voted in 2004 than voted in 2000, a
14% increase--approximately 1 million of those can be
attributed to reforms in voting machines and administrative
practices.
Of the 37 states that reported total turnout in 2004, the
residual vote rate was 1.1% in 2004, a reduction from the 1.9%
in 2000--residual votes were those not counted because of
mistakes, overvotes, or undervotes--this equals a recovery of 1
million lost votes.
Florida and Georgia saw the biggest decreases in the residual
vote rate from 2000 to 2004 at 2.5% and 3.1%, respectively
Taking the American electoral system as a whole, the emerging
evidence is that the election of 2004 was run much better than
the election of 2000.''
HOUSING AND CIVIL ENFORCEMENT
The Civil Rights laws help to guarantee the ability of every
American to succeed. Obtaining education, employment, housing, access
to public accommodations, and the financial markets are fundamental
stepping-stones to personal and professional success--and they must be
provided without illegal discrimination based on race, national origin,
and other prohibited factors.
Indeed, as President Bush recently noted:
At the start of this new century, we will continue to teach
habits of respect to each generation. We will continue to
enforce laws against racial discrimination in education and
housing and public accommodations. We'll continue working to
spread hope and opportunity to African Americans with no
inheritance but their character--by giving them greater access
to capital and education, and the chance to own and build and
dream for the future. In this way, African Americans can pass
on a better life and a better nation to their children and
their grandchildren, and that's what we want in America.
The work of our housing and civil enforcement section squarely advances
this mission.
Fair Housing
President Bush has spoken of the need to create an ``Ownership
Society,'' an America in which all citizens may find the added measure
of comfort and security that comes from owning their own home. A
necessary step in that process is making sure that all Americans may
buy, sell, or enjoy the home of their choice without fear of illegal
discrimination.
The Division is charged with ensuring non-discriminatory access to
housing, public accommodations, and credit. We have worked hard to meet
this weighty responsibility. During CY 2004 alone, the Housing Section
filed 43 lawsuits, including 24 pattern or practice cases, an 85
percent increase over CY 2003, and an enforcement rate that is 9
percent higher than the average number of filings over the previous 7
years. Thus far, in FY 2005, we already filed 17 suits, a pace that
promises to make this an outstanding year.
The facts of these cases remind us that unfortunately racism
persists today.
In one case, we filed a lawsuit against the owners and managers of
the Foster Apartments, in St. Bernard Parish, Louisiana, alleging
discrimination against African-Americans who were seeking housing.
Specifically, the defendants told black prospective applicants that
they had no apartments available for rent while at the same time
telling white applicants that apartments were available. And just last
month, in a case with disturbingly similar allegations, we filed a suit
alleging that an apartment complex in Boaz, Alabama discriminated
against African-Americans by, among other things, falsely telling them
that no apartments were available
Likewise, in May 2004, the court entered a Consent Decree in the
United States v. Habersham Properties Inc., et al., resolving our
allegations of a pattern or practice of race discrimination against
African-American prospective renters at the Crescent Court apartment
complex in Decatur, Georgia. This case came to our attention based on a
complaint from an African-American woman who was told that no
apartments were available when she went to the complex in person, but
was informed of availabilities when she called back on the telephone.
We confirmed the discrimination through the Division's testing program.
During the testing, the rental agent consistently allowed white testers
to inspect available apartments and gave them the opportunity to rent,
while falsely telling black testers that there were no apartments
available for inspection or for rent. The consent decree in this case
requires the defendants to: adopt non-discriminatory policies and
procedures; provide training for employees on the requirements of the
Fair Housing Act; submit to compliance testing, and maintain records
and submit reports to the Division. The defendants paid a total of
$180,000 in damages: $170,000 in damages for aggrieved persons
(including the African-American woman who brought the case to our
attention) and a $10,000 civil penalty.
Discrimination is not limited to the basis of race. Consider, for
example, the facts of a case we took to trial: United States v. Veal.
We alleged a pattern or practice of discrimination by the defendant
landlords, who systematically sought sexual favors from female tenants.
One of the victims was 19 years old and living in her car with her two
children when she moved into the top floor of a duplex owned by the
defendants. On two separate occasions, one defendant came to her house,
let himself in unannounced, and forced her to have sex with him on her
bed. After these incidences, she used the medicine she was receiving to
treat her sickle cell disease to try to kill herself. Another victim
was homeless and living in her car, separated from her children, when
she rented a home from the Veal's. After resisting several incidents
where a defendant fondled her and refused to stop, the victim
considered committing suicide to escape the harassment. In this case we
secured a jury award of $1.1 million, the largest FHA award in the
Division's history.
Fair Lending
Our lawsuits have not only defended the rights of Americans to
obtain rental housing, but also to purchase houses. While a lender may
legitimately consider a broad range of factors in considering whether
to make a loan, race has no place in determining creditworthiness.
``Redlining'' is the term employed to describe a lender's refusal to
lend in certain areas based on the race of the area's residents. This
is a shortsighted and offensive practice based on stereotypes, and it
must end.
During 2004 the Division filed and resolved two major redlining
cases under the Fair Housing Act and the Equal Credit Opportunity Act
(``ECOA''). Our lawsuit against Old Kent Bank alleged that the bank
redlined the predominantly African-American City of Detroit by failing
to provide either small business or residential lending services within
city limits. Pursuant to the May 2004 settlement agreement, the bank's
successor will open three new branch offices, spend $200,000 for
consumer education programs, and provide $3 million in Bank-subsidized
loans to the redlined areas.
Our second case in this area was against First American Bank. We
alleged that the bank redlined the predominantly African American and
Hispanic neighborhoods in the Chicago and Kankakee metropolitan areas
by failing to provide residential, small business, or consumer lending
services. This case resulted from the first redlining referral ever to
the Department by the Federal Reserve Board. Pursuant to the July 2004
consent order, First American Bank will open four new branch offices,
spend $700,000 on outreach and consumer education programs, and provide
$5 million in Bank-subsidized loans to qualified residents of the
redlined areas.
This was the first time the Division has ever filed two such cases
in the same year. These lawsuits represented firsts in another area as
well; they were the Division's first two suits filed under the Fair
Housing Act and ECOA that challenged redlining not only for residential
mortgage loans but also small business loans. As President Bush has
observed repeatedly, small businesses are the engine that drives the
great American economy. We will remain vigilant in ensuring that
Americans have equal access to the capital markets that allow small
businesses to grow and prosper.
Public Accommodations & Equal Land Use
Last year also saw the Division successfully bring a lawsuit
against Cracker Barrel restaurants that alleged a pattern or practice
of racial discrimination in a public accommodation, in violation of
Title II of the Civil Rights Act of 1964. Following an extensive
investigation, the Division uncovered evidence that Cracker Barrel
employees intentionally provided poor or no service to African-American
customers, segregated seating in their stores, and ignored complaints
of such discriminatory activity. In May 2004, we resolved the matter
through a consent decree that required the company to implement
comprehensive reforms of its policies, training and investigations of
discrimination complaints. The Section is now working closely with the
Auditor to ensure full compliance.
The Housing and Civil Enforcement Section is charged additionally
with fighting religious discrimination in a variety of contexts. This
past year we were again active in defending and enforcing the Religious
Land Use and Institutionalized Persons Act, or RLUIPA, which Congress
passed in 2000. During 2004, we opened nine investigations, and
successfully resolved three investigations where the jurisdiction opted
to comply with the law without the need for formal action by the
Division. Of particular note, this January the Division dismissed its
complaint in United States v. Maui Planning Commission, our first
contested RLUIPA matter, after the County agreed to issue to the
religious community a previously denied construction permit. The
Division also secured two significant appellate victories, cementing
RLUIPA's constitutionality and reach. In Midrash Sephardi v. Town of
Surfside, the Eleventh Circuit agreed with us first that RLUIPA
constitutes a valid exercise of Congressional authority, and second
that the statute was violated where religious assemblies are barred
absolutely from a district where fraternal lodges such as Masonic
temples are permitted to locate. In Sts. Constantine and Helen v. New
Berlin, the Seventh Circuit on February 1, 2005, held that a Wisconsin
city violated RLUIPA by imposing unreasonable procedural requirements
on a Greek Orthodox congregation seeking to build a church. The Civil
Rights Division briefed and argued the case as amicus.
employment discrimination
Combating employment discrimination ranks among the Division's most
longstanding obligations. As the Committee knows, Title VII of the
Civil Rights Act of 1964 prohibits employment discrimination on the
basis of race, color, religion, sex or national origin. The vast
majority of employment discrimination allegations are raised against
private employers, and are processed and/or prosecuted by the Equal
Employment Opportunity Commission (``EEOC''). The Civil Rights Division
has responsibitity for only a small, but vitally important aspect of
Title VII enforcement: We have responsibility for allegations raised
against those employers who should set the standard for compliance--
public employers. During 2004, we achieved record levels of enforcement
in that area.
Section 706--Individual Allegations of Employment Discrimination
The bulk of the Division's work involves individual claims of
discrimination asserted under Section 706 of Title VII. Such
allegations are first filed with and investigated by the EEOC. If the
EEOC determines that a suit may lie, the matter is referred to the
Division for enforcement. During FY 2004, we initiated investigations
on 33 charges of individual discrimination, and filed eight lawsuits
under Sec. 706, the most filed since 2000, and just 3 short of a
record-setting year.
These included several extremely significant actions:
We sued, for instance, the Pattonville-Bridgeton Fire Protection
District, alleging that it subjected its only black firefighter to
egregious racial harassment at work. During the time he was employed,
he was the target of repeated, offensive racial slurs, which culminated
in June 2002 when his car was vandalized with the word ``n----r''
scratched on its driver's door. Trial has been set for the summer of
2005.
In United States v. City of Baltimore, we alleged severe and
pervasive sexual harassment of a female carpenter. Specifically, we
alleged that she had been subjected to acts of indecent exposure by a
harassing supervisor, who prominently displayed pornography in the
workplace, simulated sexual acts while telling the female carpenter
that he wanted to perform those acts on her, and encouraged sexually
offensive behavior and unwanted touching by her coworkers. The Division
successfully obtained a comprehensive consent order.
We similarly filed suit against the District of Columbia Fire
Department, challenging a policy which allegedly required new female
emergency medical technicians to undergo a pregnancy test, and which
required them either to resign or undergo an abortion in the event that
they ``failed'' that test.
Section 707--Pattern or Practice Cases
In addition to filing individual claims, the Division is also
charged with independent authority to investigate on its own and to
challenge patterns or practices of employment discrimination. This
pattern or practice jurisdiction is the heart of the Division's
practice. Such suits are extremely complex, time consuming, and
resource-intensive. As a result, historically, the Division has managed
only one per year. This past year, however, we prevailed in a major
pattern or practice trial and we filed four additional lawsuits, the
most filed in any given year since at least the mid-1990s.
In United States v. Delaware State Police, we filed suit against
the Delaware State Police alleging that the State Police was engaged in
a ``pattern or practice'' of discrimination against African Americans
in violation of Title VII. Specifically, we alleged that a
qualifications test used by the State Police had a discriminatory
disparate impact against African Americans, was not ``job related and
consistent with business necessity'' and, therefore, violated Title
VII. The case was bifurcated into liability and damages proceedings. In
August 2003, the court held a trial to determine liability.
At trial, the Department submitted the names of 97 African-
Americans who failed the test but who nevertheless obtained law
enforcement certification and employment elsewhere--including the
United States Secret Service and police agencies in Delaware, Maryland,
New Jersey and Pennsylvania. On March 22, 2004, the court issued a
decision agreeing with our position and concluding that the State
Police had set the cut score for the challenged examination ``at an
impermissibly high level'' and, accordingly, determined that the State
Police's use of the examination violated Title VII. We are currently in
negotiations with the State to attempt to resolve liability issues
without having to resort to further contested litigation.
In United States v. Erie (Pa) Police Department, we have alleged
that the police department was engaged in a pattern or practice of
discrimination against women in violation of Section 707 of Title VII,
by using a physical agility test for entry-level police officers that
resulted in disparate impact on women. This suit is presently in trial.
In United States v. Gallup, New Mexico, we alleged that the City
engaged in a pattern or practice of employment discrimination in hiring
in all departments against American Indians based on race. After
negotiations, we reached a settlement and the Court entered a consent
decree. The City has agreed to: (1) train employees engaged in hiring
and recruitment; (2) implement policy changes; (3) pay up to $300,000
in monetary relief; and (4) accept 27 priority hires in various City
departments with remedial seniority.
In United States v. Los Angeles County Metropolitan Transportation
Authority, we alleged that the MTA has engaged in a pattern or
practice of religious discrimination by failing to reasonably
accommodate employees and applicants who are unable to comply with
MTA's requirement that they be available to work weekends, on any
shift, at any location. The lawsuit, also filed under Sec. 706 of
Title VII, alleges that the MTA failed to accommodate a former MTA
employee because of his Jewish faith by failing to reasonably
accommodate his religious practice of observing the Sabbath and
subsequently discharging him from employment.
Finally, we took steps to protect Sikhs and Muslims in United
States v. New York Metropolitan Transit Authority. We alleged that the
New York MTA has engaged in a pattern or practice of discrimination in
employment on the basis of religion in violation of Title VII by: (1)
selectively enforcing the MTA's uniform policies regarding head
coverings toward Muslim and Sikh bus and train operators; and, (2)
failing or refusing to reasonably accommodate the religious beliefs and
practices of Muslim and Sikh bus and train operators.
Uniformed Service-members Employment Rights and Restoration Act
In addition to its traditional obligations under Title VII, the
Division recently took responsibility for enforcing the Uniformed
Service-members Employment Rights and Restoration Act (``USERRA'').
USERRA prohibits an employer from denying any benefit of employment on
the basis of an individual's membership, application for membership,
performance of service, application for service, or obligation for
service in the uniformed services.
USERRA matters are referred to the Civil Rights Division by the
Department of Labor or by the individual who alleges the
discrimination. In each matter referred to the Division, we can either
pursue the case on behalf of the alleged victim or issue a ``right to
sue'' letter much like the EEOC does in employment cases. Since October
of 2004, the Division has received approximately 60 referrals. So far,
we have initiated 16 investigations and authorized one lawsuit.
Needless to say, in light of the elevated number of reservists and
National Guard members leaving civilian life to answer their country's
call, it is imperative that we be ready to meet this challenge. This
afternoon, I will be attending at training session for Division
attorneys being held at the Justice Department to better acquaint our
attorneys with the statute.
Discrimination against Immigrants
In many areas of the country and in many occupations, new and
recent immigrants make up a significant portion of the labor force.
These individuals often face discrimination because they look or sound
``foreign.'' When work-authorized immigrants, naturalized U.S.
citizens, or native-born U.S. citizens encounter workplace
discrimination linked to their ``foreign'' appearance, our Office of
Special Counsel for Immigration-Related Unfair Employment Practices
(known as ``OSC'') steps in. OSC enforces the anti-discrimination
provision of the Immigration Reform and Control Act of 1986 (``IRCA'').
OSC protects lawful workers from discrimination linked to their
citizenship status or national origin. Such discrimination often arises
in the review process mandated by IRCA, which requires employers to
verify the employment eligibility of each new hire. When employers ask
individuals who are perceived as ``foreign'' for more documents than
are required for this process, or reject valid documents, they may be
engaging in document abuse. While employers may restrict the
citizenship status of new hires if permitted under law, regulation or
government contract, OSC also addresses cases where workers are
wrongfully denied employment because of their citizenship status.
For example, in Taye v. Crystal Care Center, we reached a pre-suit
settlement agreement resolving a complaint brought to our attention by
a work authorized refugee from Liberia who was legally authorized to
work. It turned out that his employer's eligibility verification
procedures were discriminatory because the company failed to accept
unrestricted Social Security cards and driver's licenses from non-
citizens for employment eligibility verification purposes, but accepted
such documents from citizens. Since the beginning of 2004, we have
resolved more than 250 charges alleging immigration-related unfair
employment practices.
OSC also continues its successful program of telephone
interventions, allowing employers and workers to contact OSC
immediately as questions about discrimination arise. Since early 2004,
we have resolved over 260 employer and worker requests for immediate
assistance through our telephone intervention program. We also maintain
national toll-free telephone lines, for both workers and employers,
fielding over 19,000 calls since the beginning of fiscal year 2004. We
also distributed approximately 206,000 individual pieces of educational
materials in FY 2004, about 30 percent of which were in Spanish.
In addition to resolving complaints, we have been reaching out
actively to employers and community organizations so that the
requirements of the law are clearly explained. We operate a grant
program, through which the Civil Rights Division and its grantees have
conducted 822 outreach presentations in fiscal years 2004 and 2005.
Just last month we announced the availability of funds and explained
the application process for our next round of grants.
disability rights and the new freedom initiative
I had the privilege this past August of hosting a ceremony at the
Department of Justice to commemorate the 14th anniversary of the
signing of the ADA. The Division marked the event with the signing of
the 100th settlement agreement reached under Project Civic Access. As
you know, through Project Civic Access the Division works with
municipalities to bring all of their public spaces, facilities, and
services into compliance with federal law. These agreements quite
literally open civic life up to participation by individuals with all
sorts of disabilities. The gathering featured the remarks of several
local officials as well as individuals with disabilities from around
the nation who have been helped by Project Civic Access.
Nowhere was the beneficial effect of this program more evident than
in the comments of Ross Palmer, a 9 year old from Santa Fe, New Mexico,
who suffers from cerebral palsy. Asked what the changes made under the
Project meant to him, he said quite simply:
I want to say that the Americans with Disabilities Act allowed
me to get places, gave me more to do. I will be able to go
places and get around the neighborhood a lot easier and safer.
Thanks.
That is the simple truth of our work in the disability area.
Without simple modifications such as curb cuts, many Americans with
disabilities are quite literally prisoners in their own homes. The New
Freedom Initiative changes that. Furthering this goal, during 2004 we
successfully concluded 39 Project Civic Access Agreements, the most of
any year since the Project began.
Disability Rights Litigation
The Division has continued to pursue aggressively complaints of
disability discrimination. During FY 2004, the Disability Rights
Section resolved 353 such allegations through a combination of formal
and informal means, including contested litigation, settlement
agreements, and mediation. These have resolved complaints involving
such facets of everyday life as car rental agencies, grocery and
convenience stores, motels, and child care centers.
Separately, the Housing and Civil Enforcement Section handled
approximately a dozen cases to enforce the FHA's accessibility
requirements, including eight new cases. In addition, at the end of the
year, the Section was conducting pre-suit negotiations in four cases.
We entered into nine consent decrees in 2004 involving FHA's
accessibility requirements. Courts also entered six of these consent
decrees during 2004 and the three other consent decrees were awaiting
Court approval at the end of the fiscal year.
Of particular interest, the Division resolved two of the largest
design and construction cases ever filed.
In United States v. Deer Run Management Co., Inc., we filed and
resolved a design and construction suit under the FHA and the new
construction requirements of the Americans with Disabilities Act. The
consent decree, entered November 24, 2004, covers over 4,000 ground
units and affects 34 apartment complexes in 6 states. The agreement
also provides for a $1.2 million fund to compensate individuals who
were injured by the inaccessible housing, and for a $30,000 civil
penalty to the United States.
Separately, we also filed and resolved a suit against the Housing
Authority of Baltimore City. This was the Division's first case ever
brought against a public housing authority to enforce HUD's
Rehabilitation Act regulations. If approved by the court, it would
require extensive program and policy changes, the provision of more
than 800 heightened-accessible units, 2,000 new housing opportunities
for individuals with disabilities, and $1,039,000 in damages. This suit
is particularly significant in light of the Third Circuit Court of
Appeals' decision in Three Rivers Independent Living Center v. Housing
Authority of the City of Pittsburgh, which the Court concludes that
private plaintiffs may not sue to enforce HUD's FHA guidelines.
Of major significance, this past year the Department's position
prevailed before the Supreme Court in Tennessee v. Lane. The Supreme
Court ruled that private individuals may maintain a suit for money
damages against the States in cases brought to enforce access to courts
under Title II of the ADA. Since that decision, the Department has
defended the constitutionality of Title II in 12 lawsuits in areas such
as education, public transportation, licensing, prisons, and the
provision of community-based services.
Voluntary Compliance & Technical Assistance Programs
We have continued to devote substantial resources to promoting
voluntary compliance with the ADA. Our success in doing so is reflected
in the significantly high number of matters resolved. The Division
continues to operate an extremely promising mediation program, which
during 2004 successfully resolved 74 percent of the matters referred to
it--this process brings more relief to more individuals faster and with
less rancor than traditional litigation.
We also continue to work hard to provide compliance and technical
assistance to business owners and individuals with disabilities alike.
During 2004, our compliance assistance website, www.ada.gov, registered
nearly 30 million hits, the most ever in a single year, ranking it
among the most used Department websites. Our ADA Information Hotline
provided service to more than 100,000 callers, including 48,000 who
were personally assisted by specialists.
We hosted, during 2004, four ADA Business Connection meetings in
Houston, Seattle, Atlanta and Washington, D.C. The ADA Business
Connection was launched in January 2002 to help implement the
President's New Freedom Initiative. These meetings bring together
leaders of national business and disability organizations to discuss
how accessibility can make business sense. The more than 50 million
Americans with disabilities have $175 billion to purchase the services
and products offered by accessible business. This represents more
purchasing power than the sought after teenage market. Accessibility
and business profit can go hand-in-hand.
The Division also published Guidance to assist with compliance. Of
these, two merit particular mention. First, early in 2004, as part of
our preparation for the primary and general elections, we published a
33-page ADA Checklist for Polling Places, which walks local officials
through the process of improving accessibility at polling places. (And,
as I mentioned earlier, this year our election monitors were trained in
accessibility laws as well as more traditional voting rights
protections).
A second document that merits mention was a guide to making
emergency services accessible, An ADA Guide for Local Governments:
Making Community Emergency Preparedness and Response Programs
Accessible to People. When Florida was struck repeatedly by hurricanes
last fall, we received reports of individuals with disabilities being
turned away from emergency shelters. Fortunately, local officials and
emergency response groups resolved these difficulties promptly without
the need for the Division's intervention. Nevertheless, these anecdotes
underscored the need for activity in this area. We published a total of
9 technical assistance documents during 2004, in addition to providing
Spanish language translations of 12 such documents on the new Spanish
section of the www.ada.gov website.
Additionally, the Division is now in the process of working to
capture its success on the ADA voluntary compliance front in the
Housing and Civil Enforcement Section, which enforces the disability
provisions of the Fair Housing Act. We are presently developing a Fair
Housing Forum to bring together the Division's legal experts with
housing providers, architects, builders, and disability rights
advocates. It is our hope that by fostering discussion of respective
needs and concerns we can establish a dialogue between these important
constituencies, and at the same time improve understanding of, and
compliance with, this important civil rights statute.
ADA Rulemaking
In addition, this year we initiated the process to update the ADA
Standards for Accessible Design. On September 30, 2004, we published an
Advance Notice of Proposed Rulemaking (ANPRM) to begin the process of
revising the Department's regulations implementing the ADA. The
Department must revise its ADA Standards for Accessible Design to adopt
requirements consistent with the revised ADA Accessibility Guidelines
published by the Architectural and Transportation Barriers Compliance
Board (Access Board) on July 23, 2004. The revised guidelines, which
would apply to the design, construction, and alteration of any private
or public facility subject to the ADA, are the result of ten years of
collaborative efforts between the federal government, disability
groups, the design and construction industry, state and local
government entities, and building code organizations.\4\ The public
comment period for the advanced notice is open until May 31, 2005.
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\4\ The ADA requires the Justice Department to publish regulations
that include accessibility standards that are consistent with the
guidelines published by the Access Board. The Access Board's revised
guidelines are now effective as rulemaking guidelines for the
Department of Justice and the Department of Transportation, but they
have no legal effect on the public until these Departments issue final
rules adopting them as enforceable ADA Standards.
---------------------------------------------------------------------------
equal educational opportunities
Last year, we continued our important work ensuring the
availability of equal educational opportunities are available on a non-
discriminatory basis.
The mainstay of the Educational Opportunities Section's work
remains a substantial docket of open desegregation matters, some of
which are many decades old. The majority of these cases have been
inactive for years. Yet, each represents an as-of-yet unfilled mandate
to root out the vestiges of de jure segregation to the extent
practicable, and to return control of constitutionally compliant public
school systems to responsible local officials. We accordingly take
these cases very seriously.
To ensure that districts comply with their obligations, the
Division now actively initiates case reviews to monitor issues such as
student assignment, faculty assignment and hiring, transportation
policies, extracurricular activities, the availability of equitable
facilities, and the distribution of resources. This past year, we
initiated the largest number of case reviews in any given year, 44. In
a number of these (17), we identified a need for further relief. All
told, the Division in FY 2004 obtained additional relief in 23 cases
through a combination of litigation, consent decrees, and out of court
settlements.
Of the Division's active desegregation matters, the most visible
this past year was the new consent order secured in United States v.
Chicago Board of Education, which addressed the school district's
failure to comply with an earlier agreement. The comprehensive decree
addressed a variety of subjects in the third largest school district in
the country, which enrolls over 440,000 students in 600 schools. Among
the areas addressed are student and faculty assignment, and remedial
educational programs and funding. As a result of this agreement--and
our vigorous enforcement of it--minority students were given the choice
to transfer to better performing schools. One student who took
advantage of this option told the Chicago Tribune the difference it
made in his life. At his old school, he said, ``kids walk up to you and
say, `What's up? Give me your money,''' at his new school they say,
``Hi, Terrance. How are you doing?'' The consent decree also addresses
the district's failure to appropriately fund certain majority-minority
schools, and to provide appropriate services to English Language
Learners.
Another notable lawsuit we brought last year involved Lafayette
High School in Brooklyn, New York. We alleged that school officials
were deliberately indifferent to the repeated and systematic harassment
of Asian students. Several Asian students had been violently assaulted
and abused by fellow students shouting anti-Asian racial slurs. Some
examples of the harassment included Asian students who were subjected
to daily verbal and physical harassment in the hallways, stairwells and
classrooms of the schools. Other students regularly threw food, cans
and even metal combination locks at Asian students in the school
cafeteria. We were able to resolve the lawsuit through a consent
decree, which was approved by the court. This was the Division's first
ever harassment case filed under Title IV--and the first Title IV case
filed since 1990.
Our work in Hearn v. Muskogee School District also drew national
attention. There we helped Nashala Hearn, a young Muslim girl, who was
denied the right to wear a religious headscarf--a ``hijab''--to class.
Rather than embrace the opportunity to educate children regarding other
cultures and religions, school officials expressed concern that
children would fear the hijab, and thus suspended Nashala until she
removed it. We negotiated a consent decree that permitted Nashala to
wear the hijab and modified the district's policy with respect to the
dress code as it relates to possible discrimination on the basis of
religion. After we prevailed, this brave young girl traveled to
Washington where she testified before the Senate Judiciary Committee.
``My friends can wear their crosses to school,'' she told the
Committee. ``Why can't I wear my hijab?'' A good question indeed.
limited english proficiency
While I mentioned earlier the Division's efforts for those who are
limited-English proficient in the areas of voting and education,
language access is equally important in other areas.
As you may know, on June 16, 2002, the Department of Justice
published in the Federal Register an LEP Guidance Document for
recipients of federal financial assistance. Executive Order 13166
requires that all federal funding agencies use the Department's
document as a model in drafting and publishing guidance documents for
their recipients, following approval by the Department. To date,
seventeen agencies have published approved documents.
The Guidance explains that while most individuals living in the
United States read, write, speak and understand English, there are many
individuals, however, for whom English is not their primary language.
Based on the 2000 census, over 26 million individuals speak Spanish and
almost 7 million individuals speak an Asian or Pacific Island language
at home. For these individuals, language assistance is essential.
Language for LEP individuals can be a barrier to accessing important
benefits or services, understanding and exercising important rights,
complying with applicable responsibilities, or understanding other
information provided by Federally funded programs and activities. In
certain circumstances, failure to ensure that LEP persons can
effectively participate in or benefit from Federally assisted programs
and activities may violate the prohibition under Title VI of the Civil
Rights Act of 1964 and Title VI regulations against national origin
discrimination.
This administration is committed to improving the accessibility of
these programs and activities to eligible LEP persons, a goal that
reinforces its equally important commitment to promoting programs and
activities designed to help individuals learn English. As part of
President Bush's Firstgov En Espanol initiative, the Civil Rights
Division has established a Spanish language site. During a two week
period, nearly 5 percent of visits to our website homepage were to our
Spanish language homepage--a very significant percentage. As we go
forward, our focus in this area has turned to training federal grant
recipients so they will be able to provide language assistance for
individuals who need access services.
This year, the Department held the first ever federal LEP
Conference, and unveiled three major resources in conjunction with that
conference. Individuals from all over the country discussed the
importance of, and innovative strategies to ensure, language access.
Almost 200 representatives from recipient organizations, federal
government agencies, various community groups, and the fields of
interpretation and translation attended. Panelists throughout the day
made presentations about their innovative programs and practices, many
of which were featured in the resource document issued that day. A
videotape of the event is being edited so that the information can be
distributed beyond the participants.
During the conference, we released an important LEP resource
document entitled ``Executive Order 13166 Limited English Proficiency
Resource Document: Tips and Tools from the Field.'' This document
provides lessons from the experiences of law enforcement, 911 centers,
domestic violence providers, courts, and DOJ components on meaningful
access. Although geared to these entities, the general section of the
document contains useful tips and tools for any entity trying to
provide language access. We developed the document over many months of
research to gather useful practices from throughout the country. It is
now available on the LEP website, www.lep.gov.
special litigation: civil rights of institutionalized persons
Many of the Division's statutes focus on protecting the most
vulnerable in society. This is certainly the case with the Division's
enforcement responsibilities under the Civil Rights of
Institutionalized Persons Act (``CRIPA''). CRIPA authorizes the
Attorney General to investigate patterns or practices of violations of
the federally protected rights of individuals in state-owned or -
operated institutions. These include nursing homes, mental health
facilities, and juvenile correctional facilities. The Division's
investigations and prosecutions continue to uncover manifest abuse and
appalling conditions, and to successfully arrive at solutions.
FY2004 saw substantial successes protecting the rights of
institutional residents. We authorized 14 new CRIPA investigations, and
entered into 15 CRIPA agreements, the most agreements ever in a single
year. We released 11 findings letters, and, we remained active in
ongoing CRIPA matters and cases involving over 164 facilities in 34
States, as well as the Commonwealths of Puerto Rico and the Northern
Mariana Islands, and the Territories of Guam and the Virgin Islands. We
are continuing investigations of 56 facilities, and are monitoring the
implementation of consent decrees, settlement agreements, memoranda of
understanding, and court orders involving 105 facilities. Last year,
these investigations included 121 tours of facilities to evaluate
conditions and monitor compliance.
I want to highlight three cases for the Committee. We filed and
resolved a complaint in United States v. Louisiana regarding the
Hammond and Pinecrest Developmental Centers. The consent order entered
in that case resolved an investigation into the conditions of
confinement at the two facilities. That investigation revealed that
staff members at one of the facilities had been arrested for abuse,
including kicking a resident, dragging him to his room, placing a
blanket over his head, and hitting him. At the other facility, staff
members had left residents alone for sufficiently long periods of time
that when the residents were eventually found they were soiled with
drool, vomit, or urine. This matter has also been referred to our
Criminal Section for review.
The Division also filed a complaint and a consent decree in United
States v. Breathitt County, Kentucky (E.D. Ky.), resolving an
investigation of the Nim Henson Geriatric Center. The Division's
investigation suggested unconstitutional conditions including the use
of inappropriate medications for an elderly population, unnecessary
medical interventions such as feeding tubes, and residents with
untreated bedsores. The consent decree contains remedial measures
addressing these and all of the Division's other findings of
unconstitutional conditions at Nim Henson.
Third, on September 15, 2004, the Division filed in federal court a
comprehensive agreement with the State of Arizona to remedy egregious
conditions at three Arizona juvenile justice facilities. As identified
in the Division's findings letter, these conditions included three
juvenile suicides by hanging at one of the schools in a single year. In
one suicide, staff lacked the appropriate tool to cut the noose from a
victim's neck and also did not have oxygen in the tank they brought to
help resuscitate him. The Division also found that staff sexually and
physically abused youth.
Additionally, last year I reported that the Division had just filed
a contested lawsuit against the State of Mississippi over the
conditions of confinement at several of the state's juvenile
confinement facilities. Our findings letters details acts, which should
not take place in juvenile facilities. We found that staff engaging in
hogtying of juveniles, binding their hands together and their feet
together and then binding all four extremities together. We found that
staff at the facilities placed suicidal girls naked into a ``dark
room'' with only a hole in the floor for a toilet for extended periods
of time. We found that children who became ill during physical exercise
were made to eat their vomit. And, we found deficiencies in mental
health and medical care, juvenile justice management, and regular and
special education services. This litigation, referred to us by
Congressman Benny Thompson, marked the first time in many years that
the Division filed a contested lawsuit seeking to remedy such
unconstitutional conditions. Our suit is active, and we are working to
resolve the matter.
We have now filed a second contested lawsuit in this context. In
June of 2004, we filed suit against Terrell County, Georgia over
conditions of confinement at its jail, after we found that the jail
routinely and systemically deprived inmates of constitutional rights.
We identified considerable evidence in support of these allegations,
including a lack of mental health care for inmates with clear symptoms
of mental illness, such as a detainee who was left unsupervised despite
being on ``suicide watch'' and who hanged himself with his jail-issued
sheet in August 2003.
As you can see, this work is among the Division's most important,
and truly changes the lives of those it affects. We will continue these
efforts during 2005.
special litigation: promoting constitutional law enforcement
In addition to CRIPA, our Special Litigation Section is charged
with implementing Section 14141 of the 1994 Violent Crime and Law
Enforcement Act. Section 14141 authorizes the Division to investigate
patterns or practices of violations of federally protected rights by
law enforcement officers. Since 2001, the Division has successfully
resolved 14 such matters, as compared with only 4 resolved over the
prior 4 years. Our efforts continue, as the Division presently has 12
ongoing investigations, 4 of which were newly opened during 2004.
When I appeared before the Committee last year I explained the new
approach we have crafted to such cases. Rather than adopting a purely
litigation-driven enforcement model, our experience demonstrates that a
cooperative model produces much better and faster results. Accordingly,
rather than husband findings of potential violations for use in court,
we work hard to keep target agencies informed of our findings and
progress, so that they can begin to develop and implement effective
solutions. Local police agencies are fully the Division's partner in
developing constitutional norms for policing. By including them in the
process, local agencies are more likely to ``buy in'' to the solution,
making lasting change more likely.
An example of our success last year in our police misconduct civil
investigation program is the execution of a settlement agreement and a
consent decree with Prince George's County, Maryland and the Prince
George's County Police Department requiring major reforms regarding the
use of force and use of canines. These agreements resolved an
investigation that had been ongoing for 5 years. While these
investigations were ongoing, the Police Department paid nearly ten
million dollars in police misconduct settlements, court judgments, and
jury verdicts from fiscal year 2001 through 2003. I am also pleased to
report that both the Fraternal Order of Police and involved community
groups welcomed this amicable resolution.
We also continued to enforce existing agreements. In an effort to
jump-start the Detroit Police Department's compliance efforts, we
provided the city last summer detailed on-site technical assistance
from our police practices experts at no cost. Subsequently, in the face
of non-compliance with two consent decrees by the Detroit Police
Department, we filed a pleading with the Court.
During 2004 we also continued our commitment to provide technical
assistance to law enforcement agencies under investigation. We provided
the Bakersfield, California Police Department with a detailed 20-page
technical assistance letter providing recommendations regarding, inter
alia, the use of force and investigation of allegations of misconduct.
We also agreed to provide ongoing technical assistance regarding uses
of force and use of force investigations to the police department in
Portland, Maine as part of the resolution of the investigation of that
department and made our police practices expert available to the
department for that purpose.
The Division is carefully monitoring the Cincinnati Police
Department's compliance with the Memorandum of Understanding we
negotiated with the City in April 2002. This Agreement has at times
followed an occasionally bumpy road. Nevertheless, we are hopeful and
confident that the Cincinnati Police Department will continue to
correct its prior deficiencies, and that the community will continue to
develop a greater appreciation for the overwhelmingly fine men and
women serving in that Department.
We are also actively engaged with other federal offices and the
police communities in identifying and understanding emerging issues in
policing. One such issue is the use of so-called ``less-than-lethal''
force, such as the taser device. It is important that such equipment be
understood and used properly. It is equally important that police
officers have access to a range of force options, rather than face the
binary choice of fists or firearms. Accordingly, this spring we will be
assisting the Office of Justice Programs in hosting a conference on
less-than-lethal uses of force.
As I noted earlier, I have particular respect for the difficult
task performed by Police Departments around the country each and every
day. To the extent that the Division can both assist further their
mission and promote Constitutional policing, we are performing a
valuable task.
conclusion
In closing, I hope my statement today makes clear the scope and
breadth of what falls within the jurisdiction of civil rights
protection. I hope too that my statement reflects the outstanding work
of the men and women of the Division. These accomplishments should
also, however, remind us of a larger truth.
I recently attended a special preview of a History Channel
documentary entitled ``Voices of Civil Rights,'' hosted by the
Smithsonian Museum of American History. This program recorded the oral
histories of those who experienced first hand the Civil Rights
struggles of the 1950s and 1960s. Many of these stories were
challenging. They recorded from all perspectives the anger of those
days.
One story, however, particularly struck me. It was the story of an
African American woman who had been a nurse in a segregated hospital--
separate floors, two races, no mixing. On the day the hospital
desegregated, she was sent to the formerly white floor to treat, for
the first time, a white woman, who had undergone surgery that very
morning.
As she approached, the patient's husband stepped forward. ``Don't
you lay a finger on my wife,'' he said. Loyal to her profession, the
nurse began to tend the patient. At this, the husband reacted
violently. ``Get your n----r fingers off my wife,'' he yelled. He
picked up the nurse, carried her from the room, and hurled her down the
hallway. Then, he unplugged his wife from the medical equipment, placed
her in a wheelchair, and took her home.
A week later, the nurse was on duty when the man returned to the
hospital. She feared a continued confrontation. Rather, in a defeated
voice, he said simply: ``I had no right to lay my hands on you. If I
had not done what I did, I would still have a wife to care for my
children.''
It is difficult to imagine such blindly self-destructive behavior
today. It would also, however, be naive to believe that in a mere 40
years--a single generation--the impulses that drove it have disappeared
entirely from our society. While racism may not take all of the same
stark forms as it once did, and while the tools to fight it must adapt,
it nevertheless persists.
Our efforts this past year stand testament to that fact, and to the
efforts of those committed to improving America for all Americans.
Thank you, and I look forward to answering any questions that
members of the Committee may have.
Mr. Chabot. The members of the panel now will have five
minutes to ask questions. I recognize myself for 5 minutes for
that purpose.
The Civil Rights Division is involved in efforts to address
allegations of misconduct against police departments. In some
cases, it's done with consent decree. In other cases, it's a
memorandum of understanding. In the case of the city that I
represent, Cincinnati, there is a memorandum of understanding,
as you well now.
Now, how does the Division determine whether the parties
are in compliance? For example, the City of Cincinnati has been
determined by the monitor to be in compliance in several areas,
such as implementation of the mental health response team, foot
pursuits and use of force policies, which include tazer and
chemical spray, canine and beanbag shotgun, and pepper ball.
Are there concrete measures from which the police department
can determine whether they're still making progress, and what
comments would you have in that area?
Mr. Acosta. Certainly, Mr. Chairman. Let me say that our
approach to police cases has been very successful because we
focus on fixing the problems, not fixing the blame. The
hallmark of our approach is communication and cooperation where
possible where cities, as is the case in Cincinnati, are
looking to make progress to address issues. And in fact, I
think it should be acknowledged that Cincinnati has made
considerable progress in implementing the MOU's substantive
changes.
The memorandum of understanding, or MOU itself, sets forth
a lot of the requirements that the city has to achieve in order
to be in compliance, and so the way we determine these is very
much on a case-by-case basis based on the city, on the city's
particular needs, on the situations of the city, on the degree
to which the city is getting ahead of the curve and coming into
compliance on its own.
One very important issue with respect to compliance are the
provisions that we have in all our agreements and in all our
consent orders requiring cities and police departments to
provide us with documents, because certainly we are hopeful
that jurisdictions come into compliance. We know that
jurisdictions do make progress. But we have a duty and
obligation to substantiate that by reviewing documents
ourselves.
So I guess I would summarize by saying Cincinnati has made
considerable progress and we hope that that is documented so
that we can look at those documents and, in fact, judge for
ourselves that we have compliance in each of the areas.
Mr. Chabot. Thank you very much. Let me shift gears, same
State, but just the overall area. A great deal of press has
been generated about the alleged flaws about the voting process
in my State, in Ohio, and in other areas, as well, but the
principal focus really has been on Ohio. Your testimony doesn't
reference Ohio or identify Ohio as a problem jurisdiction prior
to or subsequent to the election. Would you explain why that
is?
Mr. Acosta. Certainly, Mr. Chairman. I think it's important
to recognize that this election, while we're certainly looking
into some matters, in this election, we had a record turnout.
Turnout increased by 17 million voters nationally. The turnout
rate was almost 61 percent, the highest since 1968. In Ohio,
for example, the turnout was the largest in the State's
history. The turnout rate was 71, almost 72 percent of
registered voters.
If you look at changes that have been implemented since
2000, for example, under HAVA, the EAC distributed $2.2 billion
to improve the voting process. As a result, about 25 percent of
voters nationally voted on new machines. According to one
study, that has resulted in a million additional votes that can
be attributed to those new machines. The residual vote rate, in
other words, the number of uncounted votes, has fallen
dramatically, from 1.9 percent in 2000 to 1.1 percent in 2004.
With respect to provisional ballots this year, one million
new provision ballots were cast and counted. Seventeen States
used provisional ballots for the first time.
So in sum, I would say that across the nation and in Ohio,
more people voted using better voting machines and having their
votes count. The point, and a point that I think should not go
unnoticed, is while we're certainly looking at certain matters,
we saw improvements across the board in the administration of
the election throughout the nation as well as in Ohio.
Mr. Chabot. Thank you. My time is about ready to expire.
Let me just ask one final question. Do you expect that the
priorities of the Civil Rights Division would change under the
watch of Attorney General Gonzales from those of Attorney
General Ashcroft, and if so, in what ways?
Mr. Acosta. Mr. Chairman, our job is to enforce the law.
Attorney General Ashcroft took civil rights very seriously and
I know Attorney General Gonzales does, as well.
Mr. Chabot. Thank you. I thought you might answer in that
way, but I wasn't sure, so thank you very much.
Mr. Scott, you are recognized for 5 minutes.
Mr. Scott. Thank you. Mr. Acosta, I was a cosponsor of the
bipartisan Prison Rape Elimination Act. Do you intend to fully
operate with the Prison Rape Commission in the conduct of its
work?
Mr. Acosta. Absolutely, Mr. Scott. As a matter of fact, I
have already spoken with the Executive Director of the
Commission and we've already talked about establishing a
cooperative relationship.
Mr. Scott. Thank you. I'm also a cosponsor of a bipartisan
draft bill to address domestic sex trafficking through a focus
on demand reduction, that is, a focus on enforcement against
Johns and have more treatment for prostitutes as victims,
providing services and assistance. Are you familiar with that
draft bill being circulated?
Mr. Acosta. I am not familiar with the draft bill, Mr.
Scott.
Mr. Scott. Do you believe that some engaged in prostitution
should be treated as victims eligible for services and
assistance?
Mr. Acosta. Mr. Scott, this is a very important issue. The
Civil Rights Division has prosecuted a record number of
trafficking cases and the prosecution is not the only thing
that is important. A victim-centered approach that we apply is
critical. We have rescued, I believe as of last I checked, 683
victims from human trafficking, and they are victims and they
should be treated as victims.
Some have said that if you treat victims of trafficking as
victims, that you encourage additional trafficking because it
is possible that some individuals may want to get the benefits,
the immigration benefits or the other benefits that come from
that. We feel very strongly that victims are victims. They need
to be treated as victims and they have, whether it is health
care or immigration concerns, we need to rescue them and to
help them rebuild their lives.
Mr. Scott. Thank you. The Help America Vote Act provides
for disabled voters one accessible voting booth per precinct
where disabled voters can vote with a secret ballot. The
deadline for that is about 9 months from now. What are you
doing, what is your Department doing to make sure that we meet
that deadline?
Mr. Acosta. Congressman, this is a very important issue.
I'll tell you what we have already done. For the first time
ever in this election, we trained our monitors in accessibility
issues for voting pursuant to the ADA. We issued a document to
local officials detailing accessibility requirements, which
also has a helpful sort of last minute fix-it sheet of actions
that they can take to ensure accessibility in polling places.
With respect to the 2006 HAVA deadlines, we are in the
process of surveying the States as we did going up to 2004 to
ensure that all the States comply fully with the accessibility
requirements of HAVA in 2006.
Mr. Scott. And that is not just getting to the polling
place, into the polling place, it is also being able to cast a
ballot in secret.
Mr. Acosta. That is getting to the polling place and it is
being able to cast a ballot in machines that are consistent
with the requirements of the Help America Vote Act's
accessibility requirements.
Mr. Scott. There were complaints in some States,
particularly Ohio, that some people had to wait up to 10 hours
in order to vote. If it were to be determined that an
insufficient number of voting machines were put in precincts
that created this backlog, would that be something that your
Division would be interested in?
Mr. Acosta. Congressman, we would certainly enforce the
Federal election laws that would--if it were determined that
the number of election machines or the distribution was placed
in a racially discriminatory manner.
Mr. Scott. Have you looked into that in Ohio?
Mr. Acosta. We are looking into several matters in Ohio,
including that matter, as well as throughout the nation more
generally.
Mr. Scott. We mentioned the new Attorney General. One of
the issues that came up in his hearing was torture. What is the
Civil Rights position on people being tortured or people being
transferred to another country that will do the torture on our
behalf?
Mr. Acosta. Congressman Scott, the President and the
Attorney General have made clear and I will make clear that the
Department of Justice does not tolerate torture. We do not
tolerate abuse. That has been enunciated many times, and I will
say that once again. We do not tolerate torture.
Mr. Scott. This Subcommittee had a hearing in Cincinnati
recently involving black farmers. They're in litigation and
there is a suggestion that since most of the people that filed
for relief under the Pickford case were not able to get their
cases heard on the merits because of a deadline that was
missed, the suggestion is that that deadline should be waived.
The Civil Rights Division of the Agriculture Department said
they couldn't take a position on that waiver to allow people to
have their cases heard on the merits because some other agency
in Government was going to make that decision. Has the Civil
Rights Division of the Justice Department been involved in that
discussion?
Mr. Chabot. The gentleman's time has expired, but you can
answer the question.
Mr. Acosta. Congressman, I have not discussed this matter
with the Department of Agriculture.
Mr. Chabot. Thank you. The gentleman's time has expired.
The gentleman from Iowa, Mr. King, is recognized for 5
minutes.
Mr. King. I thank the Chairman and appreciate the hearing
and appreciate your testimony, Mr. Acosta. As I listen to some
of the responses with regard to the HAVA Act, I would direct a
question to that and discussion about handicap accessible
voting.
We will be seeking to meet that 2006 deadline, and as I
understand it, it's likely to result in electronic voting
machines in every precinct that are compatible with earphones
and those type of add-ons that make it so that everyone can
have a secure vote. I want to make it clear that I support that
concept, but I would ask you if we could take--multiply this
out, now, with an electronic voting machine in every precinct
in America. I don't know how many precincts we have, but I know
it's a lot. These voting machines are voting machines that are
either wired in or just simply transferring the memory card to
the county voting process.
How would we, not having anything but an electronic record,
how would we conduct a recount in 2006 under these
circumstances, especially keeping in the consideration that
many of these precincts in America in the red zones in America
are low population, not very many voters in each one, expensive
for each precinct to provide that voting machine, and then
they're out in remote locations where that might be the only
voting machine in many of these precincts.
Mr. Acosta. Congressman, Congress in HAVA in the provisions
that go into effect in 2006, in addition to requiring
accessibility standards for voting machines, also provides for
a permanent record manual audit trail capacity.
Mr. King. And could you describe what that might be?
Mr. Acosta. The HAVA empowers the Election Assistance
Commission to determine precisely what that is, so this is the
EAC's decision. To my knowledge, they have not yet set
standards on that.
Mr. King. In fact, we may not at this point have the
vaguest idea what that might entail should we have compliance
by 2006 with electronic voting machines and no paper trail.
Mr. Acosta. Congressman, once again, the Election
Assistance Commission is empowered to set those standards. The
Department of Justice does not have authority to set those
standards.
Mr. King. And if those electronic voting machines were
placed in a racially discriminatory fashion, though, you would
have jurisdiction over that?
Mr. Acosta. That is correct, Congressman.
Mr. King. Let me move to another subject matter and that
would be Clinton's Executive Order 13166. I see by the nod of
your head you're familiar with that. I wonder if you could
inform the Committee today as to what kind of cost that might
have entailed at this point and how we could anticipate which
direction those costs might go in the future under that
Executive Order.
Mr. Acosta. Congressman, I do not know the cost assessment
for the Executive Order. I think it is important to acknowledge
up front that the Executive Order is an important order that
does provide for access to important Government services by
individuals who do not speak English, but that it also
acknowledges up front the importance of English language
acquisition, which is something that the Department of
Education works very closely and very hard on.
Mr. King. So would you have a sense as to whether those
costs are increasing or decreasing with regard to the
obligations imposed by Executive Order 13166?
Mr. Acosta. Congressman, it's difficult to say. One of the
economic realities is as something is used more, often, the
costs go down. So, for example, one of the large costs in this
Executive Order, obviously, this provides for translation
services so that if individuals, for example, go to an
emergency room, there is someone that can speak their language
in providing medical services.
Obviously, as more translation services are called for,
efficiencies can be created, efficiencies of scale,
efficiencies through language lines via telephone and others
that may decrease the cost of the service. And so it's
difficult to say with a moving target whether costs are
increasing or decreasing.
Mr. King. I thank the gentleman for his testimony and his
responses and I'd have no further questions. Thank you, Mr.
Chairman.
Mr. Chabot. Okay. Thank you very much.
The gentleman from Michigan, Mr. Conyers, the distinguished
Ranking Member of the overall Judiciary Committee, is
recognized for 5 minutes.
Mr. Conyers. Thank you, Mr. Chairman.
I want to begin by acknowledging that we have a number of
members of the FBI here for this hearing, some of them formerly
assigned to Detroit and some on the Committee, even, and we
welcome them to this hearing.
Now, as Assistant Attorney General, you have, to me, one of
the most important tasks of helping civil rights become the
finished business of America, because it's still the unfinished
business of America. You have a huge burden. I think most of us
on this Committee are here to help you. I've been with this
since the Voting Rights act of 1965 under--when Manny Seller
was the Chairman a number of years back.
Now, your presentation here is seriously different from the
warnings that I have been presented by my staff about problems
that we're having, and this is understandable. You didn't come
here to confess. This isn't a confessional. I mean, you've got
to put on the best presentation for your Division that you can,
and I don't blame you for that. But there are lots of problems,
because you were telling me the most this and the more cases
and more of everything. It would lead a lot of people to say,
well, we're in pretty good shape.
So I see a couple of challenges here. One, that we have an
Assistant Attorney General that is willing to confront the
issues, and I commend you for that, but there are a lot of
things that 5 minutes won't even begin to clear up. So I wanted
to, as I mentioned to you before we started, we've got to set
up some kind of channel of meeting, Mr. Chairman, because these
issues are way too complex to take in 5-minute bites during
this hearing.
But I also would like to ask if you would be willing to
meet with the leaders of the major civil rights organizations
in America who, in one sense, have the same responsibility that
you do, and I don't know--and I'm not presuming that you have
met or not met before, but it seems to me that that would be a
hugely important signal and an opportunity for us to vet
through some of these problems and I'd like to throw that out
for your reaction.
Mr. Acosta. Thank you, Congressman. You raised several
issues that I would like to take one at a time.
First, I am by no means here to confess. I'm very proud of
the work we have done. At times, I get a bit frustrated over
the fact that the work is not recognized, and I'll give you an
example. Over a year ago when I had a hearing in the sister
chamber across the way, a Member brought up the issue of
employment discrimination and I took that very seriously. I sat
down with my staff and I said, I want to see this move. I want
to make sure we are making every effort we can make. And, in
fact, last year, we brought more cases than we have brought
since the mid-1990's. We brought disparate impact cases. And
yet, much of that goes unrecognized. I attribute that to
perhaps a communications issue.
Last year, Mr. Scott raised the issue of arsons in houses
of worship. Following Mr. Scott's questions on that, I sat down
with the Bureau of Alcohol, Tobacco, and Firearms because I
wanted a briefing to know what was happening in his district
and in his State and nationally on that issue, and I have
continued sitting down with them as a result of Mr. Scott's
questions.
So I want to first acknowledge that we do take your
concerns very seriously and it is far from a finished work, as
I think my allusion to the ``Voices of Civil Rights'' story
made clear.
Let me say that I'm very willing to work with yourself or
with other Members. I sit down on a regular basis with leaders
of civil rights groups. Last year, for the first time that I'm
aware of, we invited leaders of civil rights groups to address
our attorneys during a training on election matters where we
invited Wade and Hillary and Karen Narasaki and others to come
in, Barbara, to come in and to address, to talk about their
concerns. I sit down with them regularly. I was in Selma just
this past week. I'm going to be at the National Asian Pacific
Bar Association dinner. I was the keynote speaker at their
dinner in Texas this past year.
And so I'm a big believer in communications. I think it's
important to have open channels, and I think that the leaders
of civil rights organizations across the country would confirm
that.
Mr. Chabot. The gentleman's time has expired.
Mr. Conyers. I want to thank you for that reaction. We want
to expand these communications even further to this Committee,
and I presume that the civil rights community is satisfied with
their chain of communication with you and your Civil Rights
Division.
Mr. Chabot. Thank you very much, Mr. Conyers.
The gentleman from Florida, Mr. Feeney, is recognized for 5
minutes.
Mr. Feeney. Thank you, Mr. Chairman, and thank you, Mr.
Acosta. In the materials that you submitted along with your
statement, you referred to the enforcement of certain voting
rights, and obviously you've got responsibilities in what I
refer to as the pre-clearance counties. Is that both section 3
and section 6 identified counties?
Mr. Acosta. All counties identified by the Voting Rights
Act for pre-clearance.
Mr. Feeney. Could be generally referred to as pre-clearance
counties?
Mr. Acosta. Correct.
Mr. Feeney. But you have said that, not because of
statutory basis, but because of common practice, the Justice
Department increasingly is paying attention to illegal voting
activities occurring outside what I refer to as pre-clearance
counties. Is that right? And by what authority do you do that,
just out of interest?
Mr. Acosta. Certainly, Congressman. The President, the
Attorney General, the Department, and myself take voting rights
very seriously. They are the bedrock of our democracy. The
Voting Rights Act does give us specific jurisdiction and
authorization to send election observers to certain polling
places.
What we did this year, what we have done previously, but
what we did in record numbers this year is we certainly sent
election observers pursuant to the Voting Rights Act, but I
asked my own staff, in the number of hundreds, to go out as
election monitors. And what we do is we go into a jurisdiction
and we say, ``Would you mind if we watch?'' And the Voting
Rights Act does not tell us we can do that, but my staff can
certainly fly somewhere and say, ``Would you mind if we
watch?'' In several States, we had a presence this year where
we have not had, and that has several salutary effects.
First, having the Justice Department Civil Rights Division
present, I think helps deter election problems. And secondly,
to the extent that problems may arise, we have individuals
present who can report back----
Mr. Feeney. Well, if I can, because I've got a limited
amount of time, I appreciate the advantages, but it seems to me
that you don't have any specific statutory authority there if
you're asking for permission, and I guess I would ask you these
questions, because I think a lot of us would be interested in
beefing up enforcement activities.
Number one, is there anybody that has any authority outside
pre-clearance counties in voting other than your Department and
have they exercised that authority, to your knowledge?
Mr. Acosta. Congressman, not to my knowledge at the Federal
level, and therefore, they have not exercised it.
Mr. Feeney. Is it your opinion that somebody that
intentionally votes multiple times illegally is in violation of
Federal law, and have you prosecuted anybody for such activity?
Mr. Acosta. Congressman, certainly, they would be in
violation. With respect to prosecutions----
Mr. Feeney. Of Federal law or State law?
Mr. Acosta. They would be in violation of the law, if I
could. With respect to prosecutions of Federal law, there is a
bifurcation of responsibilities. The Civil Rights Division
enforces the Voting Rights Act and other acts regarding ballot
access. The Criminal Division, Public Integrity Section,
enforces violations of Federal criminal laws, violations of
voting fraud laws, and violations of other Federal election
laws.
Mr. Feeney. Is it a Federal crime to vote twice
intentionally, in two different places, for example?
Mr. Acosta. It is certainly a crime----
Mr. Feeney. Is it a Federal crime?
Mr. Acosta. I do not enforce the public integrity laws and
so I would defer to the Criminal Division.
Mr. Feeney. The Criminal Division. How about voting
illegally, somebody that is not a legal voter but intentionally
votes knowing full well that they are voting illegally?
Mr. Acosta. Congressman, again, if I could, my
jurisdiction----
Mr. Feeney. That would be the Criminal Division?
Mr. Acosta. That would be the Criminal Division.
Mr. Feeney. Do you know anything about whether they have
prosecuted either multiple voting or deliberate illegal voting?
Mr. Acosta. We have referred to them several matters of
which we became aware that involved vote tampering, for
example, and I would ask that--and I'm happy to take the
questions back to them----
Mr. Feeney. One more, because my time is running out. How
about organized mass protests in multiple areas, that in some
areas result in trespass, assault, and battery? Would that be a
violation of Federal law and would that be the Criminal
Department, as well?
Mr. Acosta. Again, that would be the Criminal Division and
I would defer to them on an answer.
Mr. Feeney. Thank you. I yield back, Mr. Chairman.
Mr. Chabot. The gentleman yields back. The gentleman's time
has expired.
The gentleman from North Carolina, Mr. Watt, is recognized
for 5 minutes.
Mr. Watt. Thank you, Mr. Chairman.
Mr. Acosta, you may be aware that in addition to being a
Member of this Subcommittee and the Judiciary Committee, I am
currently the chair of the Congressional Black Caucus. I assume
you read in the paper that I, along with 40 other members of
the Caucus, met with the President and delivered to him an
agenda on January 26. In fact, we delivered seven copies of it
to him so it would expedite his delivery of it to Department
heads.
One of the areas addressed in that agenda is disparities
that exist in the Justice area. I would simply ask whether you
are aware of whether the President has delivered that agenda to
either the Attorney General or to the Civil Rights Division in
follow-up to our meeting with him.
Mr. Acosta. Congressman, I am certainly aware of the
agenda. I am aware that the meeting took place and of the
concerns, and it would be inappropriate for me to speak for the
Attorney General, but I would assume that he is sensitive to
these concerns, as well.
Mr. Watt. Okay. Well, in the event he has not, I'm going to
ask unanimous consent to submit for the record a copy of the
Congressional Black Caucus agenda, which I will also deliver
personally to you at the end of the hearing.
Mr. Chabot. Without objection, so ordered.
[The information referred to is available in the Appendix.]
Mr. Watt. On June 23, 2004, Mr. Conyers, along with other
Members of this Judiciary Committee, sent to you, or sent to
Attorney General Ashcroft a letter regarding the Waffle House
alleged pattern and practice of discrimination in public
accommodations and we received a response from William E.
Moschella dated August 13, 2004, in which he made this
representation, that the Division is currently evaluating what,
if any, action may be appropriate pursuant to the Attorney
General's authority under title 2. Can you tell me what the
status of that is?
Mr. Acosta. Certainly, Congressman. The issue that is
raised--and I need to be a little careful in wording this--the
issue that is raised is whether----
Mr. Watt. I know what the issue is. I'm just trying to find
out what the status of the Department's investigation is.
Mr. Acosta. Congressman, the status is that I met recently
with several representatives of plaintiffs, who provided
information to us, I believe 2 weeks ago, perhaps 3 weeks ago--
no, 2 weeks ago, who provided information to us. We are
currently evaluating it and we will be making a determination
once we have completely reviewed that information.
Mr. Watt. Okay. Would you follow up with us when you move
along in that so we can monitor the status of it, please?
Mr. Acosta. I will certainly follow up when we take public
action.
Mr. Watt. All right. In follow-up to Mr. Conyers'
questions, there seems to be a substantial disparity not only
between what you have reported to this Subcommittee today and
Mr. Conyers' staff, what they have reported to him, but there
seems to be a substantial disparity between what you have
reported today and a non-partisan research center study done by
Syracuse University in 2003--actually, 2004. I am just going to
zip through some of those disparities and ask you in follow-up
to this hearing to respond to why there is such a dramatic
difference between what you have reported here in your
testimony and what this study suggests.
According to this, Federal prosecutors filed criminal
charges against 159 defendants for violations of civil rights
laws in 1999, and in 2003, only 84. During the same time
period, charges against terrorism suspects increased
dramatically and charges on weapons violations doubled. In
addition, Federal charges on immigration violations increased
more than 28 percent, according to this study. So maybe there
is some double-counting in that area.
In 2003, prosecutors filed formal charges in only 5 percent
of civil rights cases referred to them. By contrast, they chose
to pursue formal charges in 90 percent of referred immigration
cases. Civil rights complaints to the Government stayed steady,
but civil rights sanctions against civil rights violators
declined from 740 in 2001 to 576 in 2003. Civil rights cases
also dropped--prosecutions in civil rights cases dropped from
3,053 in 1999 to 1,903 in 2003. During that same period, of
course, terrorism prosecutions were up, but it seems, according
to this study, that the Department is devoting substantially
greater and greater resources to terrorism at the expense of
civil rights.
So since our time is up, I would just give you a copy of
this report and perhaps ask you to follow up in writing, and
maybe there is some logical explanation for the disparities
between the figures that you've given us and the figures that
Syracuse University--this is not our staff, this is an
independent body that says this.
Mr. Chabot. The gentleman's time has expired, but Mr.
Acosta, if you would like to address the question----
Mr. Acosta. Thank you, Mr. Chairman. I saw that report and
I was very upset when I saw it. I asked my staff to contact
Syracuse University to determine their methodology. I also
asked my staff to get me a list of all our cases going back. I
wanted the actual case names listed so I could count them.
Mr. Watt. You can provide that to us.
Mr. Acosta. Let me say, I'd be happy to provide that.
Mr. Watt. Okay.
Mr. Acosta. We have not heard back regarding their
methodology. They, as far as I understand, had taken
information from multiple sources, put it in an algorithm, and
determined a final number. We went through, and I will happily
provide the case names because last year was a record year.
With respect to the percentage of charges, let me respond.
The number of investigations in the civil rights area that
result in prosecutions is a smaller percentage than other
areas, but that is a reflection of the fact that the Civil
Rights Division believes it is better to open an investigation
and even if there is not a lot there, then subsequently
determine not to charge. In other words, our erring on the side
of checking something out is responsible for the fact that the
percentage of investigations actually charged is lower in that
area, and I think that's a good thing.
Mr. Chabot. Thank you. The gentleman's time has expired.
The gentleman from Maryland, Mr. Van Hollen, is recognized,
and we also want to welcome you to the Committee. We are very
pleased to have you as a new Member.
Mr. Van Hollen. Thank you, Mr. Chairman. It's a privilege
to join you.
Mr. Acosta, thank you for your testimony. I had a few
questions related to the Justice Department's role in the
faith-based initiative in the White House, and let me just say
that I think all Americans agree that one of the founding
principles of this country was to make sure that individuals
had the right to religious liberty and to make their own
decisions regarding their faith without interference from the
Federal Government. And there's no argument about the very
important role faith-based organizations play probably in each
of the Congressional districts we live in around the country.
And there's no dispute, either, as to the fact that faith-
based organizations have received public funds and have done
great work with public funds in the area of job training, in
the area of Head Start, tsunami relief internationally,
Catholic Charities, Jewish Federation, a whole range of
Protestant groups, other groups around the country. So that's
not the issue.
The issue is when these organizations receive Federal
funds, taxpayer dollars paid by people of all different faiths
in this country, and they're using those funds for secular
purposes, because I think we would all agree you can't take
Federal dollars to promote a particular religion, so they're
taking these funds for a secular purpose, like job training.
Why you don't think that it is legally wrong or a violation of
the Establishment Clause of the Constitution to be able to take
those taxpayer dollars and then turn around and say it's a job
training program that's being offered and someone who has long
experience providing job training experience, has a great
education applies for the job, secular purpose using Federal
taxpayer dollars, why you think it's proper that that
organization should be able to say to that person, we're not
going to hire you, not because you're not qualified, not
because we don't think you've got the top person for the job,
but you just don't pass our private religious test. Could you
answer that for me, because I know the Justice Department has
taken a position in several cases.
Mr. Acosta. Congressman, certainly. You are, in essence,
alluding to much of what we do under faith-based programs, and
I'd start off by saying with respect to the legal question,
Congress itself in title 7 recognized that religious
organizations should have autonomy and should have the ability
to preserve their natural character. Congress, when it enacted
title 7 of the Civil Rights Act, under section 702, exempted
religious organizations, allowing them to use religion as a
criteria in hiring. So as a legal matter, Congress itself has
made the determination that----
Mr. Van Hollen. I know my time is short. If I could just
break in, you would agree, would you not, that that act, the
1964 Civil Rights Act, did not answer the question with respect
to the use of taxpayer dollars and how that affects whether or
not a religious institution has the right to discriminate based
on religion? You would agree with that, would you not, because
I can tell you, I've got the transcripts from the hearings back
then. Sam Irvin raised this point. It was very clear that what
he was worried about at that time was making sure that we
weren't saying as part of the 1964 act to the Catholic Church,
for example, that you've got to hire a non-Catholic for a
priest, or as a priest, I mean, or for those parts of your
mission which are religiously oriented. It doesn't speak at
all--in fact, it's very clear they weren't--he went out of his
way to say he was talking about situations that did not involve
taxpayer money.
So this has been discussed. So I just want to make sure I
understand from a legal point of view, is it your position that
that act itself contains within it the authorization to say to
a religious organization that receives public dollars that in
the use of those public dollars, you can discriminate based on
religion?
Mr. Acosta. Congressman, the act in title 7 says that a
religious organization can consider religion in hiring. That
organization is then authorized by law to apply for grants, and
so long as, for example, the Salvation Army is permitted to
apply for grants and if it competes for a grant, for example,
to run a soup kitchen or to provide housing or other social
services, and it provides those services without any religious
character, without any evangelizing, and it provides those
services to all individuals without account, taking into
account religion, there is no legal prohibition in the
Salvation Army competing on an equal and non-discriminatory
basis with every other organization to provide grants. And, in
fact, it might be able to provide those grants more
effectively.
Mr. Chabot. The gentleman's time has expired, but if he
would like to make a follow-up, a brief point here, he may.
Mr. Van Hollen. I thank you, Mr. Chairman. I appreciate
that. I don't think the question is whether they're allowed
equal opportunity to apply for grants. Of course, they are. Any
faith-based organization, whether it's a Catholic organization,
Jewish, or whatever, obviously has an equal right to apply for
Federal grants.
The issue at stake here, and Mr. Chairman, thank you for
the little additional time and I'll just end with this
statement--this issue is not whether they have an equal right
to apply for Federal funds. The question is whether it's right,
both from a moral perspective, from a legal perspective, or
just the right thing to do, to say to somebody who's been
paying taxes and applies to that job, in the case of the
Salvation Army, someone from the Jewish faith, to provide a job
training service or provide help in the soup kitchen, whether
the Salvation Army should be able to say to them, ``Sorry,
you're the wrong faith.''
Thank you, Mr. Chairman.
Mr. Chabot. Mr. Acosta, did you want to respond to that or
not?
Mr. Acosta. We could go on and on. I'll leave it at that.
Mr. Chabot. Very good. Thank you very much. Thank you.
The gentleman from Arizona is recognized for 5 minutes, Mr.
Franks.
Mr. Franks. Thank you, Mr. Chairman, and thank you, Mr.
Acosta. I appreciate your report here. There's a lot of very
encouraging elements of it. I was particularly impressed by
your efforts with regard to trafficking. It looks like you've
started about 19 different trafficking task forces, and as it
happens, one of them is in the Phoenix area, where I'm from. It
just looks like you're making a lot of progress in that regard,
especially the fact that it's become victim-focused and this
new T-visa that you have is pretty exciting.
Having said that, these trafficking people that are
essentially modern-day slaveholders, what are we doing at this
point to even further intensify our efforts in this regard and
do you have any things that you see as a matrix that you think
is really the heart of the problem and the way to address it?
Mr. Acosta. Thank you for the question, Congressman. You
raise a very important issue, an issue that I think is getting
more national attention, and as a result, we are getting more
cases.
We currently have 208 open investigations. By way of
comparison, in the year 2000, there were three cases brought
and charging five defendants, to give you an example of the
numbers. I'm very gratified by the progress we have seen, but I
think we need to recognize that it is only a start, that the
problem of trafficking is much larger.
I think going forward into the future, it's important that
we work with jurisdictions and we work with localities. That is
why following the President's attendance at our national
conference in Tampa, we started opening these task forces
around the country, because local police are the boots on the
ground that know where trafficking takes place. Local service
providers and faith-based organizations are important parts of
our effort in this because victims often don't speak the
language. They are scared. They are not going to come to us.
But they will go to a local faith-based organization. They will
go to a local service provider. And so we make sure that those
providers are always involved in the task forces.
Lastly, as part of the effort to emphasize the importance
of local enforcement, I think it's important to note that it's
important for States to have strong anti-trafficking laws.
Congress a few years ago took strong efforts to intensify our
trafficking laws through the Trafficking Victims Protection
Act. We have placed a model law in public circulation, a model
State law. We're not encouraging or discouraging States in any
appropriate way, but we just thought it would be useful to
further discussion, because the majority of States have not
updated their trafficking laws.
It's important to recognize that traffickers don't use
physical force often. They use fraud or psychological coercion
or threats of violence or document abuse, and it's important
for prosecutors to have those additional tools available when
we go to prosecute.
Mr. Franks. I think it's just an astonishing statistic to
go from three cases that are being investigated to 208. Did I
hear you correctly?
Mr. Acosta. Correct.
Mr. Franks. Do you attribute that to prevalence, to greater
focus, to kind of getting dialed in on what these people are
doing? What is--that's an amazing increase.
Mr. Acosta. Congressman, several factors. First, the
President has made this a top priority. He has spoken on the
issue several times before the United Nations. He attended our
national conference in Tampa. He has made this an issue for his
Administration.
Second, we are working much more closely with State and
local jurisdictions. It's very difficult from Washington to
find these cases. These task forces in cities like Phoenix and
in other cities really are the way to find these cases and we
need to decentralize the effort so that we can find these cases
much more.
Mr. Franks. I just appreciate your good efforts, sir, very
much. Thank you. Thank you, Mr. Chairman.
Mr. Chabot. Thank you. The gentleman yields back his time.
The gentleman from Virginia has requested, and we've
granted, he's going to ask a couple additional questions. He's
assured me he'll keep them relatively brief and you can keep
your responses succinct, if possible. Thank you.
Mr. Scott. Thank you. Mr. Acosta, are you familiar with the
Death in Custody Act?
Mr. Acosta. Congressman, I am not.
Mr. Scott. It requires any death in the custody of the
State that is during arrest, in prison, to be reported to the
Justice Department.
Mr. Acosta. Yes.
Mr. Scott. Okay. Are you doing anything with that
information?
Mr. Acosta. Congressman, a special litigation section
enforces a statute CRIPA, Civil Rights of Institutionalized
Persons Act. We review instances of problems in juvenile
facilities or in jails, and where there is a higher or where
there is an unacceptable degree of violence, then we do open
investigations. We opened 14 investigations under CRIPA last
year.
Mr. Scott. Are you looking for patterns and practices, how
you can try to--the purpose of it is to get a database so you
can see what's going wrong and looking for patterns. I mean,
I'd assume that if it had been done a few years ago, you'd find
that chokeholds would probably not be a good idea because
you're killing people, and you wouldn't get that information
without that database. I would ask you to review the data to
see if there's anything we ought to be doing legislatively as a
result of this information that we didn't have before.
Second question is, under the pre-clearance provision,
there's some requests that are pre-cleared that some of us
found, frankly, disagreed with. The letter of submission is
just a terse statement that you reviewed it and approve it. Who
would we contact to get the staff memos so we would find what
the analysis actually was?
Mr. Acosta. Congressman, as you're aware, whatever
deliberations take place at the Department of Justice are
internal and are privileged attorney communication.
Mr. Scott. Okay. But you don't have to make it privileged.
I mean, you can release it if you want.
Mr. Acosta. Congressman, the Department of Justice for
decades has exerted deliberative and attorney privilege with
respect to internal attorney-to-attorney discussions.
Mr. Scott. The third question is a follow-up to the
gentleman from Maryland, Mr. Van Hollen, on whether or not a
religious organization has the statutory right to discriminate
based on religion, and you kind of went back and forth on that.
Under the Clinton administration, the interpretation was that a
religious organization couldn't get direct funding, so the
issue would never come up.
The Cleveland voucher case went to great lengths to point
out that it wasn't the State making the decision as to which
school got the money, it was the parent. That discussion would
be bizarre if the State could have written a check straight to
the parochial school. I think there's an understanding that you
cannot directly fund a pervasively sectarian organization.
Is it your contention that the Federal Government can
contract directly with a church, directly fund a church and
contract with that church for the provision of Government
services?
Mr. Acosta. Congressman, first, let me say I don't think I
went back and forth. I think I made clear that there was no--
responding to the question that there was no legal prohibition.
And, in fact, Executive Order 13279 makes clear that except as
otherwise----
Mr. Scott. Is that President Bush's Executive Order?
Mr. Acosta. Yes, it is----
Mr. Scott. It's not President Johnson's Executive Order.
Mr. Acosta. It is the Executive Order in effect. It's the
Executive Order that has been signed by a President. It makes
clear that it's perfectly appropriate for organizations to
apply on an equal basis, on a nondiscriminatory basis, for
distribution of Federal funds so long as--or for Federal grants
so long as they do not, one, inject religion into their
programs or services, and two, do not discriminate in the
provision of programs and services to recipients.
Mr. Scott. Well, I think you're aware that you can never
waive the Establishment Clause with an Executive Order. Are you
saying that the Establishment Clause allows or does not allow
direct funding of a pervasively sectarian organization like a
church? Can the Federal Government contract directly with a
church for the provision of Government services?
Mr. Acosta. Congressman, the Establishment Clause does not
prohibit an organization like the Salvation Army or a similar
religious group from providing services pursuant to a
Government grant so long as it does so without injecting
religion into the provision of services and so long as it does
so on a non-discriminatory manner in the selection of
recipients of those funds.
Mr. Scott. That means, yes, you can directly fund a
pervasively sectarian organization?
Mr. Acosta. That means that organizations can receive
Federal grants----
Mr. Scott. Okay. Now just one other kind of question. If
the religion is intertwined in the services, like a prison
program where you have to--where there's a Christian prison
program, would that qualify for direct funding?
Mr. Acosta. Congressman, I would certainly want to look at
the degree of intertwining, the nature of the program, the
extent to which religion is part of that program, and that is
something we'd have to look at.
Mr. Chabot. The gentleman's time has expired.
Mr. Watt, did you want to----
Mr. Watt. I just wanted to make a couple of unanimous
consent requests.
Mr. Chabot. Okay. Without objection, you're recognized.
Mr. Watt. I ask unanimous consent, just to complete the
record, that a letter from Members of this Committee to John
Ashcroft dated June 23, 2004, and the response from Assistant
Attorney General Moschella dated August 13, 2004, related to
the Waffle House case be made a part of the record so that
everybody would know what I was asking about.
Mr. Chabot. Without objection, so ordered. Those are
entered into the record.
[The information referred is available in the Appendix.]
Mr. Watt. And I think I already got unanimous consent to
put the agenda in, didn't I?
Mr. Chabot. I believe that is correct, but if not, it's
entered at this time, as well.
Mr. Watt. Thank you.
Mr. Chabot. Okay.
Mr. Scott. Mr. Chairman?
Mr. Chabot. Yes, Mr. Scott?
Mr. Scott. Mr. Chairman, I'd ask unanimous consent that all
Members have five legislative days to revise and extend their
remarks, include additional materials in the record, and to
submit to the witness additional questions in writing for
written response.
Mr. Chabot. Without objection, so ordered.
Mr. Watt. And can I just be clear, Mr. Chairman, that we're
going to get some follow-up on the questions that we asked
about?
Mr. Chabot. Yes, and Mr. Acosta has just indicated in the
affirmative.
Mr. Acosta, we want to thank you for your testimony here
this morning. There's nothing that this Committee has
jurisdiction over or deals with that's more important than
making sure that the civil rights laws in this country are
enforced to the letter. And I want to commend you for your, I
believe, very candid testimony here this morning. You have
always been very open with the Committee and we appreciate that
very much.
If there is no further business to come before the
Committee, we are adjourned. Thank you.
[Whereupon, at 11:32 a.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Congressional Black Caucus Agenda for the 109th Congress, submitted by
the Honorable Melvin Watt, a Representative in Congress from the State
of North Carolina, and Member, Subcommittee on the Constitution
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Letter from Members of the Committee on the Judiciary, dated June 23,
2004, to the Honorable John Ashcroft, Attorney General of the United
States, U.S. Department of Justice, and response, dated August 13, 2004
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Response to post-hearing questions from R. Alexander Acosta, Assistant
Attorney General, Civil Rights Division, U.S. Department of Justice
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