[DOCID: f:sr147.107]
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Calendar No. 103
107th Congress Report
SENATE
2d Session 107-147
======================================================================
THE LOCAL LAW ENFORCEMENT ENHANCEMENT ACT OF 2001
_______
May 9, 2002.--Ordered to be printed
_______
Mr. Leahy, from the Committee on the Judiciary, submitted the following
R E P O R T
together with
MINORITY VIEWS
[Including cost estimate of the Congressional Budget Office]
[To accompany S. 625]
The Committee on the Judiciary, to which was referred the
bill (S. 625) to provide Federal assistance to States and local
jurisdictions to prosecute hate crimes, and for other purposes,
having considered the same, reports favorably thereon and
recommends that the bill do pass.
CONTENTS
Page
I. Purpose..........................................................2
II. Pre-existing law and the need for expanded jurisdiction..........3
III. The Local Law Enforcement Enhancement Act of 2001................8
IV. Federalization..................................................10
V. Constitutional basis............................................14
VI. Not all crimes are hate crimes..................................24
VII. Examples of violent hate crimes not covered by existing law.....26
VIII.Conclusion......................................................31
IX. Cost estimate...................................................31
X. Regulatory impact statement.....................................33
XI. Minority view of Senator Hatch..................................34
XII. Changes in existing law.........................................41
I. Purpose
Although America experienced a significant drop in violent
crime during the 1990's, the number of reported hate crimes has
grown by almost 90 percent over the past decade. From 19912000,
according to FBI statistics, there were over 73,000 reported
hate crimes in the United States.\1\ That equals an average of
20 hate crimes per day for 10 years straight.
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\1\ Reported hate crimes incidents by year: 1991 (4,558); 1992
(6,623); 1993 (7,587); 1994 (5,932); 1995 (7,947); 1996 (8,759); 1997
(8,049); 1998 (7,755); 1999 (7,876); 2000 (8,063).
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Recent hate-motivated killings in Virginia, Texas, Wyoming,
California, Illinois, and Indiana have demonstrated the
destructive and devastating impact the crimes have on
individual victims and entire communities. Since September 11,
2001, the Department of Justice has been involved in
investigating over 350 incidents of potential hate-motivated
violence against Arab-Americans, Muslims, and Sikhs. However,
to date the Department has only brought hate crime indictments
in 3 cases. Too often and for too long, the Federal Government
has been forced to stand on the sidelines in the fight against
these senseless acts of hate and violence because of the limits
in existing law.
Senate bill 625, the Local Law Enforcement Enhancement Act
of 2001 (``Hate Crimes Act'') is intended to address two
serious deficiencies in the principal Federal hate crimes
statute, 18 U.S.C. 245. Enacted in 1968, the existing Federal
statute prohibits a limited set of hate crimes committed on the
basis of race, color, religion, or national origin. The two
deficiencies are as follows: (1) the existing statute requires
the Government not only to prove that the defendant committed
an offense because of the victim's race, color, religion, or
national origin, but also because of the victim's participation
in one of six narrowly defined, ``federally protected
activities;'' and (2) the existing statute provides no coverage
whatsoever for violent hate crimes committed because of bias
based on the victim's sexual orientation, gender, or
disability. Together, these deficiencies limit the Federal
Government's ability to work with State and local law
enforcement agencies in the investigation and prosecution of
many of the most heinous hate crimes. In some cases, the
deficiencies entirely preclude the vindication of the Federal
interest in fighting bias-motivated violence.
The hate crimes bill amends title 18 of the United States
Code and creates a new section 249 to address the
jurisdictional limitations under existing law. In particular,
section 249 establishes two criminal prohibitions entitled
``hate crime acts.'' In cases involving racial, religious, or
ethnic violence, the new section 249(a)(1) prohibits the
intentional infliction of bodily injury without regard to the
victim's participation in one of the six specifically
enumerated ``federally protected activities.'' In cases
involving violent crimes motivated by hatred based on the
victim's actual or perceived sexual orientation, gender, or
disability, the new section 249(a)(2) prohibits the intentional
infliction of bodily injury whenever the incident has a nexus,
as defined in the bill, to interstate commerce. The reasons for
the discrepancy between (a)(1) and (a)(2) are discussed in part
IV of the report. These amendments to title 18 of the U.S. Code
will permit the Federal Government to work in partnership with
State and local officials in the investigation and prosecution
of cases that implicate the significant Federal interest in
eradicating hate-based violence.
It is important to emphasize Congress' expectation that
State and local law enforcement agencies will continue to play
the principal role in the investigation and prosecution of all
types of hate crimes, including gender-based crimes and others
for which Federal jurisdiction has been created by this bill.
Concurrent Federal jurisdiction is necessary in the hate crimes
context to permit joint State-Federal investigations and to
authorize Federal prosecutions in limited circumstances--for
example, where the State lacks jurisdiction or declines to
assume jurisdiction, where the State requests that the Federal
Government assume jurisdiction, or where actions by State and
local law enforcement officials have left demonstratively
unvindicated the Federal interest in eradicating bias-motivated
violence.
II. Pre-Existing Law and the Need for Expanded Jurisdiction
1. The ``Federally Protected Activity'' requirement of 18 U.S.C.
245(b)(2)
18 U.S.C. 245(b) has been the principal Federal hate crimes
statute since its enactment in 1968. It prohibits the use of
force, or threat of force, to injure, intimidate, or interfere
with (or to attempt to injure, intimidate, or interfere with)
``any person because of his race, color, religion or national
origin'' and because of his and her participation in any of six
``federally protected activities'' specifically enumerated in
the statute.
The six enumerated ``federally protected activities'' are:
(A) enrolling in or attending a public school or public
college; (B) participating in or enjoying a service, program,
facility or activity provided or administered by any State or
local government; (C) applying for or enjoying employment; (D)
serving in a State court as a grand or petit juror; (E)
traveling in or using a facility of interstate commerce; and
(F) enjoying the goods or services of certain places of public
accommodation.
Federal jurisdiction exists under 18 U.S.C. 245(b)(2) only
if a crime motivated by racial, ethnic, or religious hatred has
been committed with the intent to interfere with the victim's
participation in one or more of the six federally protected
activities. Even in the most blatant cases of racial, ethnic,
or religious violence, no Federal jurisdiction exists under
this section unless the federally protected activity
requirement is satisfied. This unnecessary intent requirement
has limited the ability of Federal law enforcement officials to
work with State and local officials in the investigation and
prosecution of many incidents of brutal, hate-motivated
violence and has led to acquittals in several of the cases in
which the Department of Justice has determined a need to assert
Federal jurisdiction.
The most important benefit of concurrent State and Federal
criminal jurisdiction is the ability of State and Federal law
enforcement officials to work together as partners in the
investigation and prosecution of serious crimes. When Federal
jurisdiction has existed in the limited hate crimes contexts
authorized by 18 U.S.C. 245(b), the Federal Government's
resources, forensic expertise, and experience in the
identification and proof of hate-based motivations has often
provided an invaluable investigative complement to the
familiarity of local investigators with the local community and
its people and customs. It is by working together cooperatively
that State and Federal law enforcement officials stand the best
chance of bringing the perpetrators of hate crimes swiftly to
justice.
The investigation conducted into the death of James Byrd in
Jasper County, TX, is an excellent example of the benefits of
an effective State-Federal hate crimes investigative
partnership. From the time of the first reports of Mr. Byrd's
death, the FBI collaborated with local officials in an
investigation that led to the prompt arrest and indictment of
three men on State capital murder charges. The resources,
forensic expertise, and civil rights experience of the FBI and
the Department of Justice provided assistance of great value to
local law enforcement officials.
It is also useful in this regard to consider the work of
the National Church Arson Task Force, which operates pursuant
to jurisdiction granted by 18 U.S.C. 247 and other Federal
criminal statutes that have no jurisdictional limitations
analogous to the ``federally protected activity'' requirement
of 18 U.S.C. 245(b)(2). Created in mid-1996 to address a rash
of church fires across the country, the task force's Federal
prosecutors and investigators from ATF and the FBI collaborated
with State and local officials in the investigation of every
church arson that had occurred since January 1, 1995. The
results of these State-Federal partnerships were extraordinary.
Thirty-four percent of the joint State-Federal church arson
investigations conducted during the 2-year life of the task
force resulted in arrests of one or more suspects on State or
Federal charges. The task force's 34 percent arrest rate was
more than double the normal 16-percent rate of arrest in all
arson cases nationwide, most of which are investigated by local
officials without Federal assistance. More than 80 percent of
the suspects arrested in joint State-Federal church arson
investigations during the life of the task Force were
prosecuted in State court under State law.
Congress anticipates that the State-Federal partnerships
authorized by the hate crimes act will result in an increase in
the number of hate crimes solved by arrests and successful
prosecutions analogous to that achieved through joint State-
Federal investigations in the church arson context. Congress
also anticipates that a large majority of hate crimes
prosecutions will continue to be brought in State court under
State law.
Congress recognizes, however, that in some circumstances
the Federal Government must go beyond its usual role as the
investigative partner of State and local law enforcement
officials and bring Federal criminal civil rights charges.
Where State and local prosecutors fail to bring appropriate
State charges, or where State law or procedure is inadequate to
vindicate the Federal interest in prosecuting hate crimes, it
is imperative that the Federal Government be able to step in
and bring effective Federal prosecutions. Unfortunately, the
double-intent requirement of 18 U.S.C. 245(b)(2) has precluded
the Department of Justice from performing its proper backstop
role with regard to a number of heinous hate crimes.
As Deputy Attorney General Eric Holder testified before the
Senate Committee on the Judiciary, the Department of Justice
brought Federal hate crimes prosecutions under 18 U.S.C.
245(b)(2) in each of the following cases. In each case, Federal
prosecutors lost at trial due to the statute's ``federally
protected activity'' requirement.
In 1994, a Federal jury in Fort Worth, TX, acquitted three
white supremacists of Federal criminal civil rights charges
arising from unprovoked assaults upon African-Americans,
including one incident in which the defendants knocked a man
unconscious as he stood near a bus stop. Some of the jurors
revealed after the trial that although the assaults were
clearly motivated by racial animus, there was no apparent
intent to deprive the victims of the right to participate in
any ``federally protected activity.'' The Government's proof
that the defendants went out looking for African-Americans to
assault was insufficient to satisfy the requirements of 18
U.S.C. 245(b)(2).
In 1982, two white men chased a man of Asian descent from a
nightclub in Detroit and beat him to death. The Department of
Justice prosecuted the two perpetrators under 18 U.S.C.
245(b)(2), but both were acquitted despite substantial evidence
to establish their animus based on the victim's national
origin. Although the Department has no direct evidence of the
basis for the jurors' decision, it appears that the
Government's need to prove the defendants' intent to interfere
with the victim's exercise of a federally protected right--the
use of a place of public accommodation--was the weak link in
the prosecution.
In 1980, a notorious serial murderer and white supremacist
shot and wounded an African-American civil rights leader as the
civil rights leader walked from a car toward his room in a
motel in Ft. Wayne, IN. The Department of Justice prosecuted
the shooter under 18 U.S.C. 245(b)(2), alleging that he
committed the shooting because of the victim's race and because
of the victim's participation in a federally protected
activity, i.e. the use of a place of public accommodation. The
jury found the defendant not guilty. Several jurors later
advised the press that although they were persuaded that the
defendant committed the shooting because of the victim's race,
they did not believe that he also did so because of the
victim's use of the motel.
In each of these examples, one or more persons committed a
heinous act of violence clearly motivated by the race, color,
religion, or national origin of the victim. In each instance,
local prosecutors failed to bring State criminal charges. Yet
in each case, the extra intent requirement of 18 U.S.C.
245(b)(2)--that a hate crime be committed because of the
victim's participation in one of the federally protected
activities specifically enumerated in the statute--prevented
the Department of Justice from vindicating the Federal interest
in the punishment and deterrence of hate-based violence.
The ``federally protected activity'' requirement of 18
U.S.C. 245(b)(2) has led to truly bizarre results. Federal
jurisdiction is likely to be upheld under this section when a
racially motivated assault occurs on a public sidewalk, but not
if the same incident occurs in a private parking lot across the
street. Similarly, the Federal Government's jurisdiction to
respond to a racially motivated attack that occurs in front of
a convenience store may depend on whether or not the
convenience store has a video game inside. The presence of a
video game would likely qualify the store as a ``place * * * of
entertainment'' within the meaning of 18 U.S.C. 245(b)(2)(F).
Congress has determined that the Federal Government's authority
to participate in State-Federal investigative partnerships, and
to step in and play a backstop role when necessary, should not
hinge upon such unnecessary, anachronistic distinctions.
2. Violent hate crimes based on sexual orientation, gender, or
disability
The existing Federal hate crimes law does not prohibit hate
crimes committed because of bias based on the victim's actual
or perceived sexual orientation, gender, or disability.
a. Sexual orientation
Statistics gathered by the Federal Government and private
organizations indicate that a significant number of hate crimes
based on the sexual orientation of the victim are committed
every year in the United States. Specifically, data collected
by the FBI pursuant to the Hate Crimes Statistics Act indicate
that from 1991 through 2000--the last year for which data
exists--there have been over 9,300 reported hate crimes based
on sexual orientation. In 1991, the FBI reported 425 hate
crimes based on sexual orientation. In 2000, that number had
grown to 1,299, an increase of over 200 percent. And even these
statistics may significantly understate the number of hate
crimes based on sexual orientation that actually are committed
in this country.
Many victims of antilesbian, antigay, and antitransgender
incidents do not report the crimes to local law enforcement
officials. In fact, according to Austin, TX, police Commander
Gary Olfers, hate crimes are the ``Number 1 under reported
crime in the state.'' Dallas Morning News, ``Hate-crimes
experts say statistics don't tell story: Many cases unreported;
special law rarely used'', November 8, 1999. And ``[d]espite
under reporting, the trend in state statistics shows that gays
and lesbians are increasingly the targets of crime.'' Id.
The Southern Poverty Law Center's Winter 2001 Intelligence
Report (The Hate Crime Statistics Act: Ten Years Later, The
Numbers Don't Add Up) found that ``the real level of hate
crimes--currently running at about 8,000 a year in FBI
statistics--is probably closer to 50,000.'' For example,
according to the Report, a study funded by the Justice
Department ``estimated that almost 6,000 law enforcement
agencies likely experienced at least one hate crime that went
unreported.''
Despite the prevalence of violent hate crimes committed on
the basis of sexual orientation, such crimes are not covered by
18 U.S.C. 245 unless there is some independent basis for
Federal jurisdiction, such as race-based bias. Accordingly, the
Federal Government has been without authority to work in
partnership with local law enforcement officials, or to bring
Federal prosecutions, when gay men or lesbians are the victims
of murders or other violent assaults because of bias based on
their sexual orientation.
The murder of Mathew Shepard in Laramie, WY, is a perfect
example of the limitations in pre-existing Federal law. Despite
the clear evidence that the murder of Mr. Shepard was motivated
by animus based on Mr. Shepard's sexual orientation, the
Federal Government lacked jurisdiction under pre-existing law
to act as a full partner with State and local officials in the
investigation of this horrifying crime or, if necessary, to
bring Federal hate crimes charges. As a result, according to
Commander David O'Malley--the chief investigator in the Shepard
murder case--``the Albany County Sheriff's office had to
furlough five investigators because of soaring costs''
associated with handling the case without any financial or
investigatory support from the Federal Government. (Excerpts of
press statement by Commander David O'Malley, September 12,
2000).
In a November 11, 1999, letter to Speaker Dennis Hastert,
Sheriff James Pond and detective Sergeant Robert DeBree of the
Albany County Sheriff's Department wrote: ``We believe justice
was served in this case [Shepard], but not without cost. We
have been devastated financially, due to expenses incurred in
bringing Matthew's killers to justice. For example, we had to
lay off five law enforcement staff.''
The situation confronting the Albany County Sheriff's
office in the Shepard case stands in stark contrast to what
occurred in Jasper, TX, in the James Bryd, Jr., case. Because
the murder of James Byrd, Jr. was covered under the existing
Federal hate crimes statute, the local law enforcement agency
in Jasper received forensic assistance and nearly $300,000 from
the Federal Government to help cover the costs associated with
successfully prosecuting Mr. Byrd's killers.
b. Gender
Although acts of violence committed against women
traditionally have been viewed as ``personal attacks'' rather
than as hate crimes, Congress has come to understand that a
significant number of women are exposed to terror, brutality,
serious injury, and even death because of their gender. Indeed,
Congress, through the enactment of the Violence Against Women
Act (VAWA) in 1994, has recognized that some violent assaults
committed against women are bias crimes rather than mere
``random'' attacks. The Senate Report on VAWA, which created a
Federal civil cause of action for victims of gender-based hate
crimes, stated:
The Violence Against Women Act aims to consider
gender-motivated bias crimes as seriously as other bias
crimes. Whether the attack is motivated by racial bias,
ethnic bias, or gender bias, the results are often the
same. The victims are reduced to symbols of hatred;
they are chosen not because of who they are as
individuals but because of their class status. The
violence not only wounds physically, it degrades and
terrorizes, instilling fear and inhibiting the lives of
all those similarly situated. ``Placing this violence
in the context of the civil rights laws recognizes it
for what it is--a hate crime.''
Senate Report No. 103-138 (1993) (quoting testimony of Prof.
Burt Neuborne).
The majority of States do not have statutes that
specifically prohibit gender-based or transgender-based hate
crimes. Although all 50 states have statutes prohibiting rape
and other crimes typically committed against women, only 24,
plus the District of Columbia, have hate crimes statutes that
include gender among the categories of prohibited bias motives.
The Committee has concluded that the Federal Government
should have jurisdiction, as set forth in the hate crimes act,
to work together with State and local law enforcement officials
in the investigation of violent gender-based and transgender-
based hate crimes and, where appropriate in rare circumstances,
to bring Federal prosecutions aimed at vindicating the strong
Federal interest in combating the most heinous of these crimes
of violence.
It is important to emphasize in this regard that the Hate
Crimes Act will not result in the federalization of all rapes,
other sexual assaults, or acts of domestic violence. Rather, as
discussed below in greater detail, Congress has drafted the
bill to ensure that the Federal Government's investigations and
prosecutions of gender-based hate crimes will be strictly
limited to those crimes that are motivated by gender-based
animus and, thus, implicate the greatest Federal interest. The
April 10, 2002, indictment of Darrell David Rice by the Justice
Department for the brutal murders of Juliane Marie Williams and
Laura S. Winans is a clear example of such a crime.
As is the case with other categories of hate crimes, State
and local authorities will continue to prosecute virtually all
gender-motivated hate crimes. One principal reason for this is
that while State and local prosecutors are required to prove
only that the perpetrator committed the act alleged in the
indictment, Federal prosecutors will be required to prove not
only that the perpetrator committed the act alleged, but also
that the perpetrator was motivated by animus based on actual or
perceived gender and that the crime has a nexus to interstate
commerce.
c. Disability
Congress has shown a consistent and durable commitment over
the past decade to the protection of persons with disabilities
from discrimination based on their disabilities. Beginning with
the 1988 amendments to the Fair Housing Act, and culminating
with the enactment of the Americans with Disabilities Act of
1990, Congress has extended civil rights protections to persons
with disabilities in many traditional civil rights contexts.
Currently, 24 States plus the District of Columbia have hate
crime statutes that cover disability.
Concerned about the problem of disability-based hate
crimes, Congress also amended the Hate Crimes Statistics Act in
1994 to require the FBI to collect information about such hate-
based incidents from State and local law enforcement agencies.
Congress has determined that the Federal interest in being
able to work together with State and local officials in the
investigation and prosecution of hate crimes motivated by
animus based on disability is sufficiently strong to warrant
amendment of 18 U.S.C. 245, as set forth in the Hate Crimes
Act, to include such crimes when they result in bodily injury
and when Federal prosecution is consistent with the commerce
clause.
III. The Local Law Enforcement Enhancement Act of 2001
The Local Law Enforcement Enhancement Act of 2001 creates a
three-tiered system for the Federal prosecution of hate crimes
under 18 U.S.C. 245, as follows:
First, the bill leaves 18 U.S.C. 245(b)(2) as is. As
discussed above, 18 U.S.C. 245(b)(2) prohibits the intentional
interference, or attempted interference, with a person's
participation in one of six specifically enumerated ``federally
protected activities'' on the basis of the person's race,
color, religion, or national origin. No showing of bodily
injury is required to prove a misdemeanor offense under this
section; to prove a felony, the Government must prove either
that bodily injury or death resulted or that the offense
included the use, attempted use, or threatened use of a
dangerous weapon, explosives, or fire.
Second, the bill adds a new section to title 18 of the U.S.
Code to be codified at 18 U.S.C. 249--entitled ``Hate crime
acts.'' In particular, section 249(a)(1) prohibits the
intentional infliction of bodily injury on the basis of race,
color, religion, or national origin. Unlike 18 U.S.C.
245(b)(2), this new provision does not require a showing that
the defendant committed the offense because of the victim's
participation in a federally protected activity. However, an
offense under the new 18 U.S.C. 249(a)(1) will be prosecuted as
a felony only, and a showing either of bodily injury or death
or of an attempt to cause bodily injury or death through the
use of fire, a firearm, or an explosive device is required.
Other attempts will not constitute offenses under this section.
Third, the new section 18 U.S.C. 249(a)(2), prohibits the
intentional infliction of bodily injury or death (or an attempt
to inflict bodily injury or death through the use of fire, a
firearm, or an explosive device) on the basis of religion,
gender, sexual orientation, or disability. Like 18 U.S.C. 245,
this provision authorizes the prosecution of felonies only and
excludes most attempts, while omitting the ``federally
protected activity'' requirement of 18 U.S.C. 245.
Unlike 18 U.S.C. 245, however, this second new provision
requires proof that the defendant was motivated by hate based
on the actual or perceived sexual orientation, gender, or
disability of any person. In addition, this provision requires
proof of a commerce clause nexus as an element of the offense.
Specifically, the Government must prove:
<bullet> the conduct occurs during the course of, or as the
result of, the travel of the defendant or the victim--
(I) across a State line or national border; or
(II) using a channel, facility, or instrumentality of
interstate or foreign commerce;
<bullet> the defendant uses a channel, facility, or
instrumentality of interstate or foreign commerce in
connection with the conduct;
<bullet> the defendant employs a firearm, explosive or
incendiary device, or other weapon that has traveled in
interstate or foreign commerce; or
(I) interferes with commercial or other economic
activity in which the victim is engaged at the time of
the conduct; or
(II) otherwise affects interstate or foreign
commerce.
<bullet> the defendant or the victim travels in interstate or
foreign commerce, uses a facility or instrumentality of
interstate or foreign commerce, or engages in activity
affecting interstate or foreign commerce; or
<bullet> the offense is in or affects interstate or foreign
commerce.'' See 18 U.S.C. 245(c)(2)(B).
Finally, for prosecutions under sections 249 (a)(1) and
(a)(2), the bill requires a certification by the Attorney
General (or one of a few other senior Department of Justice
officials designated in the bill) that:
<bullet> (1) he or she has reasonable cause to believe that
the actual or perceived race, color, religion, national
origin, gender, sexual orientation, or disability of
any person was a motivating factor underlying the
alleged conduct of the defendant; and
<bullet> (2) he or his designee or she or her designee has
consulted with State or local law enforcement officials
regarding the prosecution and determined that--
(A) the State does not have jurisdiction or does not
intend to exercise jurisdiction;
(B) the State has requested that the Federal
Government assume jurisdiction;
(C) the State does not object to the Federal
Government assuming jurisdiction; or
(D) the verdict or sentence obtained pursuant to
State charges left demonstratively unvindicated the
Federal interest in eradicating bias-motivated
violence.
IV. Federalization
As stated above, it is both the intent and the expectation
of Congress that the enactment of the Hate Crimes Act will
result in only a modest increase in the number of hate crimes
prosecutions brought by the Federal Government. In the more
than 30 years since 18 U.S.C. 245 was enacted, the Federal
Government, on average, has prosecuted four hate crimes a year.
Congress has carefully drafted this bill, and included limiting
statutory language where necessary, to ensure that the Federal
Government will continue to limit its prosecutions of hate
crimes--particularly those motivated by actual or perceived
animus based on gender--to the small set of cases that
implicate the greatest Federal interest and present a need for
Federal intervention. It is essential that all understand that
it is not the intention of Congress to federalize all rapes,
sexual assaults, acts of domestic violence, or other gender-
based crimes.
The express language of the bill contains several important
limiting principles. First, the bill requires proof that
offenses in the three new categories be motivated by animus
based on actual or perceived sexual orientation, gender, or
disability. This statutory animus requirement, which the
Government must prove beyond a reasonable doubt as an element
of the offense, will limit the pool of potential Federal cases
to those in which the evidence of bias motivation is sufficient
to distinguish them from ordinary State law cases.
Second, the bill requires a nexus to interstate commerce
for all Federal hate crimes based on sexual orientation,
gender, or disability. This interstate commerce requirement,
which the Government must prove beyond a reasonable doubt as an
element of the offense, will limit Federal jurisdiction in
these new categories to cases that implicate Federal interests.
Third, the bill excludes misdemeanors and limits Federal
hate crimes based on sexual orientation, gender, or disability
to those involving bodily injury or death (and a limited set of
attempts to cause bodily injury or death). These limitations
will narrow the set of newly federalized cases to truly serious
offenses.
Finally, while 18 U.S.C. 245 already requires a written
certification by the Attorney General, the Deputy Attorney
General, the Associate Attorney General, or a specially
designated Assistant Attorney General that ``in his [or her]
judgment a prosecution by the United States is in the public
interest and necessary to secure substantial justice'' before
any prosecution under the statute may be commenced, see 18
U.S.C. 245(a)(1), the Hate Crimes Act requires an even stricter
certification for prosecutions brought under the provisions of
the bill that create new Federal categories of hate crimes.
Specifically, the bill requires certification, by the
Attorney General or other high-ranking Department of Justice
official specified therein, that: ``(1) he or she has
reasonable cause to believe that the actual or perceived race,
color, national origin, religion, sexual orientation, gender,
or disability of any person was a substantial motivating factor
underlying the defendant's conduct; and (2) that he or his
designee, or she or her designee, has consulted with state or
local law enforcement officials regarding the prosecution and
determined that: (a) the State does not have jurisdiction or
refuses to assume jurisdiction; or (b) the State has requested
that the federal government assume jurisdiction; (c) the state
does not object to the federal government assuming
jurisdiction; or (d) actions by state and local law enforcement
officials have left demonstrably unvindicated the federal
interest in eradicating bias-motivated violence.'' 18 U.S.C.
249(b). This heightened certification requirement is intended
to ensure that the Federal Government will assert its new hate
crimes jurisdiction in a principled and properly limited
fashion.
Congress expects the efforts of the Department of Justice
under the new substantive provisions of the Hate Crimes Act to
be guided by Department-wide policies that impose additional
limitations on the cases prosecuted by the Federal Government.
First, under the ``backstop policy'' that applies to all of the
Federal Government's criminal civil rights investigations, the
Department of Justice defers prosecution in the first instance
to State and local law enforcement officials except in highly
sensitive cases in which the Federal interest in prompt Federal
investigation and prosecution outweighs the usual
justifications of the backstop policy.
Second, under the formal policy of the Department of
Justice on dual and successive prosecutions, the Department
does not bring a Federal prosecution following a State
prosecution arising from the same incident unless the matter
involved a ``substantial federal interest'' that the state
prosecution had left ``demonstrably unvindicated.''
Some opponents of the Hate Crimes Act argue that the
legislation will unduly expand Federal authority and infringe
on the States' discretion in prosecuting criminal conduct. This
view was expressed by Senator Hatch, who asserted that the Hate
Crimes Act ``strays from the foundations of our Constitutional
structure--namely, the first principles of federalism that for
more than two centuries have vested states with primary
responsibility for prosecuting crimes committed within their
boundaries.'' \2\ Although the Committee agrees with Senator
Hatch concerning the proper role of the Federal Government in
prosecuting criminal conduct, the Hate Crimes Act is consistent
with a long history of Federal involvement in combating
criminal conduct.
---------------------------------------------------------------------------
\2\ Congressional Record, July 21, 1999.
---------------------------------------------------------------------------
Alexander Hamilton, an advocate of a strong national
government, eloquently expressed the notion that law
enforcement generally should be the responsibility of the
State. He wrote in Federalist Number 17, ``There is one
transcendent advantage belonging to the province of the state
governments, which alone suffices to place the matter in a
clear and satisfactory light. I mean the ordinary
administration of criminal and civil justice.''
Today, 95 percent of all criminal prosecutions are handled
at the State and local level. At the same time, a review of the
Federal criminal code belies the argument that criminal law is
the sole province of State and local governments. In fact,
since the first Congress, the Federal Government has involved
itself in the enactment and enforcement of criminal laws. The
Committee believes that hate crimes legislation is just as
vital to the national interest as prior criminal statutes
passed by Congress--many in the past 6 years and unanimously
supported by opponents of hate crimes legislation.
There are already more than 3,000 Federal crimes.\3\ In
fact, the First Congress in the Crimes Act of 1790 \4\
established 17 Federal crimes, including treason, counterfeit,
perjury, and receiving stolen goods. Since then, the extent of
Federal criminal law has greatly expanded into areas
traditionally prosecuted by the States. For example, after the
Civil War, Congress passed the Post Office Act of 1872 which
forbade mailing lottery tickets and obscene materials or using
the mail to defraud. The next year, the Comstock Law forbade
using the mail to send obscene books, contraceptives, or an
article for procuring abortion. In 1884, Congress forbade
railroads and boat lines from accepting or transporting
diseased livestock. Shortly thereafter, it enacted the Sherman
Act.
---------------------------------------------------------------------------
\3\ See Hon. Roger J. Miner, ``Crime and Punishment in the Federal
Courts,'' 43 Syracuse L. Rev. 682, 681 (1992).
\4\ 1 Stat. 112.
---------------------------------------------------------------------------
At the turn of the century, Congress continued to expand
Federal criminal law. The Mann Act \5\ prohibited the transport
of women across State lines for illicit purposes; the Dyer Act
\6\ prohibited transporting a stolen motor vehicle across State
lines; and the Volstead Act \7\ instituted prohibition. In the
1930's, Congress enacted the Lindbergh Act, prohibiting the
transportation of a kidnaping victim across State lines; \8\
the Fugitive Felon Act,\9\ prohibiting interstate flight to
avoid prosecution for enumerate violent felonies; the National
Firearms Act,\10\ regulating the sale of guns; the National
Stolen Property Act,\11\ prohibiting the transportation of
stolen property in interstate commerce; and statutes that
punished robbing a national bank; \12\ and extortion by
telephone, telegraph or radio.\13\
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\5\ Act of June 25, 1910, ch. 395, 36 Stat. 825. The Supreme Court
upheld the statute in Hoke v. United States, 227 U.S. 308 (1913).
\6\ Act of Oct. 29, 1919, ch. 89, 41 Stat. 324. The Supreme Court
upheld the Dyer Act in Brooks v. United States, 267 U.S. 432 (1925).
\7\ Act of Oct. 28, 1919, ch. 85, 41 Stat. 305.
\8\ Ch. 271, 47 Stat. 326 (1932).
\9\ Ch. 302, 48 Stat. 782 (1934).
\10\ Act of June 26, 1934, ch. 757, 48 Stat. 1236.
\11\ Ch. 333, 48 Stat. 794 (1934).
\12\ Ch. 304, 48 Stat. 783 (1934).
\13\ Ch. 300, 48 Stat. 781 (1934).
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Since then, Congress has passed the Omnibus Crime Control
and Safe Streets Act of 1968,\14\ the Organized Crime Control
Act of 1970,\15\ the Comprehensive Drug Prevention and Control
Act of 1970,\16\ the Crime Control Act of 1984,\17\ the Anti-
Drug Abuse Acts of 1986 \18\ and 1988,\19\ the Comprehensive
Crime Control Act of 1990,\20\ and the Violent Crime Control
and Law Enforcement Act of 1994.\21\
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\14\ Public Law 90-351, 82 Stat. 197 (1968).
\15\ Public Law 91-452, 84 Stat. 922 (1970).
\16\ Public Law 91-513, 84 Stat. 1236 (1970).
\17\ Public Law 98-473, 98 Stat. 1837 (1984).
\18\ Public Law 99-570, 100 Stat. 3207 (1986).
\19\ Public Law 100-690, 102 Stat. 4181 (1988).
\20\ Public Law 101-647, 104 Stat. 4789 (1990).
\21\ Public Law 103-322, 108 Stat. 1796 (1994).
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Since 1995 alone, Congress has enacted more than 37 laws
that create new Federal crimes or impose new Federal criminal
penalties for conduct that is already criminal under State law.
For example, in 1996, Congress, with a vote of 98-0 in the
Senate, enacted the Church Arson Prevention Act.\22\ In
encouraging passage, Senator Frist observed:
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\22\ Public Law 104-155.
I truly believe that the local authorities are the
best resources to investigate and solve [church
arsons]. This bill does not undermine, or in any way,
suggest, that the local authorities are not capable of
solving these crimes. Rather, the bill helps to deal
with special difficulties involved when a criminal
moves from state to state and where federal assistance
and a federal statute is needed to adequately resolve
the problem.\23\
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\23\ Congressional Record, July 8, 1996.
Likewise, in 1997, Congress unanimously passed the Criminal
Use of Guns Act,\24\ which increases mandatory minimum
sentences for individuals who commit crimes of violence or drug
trafficking when a firearm is used in the crime. In supporting
the legislation, Senator Helms expressed the view that:
``Fighting crime is, and must be, a prime concern in America''
and that enacting the legislation ``is a necessary step toward
recommitting our Government and our citizens to a real honest-
to-God war on crime.'' \25\
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\24\ Public Law 105-386.
\25\ Congressional Record, Jan. 21, 1997.
---------------------------------------------------------------------------
Two years later, in 1999, Congress unanimously enacted the
Federal Law Enforcement Animal Protection Act,\26\ making it a
Federal offense--punishable for up to 10 years in prison--to
injure a Federal law enforcement animal. That same year, it
unanimously passed the Prevention of Depiction of Animal
Cruelty Act,\27\ banning the interstate commerce of videos
depicting cruelty to animals. During the debate on the latter,
Senator Smith of New Hampshire argued that ``state anti-cruelty
statutes are not adequate in addressing this problem.'' \28\
Likewise, Senator Kyl argued that ``while the acts of animal
cruelty featured in these videos may violate many state animal
cruelty laws, they can be difficult to prosecute.'' \29\
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\26\ Public Law 106-254.
\27\ Public Law 106-152.
\28\ Congressional Record, Nov. 19, 1999.
\29\ Id.
---------------------------------------------------------------------------
Today, the Federal law reaches aspects of the following
traditional State offenses: theft,\30\ fraud,\31\
extortion,\32\ bribery,\33\ assault,\34\ domestic violence,\35\
robbery,\36\ murder,\37\ and drug offenses.\38\ Although
Congress should be cautious in expanding Federal criminal
statutes, the Committee believes combating a growing trend of
hate-motivated violence is an important function of the Federal
Government.
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\30\ 18 U.S.C. 659 (theft from interstate shipment), 18 U.S.C.
2312, 2313 (interstate transportation of stolen motor vehicles), 18
U.S.C. 2314, 2315 (interstate transportation of stolen property).
\31\18 U.S.C. 1341 (mail fraud), 18 U.S.C. 1343 (wire fraud), 18
U.S.C. 1344 (bank fraud).
\32\ 18 U.S.C. 1951 (interference with commerce by extortion), 18
U.S.C. 891-894 (extortionate credit transaction).
\33\ 18 U.S.C. 201 (bribery of Federal official), 18 U.S.C. 224
(sports bribery), 18 U.S.C. 666 (Federal program bribery), 18 U.S.C.
1952 (interstate travel in aid of bribery).
\34\ 18 U.S.C. 351 (assault on federally protected persons), 18
U.S.C. 1501 (assault on process server).
\35\ 18 U.S.C. 2261 (interstate domestic violence).
\36\ 18 U.S.C. 1951 (interference with interstate commerce by
threats of violence).
\37\ 18 U.S.C. 1116 (murder of foreign officials, official guests,
and internationally protected persons), 18 U.S.C. 1117 (conspiracy to
commit murder), 18 U.S.C. 1120 (murder by escaped Federal prisoner), 18
U.S.C. 1958 (use of interstate commerce facilities in commission of
murder-for-hire).
\38\ 21 U.S.C. 841 (manufacture, distribution, and possession with
the intent to distribute), 21 U.S.C. 846 (drug conspiracy), 21 U.S.C.
848 (drug kingpin).
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V. Constitutional Basis
The 13th amendment broadly authorizes Congress to regulate
acts of violence committed on the basis of race, color,
religion, or national origin and therefore provides an ample
constitutional basis for the provision of the Hate Crimes Act
that addresses hate crimes falling within these categories.
The commerce clause provides Congress' strongest source of
legislative authority to regulate acts of violence motivated by
animus based on actual or perceived sexual orientation, gender,
or disability. To avoid constitutional concerns arising from
the Supreme Court's Lopez decision, Congress has required that
the Government prove beyond a reasonable doubt, as an element
of the offense, a nexus to interstate commerce in every
prosecution brought under one of the newly created categories
of 18 U.S.C. 249(a)(2). Congress has drafted the commerce
clause element in a manner intended to reach all cases within
the scope of its commerce power. Pursuant to 18 U.S.C.
249(a)(2), the Government must prove, in hate crimes
prosecutions involving conduct motivated by animus based on
actual or perceived sexual orientation, gender, or disability,
``that (i) in connection with the offense, the defendant
travel[ed] in interstate or foreign commerce, use[d] a facility
or instrumentality of interstate or foreign commerce, or
engage[d] in activities that affect interstate or foreign
commerce; or (ii) the offense [wa]s in or affect[ed] interstate
or foreign commerce.''
The interstate commerce element will ensure that hate
crimes prosecutions brought under the new 18 U.S.C. 249(a)(2)
will not be mired in constitutional litigation concerning the
scope of Congress' power under the enforcement provisions of
the 13th and 14th amendments. Congress believes that the
interstate commerce element contained in the bill for hate
crimes based on sexual orientation, gender, or disability fully
satisfies Congress' obligation to comply with the commerce
clause. The interstate commerce nexus required by the bill is
analogous to that required in many other Federal criminal
statutes, including the Church Arson Prevention Act of 1996,
the Hobbs Act, and the Racketeer Influenced and Corrupt
Organizations Act (RICO). Prosecutions brought under these
statutes have not raised problematic constitutional litigation
over the interpretation of their respective commerce clause
elements.
Indeed, the Church Arson Prevention Act of 1996 provides a
strong precedent for the structure of the Hate Crimes Act.
Congress passed the Church Arson Prevention Act after
discovering that then-existing Federal laws pertaining to
church arson cases contained unnecessarily onerous
jurisdictional requirements. Consistent with its constitutional
authority, Congress amended the church arson statute, 18 U.S.C.
247, to limit to church arson cases involving religious
motivation its requirement that a nexus to interstate commerce
be proved. Analogous to the structure set forth in the Hate
Crimes Act, the Church Arson Prevention Act does not require
proof of an interstate commerce element in church arson cases
involving racial or ethnic motivation. The changes in Federal
law achieved through the enactment of the Church Arson
Prevention Act have been largely responsible for the remarkable
success of the National Church Arson Task Force, which, as
described above, has worked in partnership with State and local
officials to solve church arson cases at more than double the
usual rate of arrest in all arson cases nationwide.
Finally, to the extent that there may be open questions
regarding the precise contours of the range of circumstances
under which the enforcement provision of the 13th amendment
authorizes Congress to criminalize hate crimes committed on the
basis of religion, Congress has included religious violence in
both 18 U.S.C. 249(a)(1), which is based on Congress'
enforcement powers under the 13th amendment and does not
require proof of a nexus to interstate commerce, and 18 U.S.C.
249(a)(2), which is based on Congress' powers under the
commerce clause and contains an interstate commerce element
that must be proved by the Government beyond a reasonable doubt
in each case. The inclusion of religion in both subsection
(a)(1) and subsection (a)(2) will enable prosecutors to
determine, based on the facts of each case before them, how
best to proceed in light of possible constitutional challenges
that might be brought.
a. Justice Department letter on constitutionality
The following letter, prepared by the Department of Justice
in the wake of the Supreme Court's decision in U.S. v.
Morrison, 120 S. Ct. 1740 (2000), discusses in greater detail
the constitutionality of the Hate Crimes Act:
U.S. Department of Justice,
Office of Legislative Affairs,
Office of the Assistant Attorney General,
Washington, DC, June 13, 2000.
The Honorable Edward Kennedy,
U.S. Senate, Washington, DC.
Dear Senator Kennedy: This letter responds to your request
for our views on the constitutionality of a proposed
legislative amendment entitled the ``Local Law Enforcement
Enhancement Act of 2000.'' Section 7(a) of the bill would amend
title 18 of the United States Code to create a new section 249,
which would establish two criminal prohibitions called ``hate
crime acts.'' First, proposed section 249(a)(1) would prohibit
willfully causing bodily injury to any person, or attempting to
cause bodily injury to any person through the use of fire, a
firearm, or an explosive or incendiary device, ``because of the
actual or perceived race, color, religion, or national origin
of any person.'' Second, proposed section 249(a)(2) would
prohibit willfully causing bodily injury to any person, or
attempting to cause bodily injury to any person through the use
of fire, a firearm, or an explosive or incendiary device,
``because of the actual or perceived religion, national origin,
gender, sexual orientation, or disability of any person,''
section 249(a)(2)(A), but only if the conduct occurs in at
least one of a series of defined ``circumstances'' that have an
explicit connection with or effect on interstate or foreign
commerce, section 249(a)(2)(B).
In light of United States v. Morrison, 120 S. Ct. 1740
(2000), and other recent Supreme Court decisions, defendants
might challenge the constitutionality of their convictions
under section 249 on the ground that Congress lacks power to
enact the proposed statute. We believe, for the reasons set
forth below, that the statute would be constitutional under
governing Supreme Court precedents.\39\ We consider in turn the
two proposed new crimes that would be created in section 249.
---------------------------------------------------------------------------
\39\ Because you have asked specifically about the effect of
Morrison on the constitutionality of the proposed bill, this letter
addresses constitutional questions relating only to Congress' power to
enact the proposed bill.
---------------------------------------------------------------------------
1. Proposed 18 U.S.C. 249(a)(1)
Congress may prohibit the first category of hate crime acts
that would be proscribed--actual or attempted violence directed
at persons ``because of the[ir] actual or perceived race,
color, religion, or national origin,'' section 249(a)(1)--
pursuant to its power to enforce the 13th amendment to the U.S.
Constitution.\40\ Section 1 of that amendment provides, in
relevant part, ``[n]either slavery nor involuntary servitude *
* *, shall exist within the United States.'' Section 2
provides, ``Congress shall have power to enforce this article
by appropriate legislation.''
---------------------------------------------------------------------------
\40\ Given our conclusion that Congress possesses authority to
enact this provision under the 13th amendment, we do not address
whether Congress might also possess authority under the commerce clause
and the 14th amendment.
---------------------------------------------------------------------------
Under the 13th amendment, Congress has the authority not
only to prevent the ``actual imposition of slavery or
involuntary servitude,'' but to ensure that none of the
``badges and incidents'' of slavery or involuntary servitude
exists in the United States. Griffin v. Breckinridge, 403 U.S.
88, 105 (1971); see Jones v. Alfred H. Mayer Co., 392 U.S. 409,
440-43 (1968) (discussing Congress' power to eliminate the
``badges,'' ``incidents,'' and ``relic[s]'' of slavery).
``Congress has the power under the Thirteenth Amendment
rationally to determine what are the badges and incidents of
slavery, and the authority to translate that determination into
effective legislation.'' Griffin, 403 U.S. at 105 (quoting
Jones, 392 U.S. at 440); see also Civil Rights Cases, 109 U.S.
3, 21 (1883) (``Congress has a right to enact all necessary and
proper laws for the obliteration and prevention of slavery,
with all its badges and incidents''). In so legislating,
Congress may impose liability not only for State action, but
for ``varieties of private conduct,'' as well. Griffin, 403
U.S. at 105.
Section 2(10) of the bill's findings provides, in relevant
part, that ``eliminating racially motivated violence is an
important means of eliminating, to the extent possible, the
badges, incidents, and relics of slavery and involuntary
servitude,'' and that ``[s]lavery and involuntary servitude
were enforced * * * through widespread public and private
violence directed at persons because of their race.'' So long
as Congress may rationally reach such determinations--and we
believe Congress plainly could \41\--the prohibition of
racially motivated violence would be a permissible exercise of
Congress' broad authority to enforce the 13th amendment.
---------------------------------------------------------------------------
\41\ See, e.g., Patterson v. McLean Credit Union, 491 U.S. 183
(1989); Jones, 392 U.S. at 441 n.78; Hodges v. United States, 203 U.S.
1, 3435 (1906) (Harlan, J., dissenting), and citing Jones v. Alfred H.
Mayer Co., 392 U.S. 409, 441 n.78 (1968). In McDonald, for example, the
Supreme Court held that 42 U.S.C. 1981, a Reconstruction-era statute
that was enacted pursuant to, and contemporaneously with, the 13th
amendment, prohibits racial discrimination in the making and
enforcement of contracts against all persons, including whites. See
McDonald, 427 U.S. at 28696.
---------------------------------------------------------------------------
That the bill would prohibit violence against not only
African Americans but also persons of other races does not
alter our conclusion. While it is true that the institution of
slavery in the United States, the abolition of which was the
primary impetus for the 13th amendment, primarily involved the
subjugation of African Americans, it is well-established by
Supreme Court precedent that Congress' authority to abolish the
badges and incidents of slavery extends ``to legislat[ion] in
regard to `every race and individual.' '' McDonald v. Santa Fe
Trail Transp. Co., 427 U.S. 273, 288 n.18 (1976) (quoting
Hodges v. United States, 203 U.S. 1, 16-17 (1906).
The question whether Congress may prohibit violence against
persons because of their actual or perceived religion or
national origin is more complex, but there is a substantial
basis to conclude that the 13th amendment grants Congress that
authority, at a minimum, with respect to some religions and
national origins. In Saint Francis College v. Al-Khazraii, 481
U.S. 604, 613 (1987), the Court held that the prohibition of
discrimination in 1981 extends to discrimination against Arabs,
as Congress intended to protect ``identifiable classes of
persons who are subjected to intentional discrimination solely
because of their ancestry or ethnic characteristics.''
Similarly, the Court in Shaare Tefila Congregation v. Cobb, 481
U.S. 615, 617-18 (1987), held that Jews can state a claim under
42 U.S.C. 1982, another Reconstruction-era antidiscrimination
statute enacted pursuant to, and contemporaneously with, the
13th amendment. In construing the reach of these two
Reconstruction-era statutes, the Supreme Court found that
Congress intended those statutes to extend to groups like
``Arabs'' and ``Jews'' because those groups ``were among the
peoples [at the time the statutes were adopted] considered to
be distinct races.'' Id; see also Saint Francis College, 481
U.S. at 610-13. We thus believe that Congress would have
authority under the 13th amendment to extend the prohibitions
of proposed section 249(a)(1) to violence that is based on a
victim's religion or national origin, at least to the extent
the violence is directed at members of those religions or
national origins that would have been considered races at the
time of the adoption of the 13th amendment.\42\
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\42\ In light of the Court's construction of 1981 and 1982 in
Shaare Tefila Congregation and St. Francis College, it would be
consistent for the Court so to construe this legislation, especially
with sufficient guidance from Congress.
---------------------------------------------------------------------------
None of the Court's recent federalism decisions casts doubt
on Congress' powers under the 13th amendment to eliminate the
badges and incidents of slavery. Both Boeme v. Flores, 521 U.S.
507 (1997), and United States v. Morrison, 120 S. Ct. 1740
(2000), involved legislation that was found to exceed Congress'
powers under the 14th amendment. The Court in Morrison, for
example, found that Congress lacked the power to enact the
civil remedy of the Violence Against Women Act (``VAWA''), 42
U.S.C. 13981, pursuant to the 14th amendment because that
amendment's equal protection guarantee extends only to ``state
action,'' and the private remedy there was not, in the Court's
view, sufficiently directed at such ``state action.'' 120 S.
Ct. at 1756, 1758. The 13th amendment, however, plainly reaches
private conduct as well as Government conduct, and Congress
thus is authorized to prohibit private action that constitutes
a badge, incident or relic of slavery. See Griffin, 403 U.S. at
105; Jones, 392 U.S. at 440-43. Enactment of the proposed
section 249(a)(1) therefore would be within Congress' 13th
amendment power.
2. Proposed 18 U.S.C. 249(a)(2)
Congress may prohibit the second category of hate crime
acts that would be proscribed certain instances of actual or
attempted violence directed at persons ``because of the[ir]
actual or perceived religion, national origin, gender, sexual
orientation, or disability,'' section 249(a)(1)(A)--pursuant to
its power under the commerce clause of the Constitution, art.
I., section 8, cl. 3.
The Court in Morrison emphasized that ``even under our
modern, expansive interpretation of the Commerce Clause,
Congress' regulatory authority is not without effective
bounds.'' 120 S. Ct. at 1748; see also United States v. Lopez,
514 U.S. 549, 557-61 (1995). Consistent with the Court's
emphasis, the prohibitions of proposed section 249(a)(2) (in
contrast to the provisions of proposed section 249(a)(1),
discussed above), would not apply except where there is an
explicit and discrete connection between the proscribed conduct
and interstate or foreign commerce, a connection that the
Government would be required to allege and prove in each case.
In Lopez, the Court considered Congress' power to enact a
statute prohibiting the possession of firearms within 1,000
feet of a school. Conviction for a violation of that statute
required no proof of a jurisdictional nexus between the gun, or
the gun possession, and interstate commerce. The statute
included no findings from which the Court could find that the
possession of guns near schools substantially affected
interstate commerce and, in the Court's view, the possession of
a gun was not an economic activity itself. Under these
circumstances, the Court held that the statute exceeded
Congress' power to regulate interstate commerce because the
prohibited conduct could not be said to ``substantially
affect'' interstate commerce. Proposed section 249(a)(2), by
contrast to the statute invalidated in Lopez, would require
pleading and proof of a specific jurisdictional nexus to
interstate commerce for each and every offense.
In Morrison, the Court applied its holding in Lopez to find
unconstitutional the civil remedy provided in VAWA, 42 U.S.C.
13981. Like the prohibition of gun possession in the statute at
issue in Lopez, the VAWA civil remedy required no pleading or
proof of a connection between the specific conduct prohibited
by the statute and interstate commerce. Although the VAWA
statute was supported by extensive congressional findings of
the relationship between violence against women and the
national economy, the Court was troubled that accepting this as
a basis for legislation under the commerce clause would permit
Congress to regulate anything, thus obliterating the
``distinction between what is truly national and what is truly
local.'' Morrison, 120 5. Ct. at 1754 (citing Lopez, 514 U.S.
at 568). By contrast, the requirement in proposed section
249(a)(2) of proof in each case of a specific nexus between
interstate commerce and the proscribed conduct would ensure
that only conduct that falls within the commerce power, and
thus is ``truly national,'' would be within the reach of that
statutory provision.
The Court in Morrison emphasized, as it did in Lopez, 514
U.S. at 561-62, that the statute the Court was invalidating did
not include an ``express jurisdictional element,'' 120 5. Ct.
at 1751, and compared this unfavorably to the criminal
provision of VAWA, 18 U.S.C. 2261(a)(1), which does include
such a jurisdictional nexus. See id. at 1752 n.5. The Court
indicated that the presence of such a jurisdictional nexus
would go far toward meeting its constitutional concerns:
The second consideration that we found important in
analyzing [the statute in Lopez] was that the statute
contained ``no express jurisdictional element which
might limit its reach to a discrete set of firearm
possessions that additionally have an explicit
connection with or effect on interstate commerce.''
[514 U.S.] at 562. Such a jurisdictional element may
establish that the enactment is in pursuance of
Congress' regulation of interstate commerce.
Id. at 1750-51; see also id. at 1751-52 (``Although Lopez makes
clear that such a jurisdictional element would lend support to
the argument that [the provision at issue in Morrison] is
sufficiently tied to interstate commerce, Congress elected to
cast [the provision's] remedy over a wider, and more purely
intrastate, body of violent crime.'').
While the Court in Morrison stated that Congress may not
``regulate noneconomic, violent criminal conduct based solely
on that conduct's aggregate effect on interstate commerce,''
id. at 1754, the proposed regulation of violent conduct in
section 249(a)(2) would not be based ``solely on that conduct's
aggregate effect on interstate commerce,'' but would instead be
based on a specific and discrete connection between each
instance of prohibited conduct and interstate or foreign
commerce. Specifically, with respect to violence because of the
actual or perceived religion, national origin, gender, sexual
orientation, or disability of the victim, proposed section
249(a)(2) would require the Government to prove one or more
specific jurisdictional commerce ``elements'' beyond a
reasonable doubt. This additional jurisdictional requirement
would reflect Congress' intent that section 249(a)(2) reach
only a ``discrete set of [violent acts] that additionally have
an explicit connection with or effect on interstate commerce,''
120 S. Ct. at 1751 (quoting Lopez, 514 U.S. at 562), and would
fundamentally distinguish this statute from those that the
Court invalidated in Lopez and in Morrison.\43\ Absent such a
jurisdictional element, there exists the risk that ``a few
random instances of interstate effects could be used to justify
regulation of a multitude of intrastate transactions with no
interstate effects.'' United States v. Harrington, 108 F.3d
1460, 1467 (D.C. Cir. 1997). By contrast, in the context of a
statute with an interstate jurisdictional element (such as in
proposed section 249(a)(2)(B)), ``each case stands alone on its
evidence that a concrete and specific effect does exist.''
Id.\44\
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\43\ See also Morrison, 120 S. Ct. at 1775 (Breyer, J., dissenting)
(``the Court reaffirms, as it should, Congress' well-established and
frequently exercised power to enact laws that satisfy a commerce-
related jurisdictional prerequisite--for example, that some item
relevant to the federally regulated activity has at some time crossed a
state line''). Of course, our reliance on the jurisdictional nexus in
sec. 249(a)(2) is not intended to suggest that such a jurisdictional
nexus is always necessary to sustain commerce clause legislation.
\44\ That a jurisdictional element makes a material difference for
constitutional purposes is demonstrated by the Lopez Court's citation
to the jurisdictional element in the statute at issue in United States
v. Bass, 404 U.S. 336 (1971), as an example of a provision that ``would
ensure, through case-by-case inquiry, that the firearm possession in
question affects interstate commerce.'' 514 U.S. at 561. The Lopez
Court wrote:
For example, in United States v. Bass, 404 U.S. 336
(1971), the Court interpreted former 18 U.S.C.
Sec. 1202(a), which made it a crime for a felon to
``receiv[e], posses[s], or transpor[t] in commerce or
affecting commerce * * * any firearm.'' 404 U.S., at 337.
The Court interpreted the possession component of
Sec. 1202(a) to require an additional nexus to interstate
commerce both because the statute was ambiguous and because
``unless Congress conveys its purpose clearly, it will not
be deemed to have significantly changed the federal-state
---------------------------------------------------------------------------
balance.'' Id., at 349.
514 U.S. at 561-62. In Bass itself, the Government argued that the
statute in question should be construed not to require proof that the
gun possession was in, or affected, interstate commerce. The Court
responded that the Government's proposed ``broad construction'' would
``render[] traditionally local criminal conduct a matter for federal
enforcement and would also involve a substantial extension of federal
police resources.'' 404 U.S. at 350. The Court accordingly construed
the statute to require ``proof of some interstate commerce nexus in
each case,'' so that the statute would not ``dramatically intrude[]
upon traditional state criminal jurisdiction'' id., in the way it would
if there were no requirement of proof in each case of the nexus to
interstate commerce.
The jurisdictional elements in section 249(a)(2)(B) would
ensure that each conviction under section 249(a)(2) would
involve conduct that Congress has the power to regulate under
the commerce clause. In Morrison, the Court reiterated its
observation in Lopez that there are ``three broad categories of
activity that Congress may regulate under its commerce power.''
120 S. Ct. at 1749 (quoting Lopez, 514 U.S. at 558):
First, Congress may regulate the use of the channels
of interstate commerce * * *. Second, Congress is
empowered to regulate and protect the instrumentalities
of interstate commerce, or persons or things in
interstate commerce, even though the threat may come
only from intrastate activities * * *. Finally,
Congress' commerce authority includes the power to
regulate those activities having a substantial relation
to interstate commerce, * * * i.e., those activities
that substantially affect interstate commerce.
Id. (quoting Lopez, 514 U.S. at 55859).
Proposed section 249(a)(2)(B)(i) would prohibit the violent
conduct described in section 249(a)(2)(A) where the Government
proves that the conduct ``occurs in the course of, or as the
result of, the travel of the defendant or the victim (a) across
state lines or national borders, or (b) using a channel,
facility, or instrumentality of interstate or foreign
commerce.'' A conviction based on such proof would be within
Congress' powers to ``regulate the use of the channels of
interstate commerce,'' and to ``regulate and protect * * *,
persons or things in interstate commerce.'' Proposed section
249(a)(2)(B)(ii) would prohibit the violent conduct described
in section 249(a)(2)(A) where the Government proves that the
defendant ``uses a channel, facility or instrumentality of
interstate or foreign commerce in connection with the
conduct''--such as by sending a bomb to the victim via common
carrier--and would fall within the power of Congress to
``regulate the use of the channels of interstate commerce'' and
``to regulate and protect the instrumentalities of interstate
commerce.'' \45\
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\45\ Such prohibitions are not uncommon in the Federal criminal
code. See, e.g., 18 U.S.C. 23 1(a)(2) (1994) (prohibiting the transport
in commerce of any firearm, explosive, or incendiary device, knowing or
having reason to know, or intending, that it will be used unlawfully in
furtherance of a civil disorder); 18 U.S.C. 875 (1994) (prohibiting the
transmission in interstate or foreign commerce of certain categories of
threats and ransom demands); 18 U.S.C. 1201(a)(1) (Supp. IV 1998)
(prohibiting the willful transportation in interstate or foreign
commerce of a kidnaping victim); 18 U.S.C. 1462 (1994 & Supp. 111996)
(prohibiting the transmission of obscene materials via common carrier);
18 U.S.C. 1952 (1994) (prohibiting travel in interstate or foreign
commerce, or the use of ``any facility in interstate or foreign
commerce,'' with the intent to commit or facilitate certain unlawful
activities).
---------------------------------------------------------------------------
Proposed section 249(a)(2)(B)(iii) would prohibit the
violent conduct described in section 249(a)(2)(A) where the
Government proves that the defendant ``employs a firearm,
explosive or incendiary device, or other weapon that has
traveled in interstate or foreign commerce in connection with
the conduct.'' \46\ Such a provision addresses harms that are,
in a constitutionally important sense, facilitated by the
unencumbered movement of weapons across State and national
borders, and is similar to several other Federal statutes in
which Congress has prohibited persons from using or possessing
weapons and other articles that have at one time or another
traveled in interstate or foreign commerce.\47\ The courts of
appeals uniformly have upheld the constitutionality of such
statutes.\48\ And, in Lopez itself, the Supreme Court cited to
the jurisdictional element in the statute at issue in United
States v. Bass, 404 U.S. 336 (1971), as an example of a
provision that ``would ensure, through case-by-case inquiry,
that the firearm possession in question affects interstate
commerce.'' 514 U.S. at 561. In Bass, 404 U.S. at 350-51, and
in Scarborough v. United States, 431 U.S. 563 (1977), the Court
construed that statutory element to permit conviction upon
proof that a felon had received or possessed a firearm that had
at some time passed in interstate commerce.
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\46\ We understand that this subsection would sanction the conduct
described in subparagraph (A) where, in connection with that conduct,
the defendant employs a firearm, an explosive or incendiary device, or
another weapon, that has traveled in interstate or foreign commerce.
\47\ For example:
It is unlawful for convicted felons to receive any
firearm or ammunition (18 U.S.C. 922(g) (1994 & Supp.
1999)), or to receive or possess any explosive (18 U.S.C.
842(i) (1994)), ``which has been shipped or transported in
interstate or foreign commerce.''
A statute enacted as a response to Lopez makes it
unlawful (with certain exceptions) for any individual
knowingly to possess or discharge a firearm ``that has
moved in or that otherwise affects interstate or foreign
commerce at a place that the individual knows * * * is a
school zone.'' 18 U.S.C. 922(q) (2)(3) (1994 & Supp. 1999).
It is unlawful, with the intent to cause death or serious
bodily harm, to engage in certain so-called carjackings of
motor vehicles that ``ha[ve] been transported, shipped, or
received in interstate or foreign commerce.'' 18 U.S.C.
2119 (West 2000).
It is unlawful knowingly to possess matters containing
any visual depiction that ``involves the use of a minor
engaging in sexually explicit conduct'' that ``has been
mailed, or has been shipped or transported in interstate of
foreign commerce, or which was produced using materials
which have been mailed or so shipped or transported, by any
means including by computer.'' 18 U.S.C. 2252(a)(4)(B)
(West Supp. 2000).
\48\ See, e.g., United States v. Folen, 84 F.3d 1103, 1104 (8th
Cir. 1996) (sec. 842(i)); Fraternal Order of Police v. United States,
173 F.3d 898, 90708 & n.2 (D.C. Cir.), and cases cited therein (sec.
922(g)), cert. denied, 120 S. Ct. 324 (1999); Gillespie v. City of
Indianapolis 185 F.3d 693, 704-06 (7th Cir. 1999), and cases cited
therein (same), cert. denied, 120 5. Ct. 934 (2000); United States v.
Bostic, 168 F.3d 718, 723-24 (4th Cir.), denied 527 U.S. 1029 (1999)
(same); United States v. Danks, 187 F.3d 643 (8th Cir. 1999) (per
curiam) (table), 1999 WL 6 15445 at * 1*2 (sec. 922(q)), cert. denied,
120 5. Ct. 823 (2000); United States v. Cobb, 144 F.3d 319, 32022 (4th
Cir. 1998), and cases cited therein (sec. 2119); United States v.
Bausch, 140 F.3d 739, 741 (8th Cir. 1998) (sec. 2252(a)(4)(B)), denied
525 U.S. 1072 (1999); United States v. Robinson, 137 F.3d 652, 65556
(1st Cir. 1998) (same).
---------------------------------------------------------------------------
Proposed section 249(a)(2)(B)(iv)(I) would apply only where
the Government proves that the violent conduct ``interferes
with commercial or other economic activity in which the victim
is engaged at the time of the conduct.'' This is one specific
manner in which the violent conduct can affect interstate or
foreign commerce.\49\ This jurisdictional element also is an
exercise of Congress' power to regulate ``persons or things in
interstate commerce.'' Morrison, 120 5. Ct. at 1749 (quoting
Lopez, 514 U.S. at 558). As Justice Kennedy (joined by Justice
O'Connor) wrote in Lopez, 514 U.S. at 574, ``Congress can
regulate in the commercial sphere on the assumption that we
have a single market and a unified purpose to build a stable
national economy.'' \50\
---------------------------------------------------------------------------
\49\ See, e.g., United States v. Nguyen, 155 F.3d 1219, 122425
(10th Cir. 1998), cert. denied 525 U.S. 1167 (1999); see also, e.g.,
United States v. Thomas, 159 F.3d 296, 297-98 (7th Cir. 1998), cert.
denied, 527 U.S. 1023 (1999).
\50\ In this regard, it is worth noting that at least eight
Justices in Morrison and in Lopez indicated that Congress can take a
broad view as to what constitutes ``commercial'' or ``economic''
activity. See Morrison, 120 S. Ct. at 1750 (listing, as examples of
``congressional Acts regulating intrastate economic activity,'' the
statutes at issue in Wickard v. Filburn, 317 U.S. 111 (1942)
(restricting the intrastate growing of wheat on a farm for personal
home consumption); and Perez v. United States, 402 U.S. 146 (1971)
(prohibiting intrastate loansharking); id. at 1750 n.4 (describing the
statute in Wickard as ``regulat[ing] activity * * * of an apparent
commercial character''); id. at 1765 (Souter, J., dissenting); see also
Lopez, 514 U.S. at 560-61; id. at 573 (Kennedy, J., dissenting); id. at
628-30 (Breyer, J., dissenting).
---------------------------------------------------------------------------
Finally, proposed section 249(a)(2)(B)(iv)(II) would
prohibit the violent conduct described in section 249(a)(2)(A)
where the Government proves that the conduct ``otherwise
affects interstate or foreign commerce.'' Such ``affects
commerce'' language has long been regarded as the appropriate
means for Congress to invoke the full extent of its authority.
See, e.g., Jones v. United States, 120 5. Ct. 1904 (2000), No.
99-5739, slip op. at 5 (May 22, 2000) (``the statutory term
`affecting * * * commerce,' * * * when unqualified, signal[s]
Congress' intent to invoke its full authority under the
Commerce Clause''); Allied-Bruce Terminix Cos. v. Dobson, 513
U.S. 265, 273 (1995) (``Th[e] phrase--`affecting commerce'--
normally signals Congress' intent to exercise its Commerce
Clause powers to the full.'').\51\ Of course, that this element
goes to the extent of Congress' constitutional power does not
mean that it is unlimited. Interpretation of the ``affecting *
* * commerce'' provision would be addressed on a case-by-case
basis, within the limits established by the Court's doctrine.
There likely will be cases where there is some question whether
a particular type or quantum of proof is adequate to show the
``explicit'' and ``concrete'' effect on interstate and foreign
commerce that the element requires. See Harrington, 108 F.3d at
1464, 1467 (citing Lopez, 514 U.S. at 562, 567). But on its
face this element is, by its nature, within Congress' commerce
clause power.\52\
---------------------------------------------------------------------------
\51\ Such a jurisdictional element is found in many Federal
statutes, including criminal provisions that prohibit violent conduct
or conduct that facilitates violence. See, e.g.:
18 U.S.C. 231(a)(1) (1994) (prohibiting the teaching or
demonstration of the use or making of firearms, explosives,
or incendiary devices, or of techniques capable of causing
injury or death, knowing or having reason to know or
intending that the teaching or demonstration will be
unlawfully employed in, or in furtherance of, a civil
disorder ``which may in any way or degree obstruct, delay,
or adversely affect commerce or the movement of any article
or commodity in commerce'');
18 U.S.C.A. 247 (a)(b) (West 2000) (prohibiting the
intentional defacement, damaging or destruction of
religious real property because of the religious character
of that property, and the intentional obstruction by force
or threat of force of any person in the enjoyment of that
person's free exercise of religious beliefs, where ``the
offense is in or affects interstate or foreign commerce'');
18 U.S.C.A. 2332(a)(2) (West Supp. 2000) (prohibiting the
use, without lawful authority, of a weapon of mass
destruction, including any biological agent, toxin, or
vector, where the results of such ``affect interstate or
foreign commerce'').
---------------------------------------------------------------------------
\52\ See United States v. Green, 350 U.S. 415, 420 21 (1956)
(upholding constitutionality of Hobbs Act, 18 U.S.C. 1951(a) (1994)--
which prohibits robbery or extortion that ``in any way or degree
obstructs, delays, or affects commerce or the movement of any article
or commodity in commerce''--because ``racketeering affecting interstate
commerce [is] within federal legislative control''); see also United
States v. Valenzeno, 123 F.3d 365, 36768 (6th Cir. 1997) (affirming
that Lopez did not affect constitutionality of Hobbs Act); United
States v. Robinson, 119 F.3d 1205, 121214 (5th Cir. 1997) (same), cert.
denied, 522 U.S. 1139 (1998).
---------------------------------------------------------------------------
In sum, because section 249(a)(2) would prohibit violent
conduct in a ``discrete set'' of cases, 120 S. Ct. at 1751
(quoting Lopez, 514 U.S. at 562), where that conduct has an
``explicit connection with or effect on'' interstate or foreign
commerce, id., it would satisfy the constitutional standards
articulated in the Court's recent decisions.\53\
---------------------------------------------------------------------------
\53\ Any argument that Morrison sub silentio implies that Congress
lacks any power whatever under the commerce clause to regulate violent
crime (or that Congress may do so only where each violation by itself
``substantially affect'' interstate or foreign commerce), is
unwarranted. For reasons explained above, the presence of a
jurisdictional element materially distinguishes a statute such as
proposed sec. 249(a)(2) from the statutes at issue in Lopez and in
Morrison. The Court in Morrison explained that such an element helps to
ensure that the statute will reach only ``a discrete set'' of offenses,
and will not extend to conduct that lacks an ``explicit connection with
or effect on interstate commerce.'' 120 Ct. at 1751 (quoting Lopez, 514
U.S. at 562). What is more, the findings in sections 2 (6)(9) of the
draft bill would, if adopted by Congress, reflect Congress' conclusion
that the bill's proposed sec. 249(a)(2) is appropriate legislation
under each of the three commerce clause ``categories'' identified in
Lopez and in Morrison. Section 2(6) would find that the violence in
question ``substantially affects interstate commerce in many ways,
including--(A) by impeding the movement of members of targeted groups
and forcing such members to move across State lines to escape the
incidence or risk of such violence; and (B) by preventing members of
targeted groups from purchasing goods and services, obtaining or
sustaining employment or participating in other commercial activity.''
Sections 2 (7)(9) would find that perpetrators ``cross State lines to
commit such violence,'' use the channels, facilities and
instrumentalities of interstate commerce to commit such violence, and
use articles that have traveled in interstate commerce to commit such
crimes. While such findings might not in and of themselves be
``sufficient'' to justify Congress' assertion of its commerce clause
authority, see Morrison, 120 5. Ct. at 1752, nevertheless they would
provide important support for Congress' authority under the commerce
clause to enact the draft hate-crimes bill's proposed 249(a)(2), see
120 S. Ct. at 1751 (citing Lopez, 514 U.S. at 563).
---------------------------------------------------------------------------
The Office of Management and Budget has advised that there
is no objection from the standpoint of the administration's
program to the presentation of this letter.
Sincerely,
Robert Raben,
Assistant Attorney General.
VI. Not All Crimes Are Hate Crimes
Opponents of the hate crimes bill often argue that ``any
crime of violence is a hate crime,\54\ and that the motives
behind and harms caused by a hate crime are not relevant or
distinguishable from other crimes. This view, however, is not
supported by history or Supreme Court precedent. Not all crimes
are created equal, and mental states--not just acts--have
always been an important factor in determining the severity of
a crime.
---------------------------------------------------------------------------
\54\ Statement of Senator Inhofe, Congressional Record, June 21,
2000.
---------------------------------------------------------------------------
Today, motive permeates the criminal law in two contexts:
as proof of an element of an offense and in sentencing. As an
example of the former, under Federal law, the ``unlawful
killing of a human being'' constitutes manslaughter.\55\ But if
the same killing is done ``with malice aforethought,'' the
crime is murder and a more severe punishment can be levied.\56\
Proof that the perpetrator intentionally selected the victim
and thus premeditated the crime suffices to show the additional
element necessary to establish murder. An additional example of
where motive is relevant is the crime of burglary. If one
simply enters a building, he or she is guilty of trespass, a
misdemeanor.\57\ However, if one enters the building with the
motive of committing a felony (e.g. larceny) inside, he or she
is guilty of burglary, a felony.\58\
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\55\ 18 U.S.C. 1112.
\56\ 18 U.S.C. 1111.
\57\ See, e.g., N.Y. Penal Law Sec. 140.10.
\58\ See, e.g., N.Y. Penal Law Sec. 140.20.
---------------------------------------------------------------------------
As the Supreme Court recognized in Payne v. Tennessee, 501
U.S. 808, 819-20 (1991):
The assessment of harm caused by the defendant as a
result of the crime charged has understandably been an
important concern of the criminal law, both in
determining the elements of the offense and in
determining the appropriate punishment. * * * Wherever
judges in recent years have had discretion to impose
sentence, the consideration of the harm caused by the
crime has been an important factor in the exercise of
that discretion.
[I]n evaluating the gravity of the offense, it is
appropriate to consider ``the harm caused or threatened
to the victim or society,'' based on such things as the
degree of violence involved in the crime and ``the
absolute magnitude of the crime,'' and ``the
culpability of the offender,'' including the degree of
requisite intent and the offender's motive in
committing the crime.
(quoting Solem v. Helm, 463 U.S. 277, 292-94 (1983).
Recognizing these notions, it is well established that a
legislature can properly determine that crimes committed
against certain classes of individuals are different or warrant
a stiffer response. See, e.g., 18 U.S.C. 2251 (criminal
penalties for sexual exploitation of children); 18 U.S.C. 1751
(criminal penalties for assassination, kidnaping, or assault of
the President or Presidential staff.) In fact, the most extreme
example is the Federal law against genocide. That law applies
to anyone who targets ``a national, ethnic, racial, or
religious group'' for certain acts of criminal violence ``with
the specific intent to destroy [that group] in whole or in
substantial part.'' 18 U.S.C. 1091(a).
In fact, several States that lack hate crimes statutes have
laws on their books that treat crimes differently based upon
whether the victim belongs to a particular class. For example,
in Arkansas, it is considered more serious to injure a child, a
senior citizen, or a pregnant woman than another individual.
See, A.C.A. Sec. 513201. That is also true if one injures a
policeman, a teacher, or a doctor. See, A.C.A. Sec. 513202. One
can even receive an enhanced sentence for physically abusing a
high school football referee. See, A.C.A Sec. 513209. Likewise,
in Indiana, it is considered more serious to commit a battery
against a law enforcement officer, an employee of a penal
facility or a firefighter than other individuals. Similarly, it
is considered a felony to cause injury to a child, a disabled
individual, a health care professional, school personnel, or a
health care provider. But, it is only a misdemeanor if one
causes injury to anyone else not included in the above
mentioned classes. See I.C. Sec. 354221. In New Mexico,
pregnant women and school personnel are singled out as classes
of people for which an individual can receive an enhanced
sentence. See NM Sec. 3037, Sec. 3039. Finally, in South
Carolina it is considered more serious to injure school
personnel, correctional facility employees, emergency service
providers, firefighters, and home health care workers. See SC
St Sec. 16312, Sec. 163630, Sec. 163635. As these statutes
show, it is quite appropriate for a legislature to determine
that certain crimes, because of the nature of harm caused or
the status of the victim, are more serious than parallel
offenses.
This Committee believes that hate crimes are different than
other crimes and often cause unique harms. As Senator Hatch
stated, ``[l]et me state unequivocally that as much as we
condemn all crime, hate crime can be more sinister than non-
hate crime. A crime committed not just to harm an individual
but out of motive of sending a message of hatred to an entire
community, oftentimes a community defined on the basis of
immutable traits, is appropriately punished more harshly or in
a different manner than other crimes.'' \59\ Senator Hatch is
not alone in articulating this view.
---------------------------------------------------------------------------
\59\ Judiciary Committee hearing on Combating Hate Crimes, May 11,
1999.
---------------------------------------------------------------------------
In fact, the Supreme Court has stated that ``the true
measure of crimes is the injury done to society.'' Payne, 111
S. Ct. 2597, 2605 (1991). And, the Court has specifically
stated that, with regard to the State's interests in
``[ensuring] the basic human rights of members of groups that
have historically been subjected to discrimination, including
the right of such members to live in peace where they wish, we
do not doubt that these interests are compelling.'' R.A.V., 112
S. Ct. at 2549.
With specific regard to hate crime legislation, in
Wisconsin v. Mitchell, the Court unanimously recognized that
bias-inspired conduct inflicts greater individual and societal
harm. The Court adopted the position articulated in several
amici that ``bias-motivated crimes are more likely to provoke
retaliatory crimes, inflict distinct emotional harms on their
victims, and incite community unrest.'' 508 U.S. 476, 487.
Moreover, the impact of bias motivated crimes on the larger
community is grave. As Justice Stevens notes in his concurring
opinion in R.A.V., 505 U.S. at 377:
One need look no further than the recent social
unrest in the Nation's cities to see that race-based
threats cause more harm to society and to individuals
than other threats. Just as the statute prohibiting
threats against the President is justifiable because of
the place of the President in our social and political
order, so a statute prohibiting race-based threats is
justifiable because of the place of race in our social
and political order.
VII. Examples of Violent Hate Crimes Not Covered by Existing Law
December 1993, Humboldt, NE
On Christmas Day in 1993, Brandon Teena, 21, was raped and
beaten by two male ``friends'' who discovered that Brandon, who
had been living as a male, was anatomically female. Teena, born
Teena Brandon, was anticipating undergoing gender reassignment
surgery. The men threatened to kill Teena if he went to the
authorities to report the rape. Despite these threats, Teena
reported the crime to the police. Even so, the county sheriff,
who referred to Teena as ``it,'' did not allow his deputies to
arrest the two men. Five days later the two men sought out
Teena and shot and stabbed him to death. His mother later filed
a civil suit against the county in which the court found that
the county was partially responsible for Teena's death because
the two men were not arrested after the report of the rape. The
court characterized the sheriff's behavior as ``extreme and
outrageous.''
January 1999, Port Monmouth, NJ
E.K. a mentally disabled man was kidnapped by a group of
nine men and women and was tortured for 3 hours, then dumped
somewhere with a pillowcase over his head. While captive, he
was taped to a chair, his head was shaved, his clothing was cut
to shreds, and he was punched, whipped with a string of beads,
beaten with a toilet brush, and, possibly, sexually assaulted.
Prosecutors believe the attack was motivated by disability
bias.
February 15, 1999, Yosemite National Park, CA
A man bound, gagged, and eventually killed a woman, her
daughter, and a young woman friend in the women's hotel room
just outside Yosemite National Park in Northern California. The
bodies of the mother and the young friend were found a month
later in the trunk of their car, so badly burned that the cause
of death was difficult to establish. The daughter's body was
found nearby, her throat slashed so deeply she was nearly
decapitated. According to the murderer, he sexually assaulted
her for hours before killing her. A few months later the same
man struck in Yosemite again, attacking a young woman in her
home. After an intense struggle the man decapitated the young
woman and dumped her body in a stream behind the home. He has
since confessed to all the murders, explaining that he has
fantasized about killing women for the last 30 year. He did not
know any of his victims; he admittedly targeted them simply
because they were women.
January 2000, Boston, MA
A group of high school teenagers sexually assaulted and
attacked a 16-year-old Boston High School student on the subway
because she was holding hands with another young girl, a common
custom in their native African country. Thinking the victim was
a lesbian, the group began groping the girl, ripping her
clothes and pointing at their own genitals, while shouting ``Do
you like this? Do you like this? Is this what you like?'' When
the girl resisted, according to officials, one of the teenagers
allegedly pulled a knife on the girl, held it to her throat and
threatened to slash her if she didn't obey her attackers. The
girl passed out from being beaten.
May 2000, Salt Lake City, UT
A 19-year-old woman working for the Southern Utah
Wilderness Alliance in Salt Lake City was beaten and robbed
because her attackers presumed she was a lesbian. The woman was
canvassing when a male attacker in his 20's, one of two white
men with shaved heads, came running up behind her, punched her
in the face, knocking her down. The women said the suspect then
kicked her in the face while he yelled ``dyke'' and ``queer.''
Initially, police response was slow, and the incident was not
being treated as a hate crime. After pressure from local
activists, police have said they are investigating the case as
a potential hate crime.
June 2000, New York, NY
Amanda Milan, a 27-year-old transgender woman died after
her throat was slashed with a knife outside of the Port
Authority in New York City. Witnesses say that a group of cab
drivers cheered, applauded and shouted transgenderphobic
remarks as the crime was committed. One of the perpetrators
allegedly shouted phrases like ``You're a man!'' and ``I know
that's a dick between your legs.''
February 11, 2001, Rifle, CO
Kyle Skyock, a slightly built 16-year-old, was found
unconscious by a jogger on the side of the road after being
beaten by four teenage boys because they thought he was gay, he
said. Skyock's injuries included: large purple bruises on the
front and back of his head; a fractured skull; a circle of burn
blisters on his shoulder; a black eye; three broken ribs; a
foot-shaped bruise on his stomach; another bruise described by
doctors as in the shape of a two-by-four. Skyock claims to have
left a party with the four boys in a four-wheel-drive vehicle.
Eventually, the car stopped, Skyock said, and he was pulled
from the vehicle and thrown to the ground, and the boys started
kicking him. They picked him up, ramming his head into the
tailgate. They threw him back in the vehicle and punched him
some more. They pulled him out and kicked him again.
``Faggot,'' ``I want a turn with the bat! Give it to me. It's
my turn, it's my turn,'' he said he heard. Police initially
have said they believe that Skyock was drunk, and his injuries
were a result of falling down. Skyock's family has been
critical of how the police have handled the case and have said
that after the incident one of the alleged perpetrators
reportedly bragged on the school bus that he had beaten up a
``fag.'' After 7 months, police finally interviewed Skyock
after his family hired an attorney to pursue charges being
filed against the alleged perpetrators. Previously, they
refused to talk to him because they said his mother insisted on
having an adult present with him. As of April 2002, no charges
have been filed, and the family has filed a civil case against
the alleged perpetrators (Rocky Mountain News, August 27 and
30, 2001.)
May 25, 2001, Honolulu, HI
Two teens were charged with attempted murder after
allegedly dousing the tents of gay campers, while people were
inside, with flammable liquid and setting one on fire in
Polihale State Park. Police believe the crime is a hate crime
based on ``insinuations and remarks'' made by the suspects at
the time. Victims in the attack said the perpetrators threw
rocks and shouted homosexual slurs at about 20 men prior to
setting the tent on fire. Two men, Eamonn Carolan, 18, and
Orien Macomber, 19, were each sentenced for 5 years in prison
each. (Associated Press, June 2, 2001; KITV
TheHawaiiChannel.com, June 1, 2001; Kauai World, Jan. 21,
2002.)
June 6, 2001, Chicago, IL
A young Chicago man is accusing police of ignoring his
pleas for help after gay-bashing incident in May that ended
with his being criminally charged. Benjamin Stephens, a 21-
year-old North Sider, said that he was out to dinner with a
friend when three men lured him from the restaurant, beat him
and called him ``faggot.'' A stranger saw the incident and
drove to the police station, where he said officers refused to
help find the men who'd attacked him. Stephens said he became
angry, and officers arrested him, hitting him and shoving him
around. The incident comes on top of a suit filed earlier this
year by a man who says he was beaten by off-duty Chicago police
officers because they mistakenly thought he was gay. An Amnesty
International report released earlier this year titled,
``Allegations of homophobic abuse by Chicago police officers,''
alleges a series of antigay incidents, involving abuse and
torture by Chicago police over the past few years. (Windy City
Times, June 6, 2002; Chicago Tribune, Jan. 12, 2001;
www.Amnesty.org, June 5, 2001.)
June 9, 2001, Washington, DC
Alexander Gray, 22, was reportedly jumped and beaten by a
group of men who called him ``faggot'' hours before he was
fatally shot by a DC police officer. Police are calling the
beating a probable hate crime and have identified several
suspects. Emergency medical technicians (EMT) and police
reportedly found Gray laying on the sidewalk, crying in
southeast Washington in response to a call. Gray told them
about the attack. Gray, who had a cut over his eye and a gash
on his head, refused medical treatment and an offer to be taken
to the hospital for observation. Gray was reportedly handcuffed
and placed in a police car after he began cursing officers and
threatened to assault several bystanders. Police drove him
home, but Gray stopped by a neighbor's house after being
dropped off. The neighbor called 911 after Gray began spitting
up blood. EMT's responded and again examined him; again, he
refused treatment and said that ``all he wanted to do was to go
home and lie down.'' He reportedly started walking home but was
soon being followed by two police officers, who told him he was
not dressed appropriately, as his pants were torn, possibly due
to the assault, and his underwear was exposed. He began to jog;
the officers chased him and later shot him because they said he
was wielding a knife at some people who were playing dice.
Witnesses say they never saw a knife. Police have launched an
investigation into the shooting, and the U.S. Attorney's office
has convened a grand jury to look at the shooting. (Washington
Blade, June 29, July 6, Dec. 21, 2001.)
August 26, 2001, Leawood, KS
Gary D. Raynal, an openly-gay, 44-year-old man, was found
dead under an apartment deck after being tortured and severely
beaten by at least two people, according to police. Raynal had
been sexually tortured with a metal rod, according to his
sister, Sandra Sheppard, and officials familiar with the
investigation. His ears had also been burned, and he might have
been strangled. His sister thinks he was killed because he was
gay. Police have said they have suspects in the case and are
investigating the possibility that antigay bias may have played
a role in the crime. (Kansas City Star, Aug. 30 and Sept. 1,
2001, Interview with Police Sergeant Scott Hansen, Sept. 6,
2001.)
September 2001, San Antonio, TX
Al Everton, 74, was attacked by a man yelling antigay
epithets and hit in the head with a baseball bat as he walked
his dog at 3 a.m. Everton, along with his partner, Al Thurk,
reported the incident to police the next day, describing the
attacker and what he was wearing in great detail and informing
police that they thought it might be one of their neighbors.
The neighbor had been questioning the couple about their
relationship in the weeks before the attack and making antigay
comments. Everton was treated and released at a local hospital.
Sore and bruised from the attack and already in frail health,
Everton was bedridden afterwards. His condition declined
rapidly, and he died a few weeks later. According to a news
report, no charges have been made; no searches done for the
possible weapon; and no description of the alleged perpetrator
can be found in the police report despite it being given to
them. (San Antonio Current, Feb. 14, 2002.)
September 2, 2001, Athens, GA
Christopher Gregory, a 20-year-old gay man was left with
facial injuries after being attacked in an antigay incident
outside a gay bar. Gregory was walking with friends when group
of approximately four men and three women began shouting
antigay epithets at them, such as ``faggot,'' ``look at those
faggots,'' and ``[expletive]-packers.'' After he turned and
said, ``Leave us alone!'' one of the men allegedly punched him
in the right eye, sending him to the concrete. He did not see
the punch coming and landed on his face. As the alleged
perpetrators walked away, one yelled, ``stupid faggot.''
Gregory was treated at a local hospital and reported the
incident to police. He said the police were ``anything but
sympathetic'' and were more concerned with his alcohol
consumption than details about the bashing. The police filed
the report as a hate crime that was alcohol related, have not
interviewed witnesses and do not have any suspects, according
to new reports. (Southern Voice, Sept. 13, 2001.)
September 6, 2001, Madison, WI
Two men were arrested on the University of Wisconsin campus
for their part in attempting to strangle a gay man. The
Reverend Chuck Spignola brought a group to campus to talk about
abortion and homosexuality. One of his followers allegedly told
a gay man that his time had come to go to hell and started
choking him. Spignola himself had been arrested in June 2000 in
an incident where he poured gasoline on a security volunteer at
a gay pride parade in Columbus, OH. The volunteer had just
asked Spignola to step away from participants when he sprayed
her with gas. ``You're all gonna burn in hell,'' he yelled. He
then set fire to a rainbow-colored gay pride flag, which he had
done on several earlier occasions. (WISC Channel3000.com, Sept.
7, 2001; www.tolerance.org website, Sept. 7, 2001.)
October 7, 2001, Palm Springs, CA
Eric Bridge, a 22-year-old man, told police he was robbed
and beaten unconscious by four men who chased him from a
downtown bar after accusing him of being gay and hurling
antigay slurs at him. Bridge was treated for cuts and bruises
at a local medical center and released. The victim said he
wasn't gay but believes he was targeted based on perception.
(Washington Blade, Oct. 19, 2001.)
October 11, 2001, College Park, MD
University of Maryland campus police are investigating a
violent hate crime that occurred on National Coming-Out Day.
Around 1 p.m. a 22-year-old woman wearing gay-supportive pins
was hanging her bicycle on her rack when a man approached her
from behind and struck her on the back of her head, pushing her
head into the rack and knocking her to the ground. The white
male kicked her several times while she was on the ground as he
hurled antilesbian epithets and expletives, according to the
police. The woman, who was treated at the University health
center sustained a black eye, a bruise on her nose and
scratches on her legs and arms. The woman only saw the man's
leg, and police have no suspects. (Prince George's Journal,
Oct. 14, 2001, Washington Blade, Oct. 19, 2001.)
November 2, 2001, Cedaredge, CO
Local authorities opened the files into the investigation
of the October 2000 shooting death of a gay man, Steve Ruck,
31, in response to legal pressure from a local newspaper.
Authorities ruled the death as a suicide, but hazy details and
unanswered questions about the incident have led local gay-
rights groups to say that it might have been a hate crime. Ruck
died of a gunshot wound to the head and was in the bedroom of a
neighbor, Bobby Wells, when the shooting occurred. Ruck and
Wells had spent the day golfing and drinking and both were
intoxicated at the time of his death. Wells gave authorities
numerous accounts of what happened before the shooting.
Initially, he said he was not in the trailer when Ruck died.
Later, he said he and Ruck were lying on the bed in the dark,
and he did not see Ruck shoot himself. He also said they were
sitting in the bedroom when the shot occurred. He also that
Ruck had at one point placed a loaded pistol to his head.
Ruck's blood was splattered on Well's clothing and feet showing
that he was 4 to 6 feet away from the victim at the time of the
shooting. Wells said he is not gay and has no animosity toward
gays. He said in one interview that he had no idea that Ruck
was gay. In another he said he might have heard he was. (Denver
Post, Nov. 2, 2001.)
VIII. Conclusion
The enactment of the Local Law Enforcement Enhancement Act
of 2001 will significantly increase the ability of State and
Federal law enforcement agencies to work together to solve and
prevent a wide range of violent hate crimes committed because
of bias based on the actual or perceived race, color, national
origin, religion, sexual orientation, gender, or disability of
the victim. This bill is a necessary, thoughtful, and measured
response to the critical problem of hate-motivated violence
facing our Nation.
IX. Cost Estimate
In compliance with paragraph 11(a) of rule XXVI of the
standing Rules of the Senate, the Committee sets forth, with
respect to the bill, S. 625, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 403 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 7, 2001.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 625, the Local Law
Enforcement Enhancement Act of 2001.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Mark
Grabowicz (for federal costs) and Shelley Finlayson (for the
state and local impact).
Sincerely,
Dan L. Crippen, Director.
Enclosure.
congressional budget office--cost estimate
S. 625--The Local Law Enhancement Act of 2001
Summary
S. 625 would establish certain hate crimes as new federal
offenses and would direct the U.S. Sentencing Commission to
consider increasing prison sentences for certain hate crimes
involving juveniles. The bill also would authorize the
appropriation of:
<bullet> $5 million for each of fiscal years 2002 and 2003
for the Department of Justice (DOJ) to make grants to
state and local governments to investigate and
prosecute hate crimes;
<bullet> Such sums as may be necessary for DOJ to make grants
to state and local governments to combat juvenile hate
crimes; and
<bullet> Such sums as may be necessary for fiscal years 2002
through 2004 for additional personnel in DOJ and the
Department of the Treasury to prevent, investigate, and
prosecute hate crimes.
Assuming appropriation of the authorized and estimated
amounts, CBO estimates that implementing S. 625 would cost $20
million over the 2002-2006 period. This legislation could
affect direct spending and receipts; therefore, pay-as-you-go
procedures would apply.
S. 625 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would benefit state, local, and tribal governments. The
bill would establish grant programs and authorize the Attorney
General to provide assistance to combat hat crimes. Any costs
incurred by these governments would be the result of complying
with grant conditions and would be voluntary.
Estimated cost to the Federal Government
The estimated budgetary impact of S. 625 is shown in the
following table. The costs of this legislation fall within
budget function 750 (administration of justice).
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
[By fiscal year, in millions of dollars]
------------------------------------------------------------------------
2002 2003 2004 2005 2006
------------------------------------------------------------------------
Estimated authorization level... 10 10 (\1\) 0 0
Estimated outlays............... 2 7 7 4 0
------------------------------------------------------------------------
\1\ Less than 500,000.
Basis of estimate
Based on information from the Department of Justice, CBO
assumes that the bill's authorization for grants to combat
juvenile hate crimes would cost an additional $5 million for
each of fiscal years 2002 and 2003--the same amount that the
bill would authorize for grants to state and local governments
to combat hate crimes. We assume that the necessary amounts
will be appropriated by the start of each fiscal year and that
outlays will follow the historical rates for similar grant
programs.
Based on information from the U.S. Sentencing Commission,
CBO expects that the new federal hate crimes established by the
bill would apply to well under 50 cases annually. Thus, any
increase in costs to DOJ, the Department of the Treasury, and
the federal judiciary for law enforcement, court proceedings,
or prison operations would be less than $500,000 annually,
subject to the availability of appropriated funds.
Because those prosecuted and convicted under S. 625 could
be subject to criminal fines, the federal government might
collect additional fines if the legislation is enacted.
Collections of such fines are recorded in the budget as
governmental receipts (revenues), which are deposited in the
Crime Victims Fund and later spent. CBO expects that any
additional receipts and direct spending would be negligible
because of the small number of cases involved.
Pay-as-you-go considerations
The Balanced Budget and Emergency Deficit Control Act
specifies pay-as-you-go procedures for legislation affecting
direct spending and receipts. These procedures would apply to
S. 625 because it would affect both direct spending and
receipts, but CBO estimates that the annual amount of such
changes would not be significant.
Estimated impact on state, local, and tribal governments
S. 625 contains no intergovernmental mandates as defined in
UMRA and would benefit state, local, and tribal governments.
The bill would authorize the Attorney General to provide
assistance to state and tribal governments in investigating and
prosecuting hate crimes. The bill would authorize the Attorney
General to award $5 million in each of fiscal years 2002 and
2003 to state, local, and tribal governments to defray up to
$100,000 of the costs associated with investigating and
prosecuting a hate crime. It also would authorize grants to be
awarded to state and local governments with programs to combat
juvenile hate crimes. Any costs incurred by state, local, or
tribal governments would be the result of complying with grant
conditions and would be voluntary.
Estimated impact on the private sector
S. 625 contains no private-sector mandates as defined in
UMRA.
Estimate prepared by: Federal Costs: Mark Grabowicz.
Impact on State, Local, and Tribal Governments: Shelley
Finlayson.
Impact on the Private Sector: Paige Piper/Bach.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
X. Regulatory Impact Statement
In compliance with paragraph 11(b)(1), rule XXVI of the
Standing Rules of the Senate, the Committee, after due
consideration, concludes that S. 625 will not have significant
regulatory impact.
XI. MINORITY VIEW OF SENATOR HATCH
i. introduction
Crimes motivated by hate are especially sinister because
they are motivated not only by a desire to harm an individual,
but also by an intent to send a message of hatred to an entire
community--a community often defined on the basis of immutable
traits. The brutal murders of James Byrd and Matthew Shepard,
among others, remain seared into our nation's conscience
because of the savagery they suffered solely because of their
attackers' irrational, hateful prejudice.
Such atrocities in many instances are appropriately
punished more harshly than other crimes. It is a long-standing
principle of criminal justice--as reaffirmed recently by the
United States Supreme Court in a unanimous decision upholding
Wisconsin's sentencing enhancement for hate crimes--that the
worse a criminal defendant's motive, the worse the crime. See
Wisconsin v. Mitchell, 508 U.S. 476 (1993). In addition, hate
crimes cause greater harm because they are more likely to
provoke retaliatory crimes and community unrest, and they
inflict deep, lasting, and distinct injuries--some of which
never heal--on victims and their family members. In light of
these concerns, the United States Sentencing Commission has
established a sentencing guideline that provides for an
enhanced sentence for a federal defendant whose crime was
motivated by hate. See USSG Sec. 3A1.1.
While states must retain their traditional, primary role in
criminal law enforcement, the federal government has an
obligation to play a significant role in the nation's efforts
against such crimes. The melting pot of America has proved to
be the most successful multi-ethnic, multi-racial, and multi-
faith country in all of recorded history. Unlike other
countries riven by racial, ethnic, or religious conflict,
Americans of all stripes have come to respect the diversity
that makes our nation so vibrant. Hate crimes, because they
corrode the bonds that bind us as a nation, must be a national
priority.
Properly circumscribed, Congress' role in fighting hate
crimes should not be a cause for concern. During and just
preceding this past generation, Congress has been the engine of
progress in securing America's civil rights achievements and in
driving us as a society increasingly closer to the goal of
equal rights for all under the law. Congress protected
Americans from employment discrimination on the basis of race,
sex, color, religion, and national origin with the passage of
the Civil Rights Act of 1964; Congress protected Americans from
gender-based discrimination in rates of pay for equal work with
the Equal Pay Act of 1963; and from age discrimination with the
passage of the Age Discrimination in Employment Act of 1967;
and in 1990, Congress extended protections to the disabled with
the passage of the Americans With Disabilities Act. Most
recently, in 1996, Congress passed the Church Arson Protection
Act which, among other things, criminalized the destruction of
any church, synagogue, mosque, or other place of religious
worship because of the race, color, or ethnic characteristics
of an individual associated with that property.
Yet, despite our best efforts, discrimination against
people's own security--that most fundamental right to be free
from physical harm--continues to persist in many forms in this
country, but most sadly in the rudimentary and malicious form
of violence against individuals because of their identities.
Thus, the battle against hate crimes is and must be
America's fight. And despite the often contentious partisan
rhetoric surrounding the issue of federal hate crimes
legislation, there exists widespread agreement on these
fundamental points: hate crimes are insidiously harmful, they
should be vigorously prosecuted, and the federal government has
a role to play in reducing the incidence of these crimes in our
nation. The dispute, then, centers not on whether Congress
should act in this area, but rather on what should be done at
that national level.
Although well intentioned, S. 625, the Local Law
Enforcement Act of 2001, is the wrong approach. Without
sufficient justification, this legislation strains the
constitutional limitations imposed on Congress and supplants
the traditional powers of state and local law enforcement. Even
more troubling, the legislation would in many cases provide
less protection than existing laws to victims of violent hate
crimes. The Hatch substitute, on the other hand, would bring
progress in our fight against hate crimes without creating any
of these problems.
ii. failings of the local law enforcement act of 2001
The Local Law Enforcement Act of 2001 would raise five
substantive policy concerns if enacted in its present form. The
majority of these problems proceed from the flawed and
unverified premise that underlies the legislation: states are
unable or unwilling to prosecute hate crimes. From that premise
the legislation proceeds to enact a new layer of unnecessary,
far-reaching federal criminal legislation.
A. Usurping the Traditional Police Power of the States
S. 625 would wreak havoc on one of the foundations of our
constitutional structure, namely, the first principles of
federalism that for more than two centuries have vested states
with primary responsibility for prosecuting crimes committed
within their boundaries. This legislation continues the
accelerating trend toward federalizing essentially local
criminal conduct--a trend that has provoked criticism from
distinguished legal commentators and organizations, including
the ABA and the Chief Justice of the United States.\60\
According to these critics, Congress should only federalize
local criminal conduct when the need is apparent and
demonstrated.\61\
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\60\ E.g., ``The Federalization of Criminal Law,'' Task Force on
the Federalization of Criminal Law, American Bar Association, Criminal
Justice Section (1998); William H. Rehnquist, Address to the American
Law Institute, Remarks and Addresses at the 75th Annual ALI Meeting,
May 1998, at 15-19 (1988), also excerpted in Chief Justice Raises
Concerns on Federalism, 30 The Third Branch, June 1998, at 1.
\61\ The Federalization of Criminal Law,'' at 12.
---------------------------------------------------------------------------
Here, though the need is neither apparent nor
demonstrated,\62\ S. 625 would make every violent crime
motivated by animus toward certain classes a federal matter.
Forty-five states and the District of Columbia already have
enacted hate crimes laws, and by any measure they are
aggressively and effectively prosecuting these cases. We
certainly are open to being persuaded that the states are
failing to prosecute these crimes. But neither the majority's
views nor the record developed in support of this legislation
come close to making such a case.\63\ In fact, the record would
suggest quite another conclusion. The successful local
prosecutions of those who perpetrated the reprehensible murders
of Matthew Shephard in Laramie, WY, and James Byrd, Jr., in
Jasper, TX should stand as a testament to the fact that
wholesale federal intervention is not warranted.\64\
---------------------------------------------------------------------------
\62\ According to the most recent statistics available from the
Federal Bureau of Investigation, there were 19 reported ``hate-crimes''
murders in the United States in 2000. While this number is 19 too many,
it is far smaller than the 15,517 murders committed that year.
Similarly, there were 17 reported ``hate-crimes'' murders in 1999,
compared to the 15,533 murders committed that year.
\63\ The committee report cites 17 examples of ``violent hate
crimes not covered by existing [federal] law.'' Committee Report at 26-
31. As these examples were inserted into the report long after the May
1999 hearings on this bill, it is difficult to assess their real value.
It is crystal clear, however, that each of the 17 examples could be
prosecuted under existing state laws, for a violent assault is a crime
in every local jurisdiction throughout the United States. Even the most
cursory examination of these 17 examples, moreover, makes clear that
states are not forsaking their obligation to prosecute these serious
offenses. It is most telling that the report fails even to note where
the state and local prosecutions have been successful. For example, the
two perpetrators of the December 1993, Humboldt, NE example were
convicted and one was sentenced to death, while the other received life
in prison; the perpetrator of the February 15, 1999, Yosemite National
Park, CA example is currently on trial in which state prosecutors are
seeking the death penalty; and local prosecutors charged two suspects
with murder in the June 2000, New York, NY example. Some of the other
examples relied on by the majority are of dubious value. Where diligent
local investigations have uncovered no suspects (see, e.g., January
2000, Boston, MA; June 9, 2001, Washington, D.C.; August 26, 2001,
Leawood, KS; and September 2001, San Antonio, TX examples), there is no
reason to believe that S. 625 would lead to a different result. And the
November 2, 2001, Cedaredge, CO example, cited in the report as a death
some believed ``might have been a hate crime'' (Committee Report at
31), has been deemed by every independent law enforcement officer who
reviewed the facts--from the Coroner to the District Attorney to the
Chief of Police--as a suicide.
\64\ Oddly, the committee report cites these successful local
prosecutions to evidence the short-comings in current law. See
Committee Report at 7. This is so, the report concludes, because local
prosecutions can be stymied by a lack of resources. The answer to this
concern is appropriate federal funding--something we have never opposed
and, indeed, something we proposed to do in the Hatch substitute
amendment. The possible lack of local resources in some small number of
cases surely does not justify the far-flung jurisdictional power grab
in S. 625. Nor can one seriously contend otherwise. The committee
report itself favorably refers to the federal role in the prosecution
of the killers of James Byrd, Jr.--a feat that was accomplished under
current law. See Committee Report at 4.
---------------------------------------------------------------------------
Recognizing that the case for S. 625 cannot be made on the
basis of states' failure to vigorously bring these types of
prosecutions, the supporters of this bill conflate that alleged
concern with the difficulties presented by the existing federal
statute's requirement concerning ``federally protected
activities.'' \65\ See 18 U.S.C. Sec. 245(b)(2); Committee
Report at 5-6. But tellingly, the proposed legislation goes far
beyond merely fixing a troublesome jurisdictional requirement.
It instead proposes a wholesale jurisdictional grab by the
federal government of enforcement powers traditionally and
constitutionally reserved to the states.
---------------------------------------------------------------------------
\65\ Of course, there is nothing sinister about the ``federally
protected activities'' requirement in 18 U.S.C. Sec. 245(b)(2), which
was passed in 1968. Rather, the drafters of that legislation were
committed to crafting legislation that carefully balanced federalism
concerns with the need to protect the newly-won civil rights of our
nation's racial minorities. Furthermore, as any fair-minded student of
American history would attest, the need for the 1968 legislation was
infinitely more apparent than any proposed justification for S. 625.
All sides to this debate would agree, one hopes, that America has come
a long way since 1968.
---------------------------------------------------------------------------
Thus, rather than addressing a pressing need, this
legislation will be perceived by many as the federal
government's latest effort to enact criminal legislation driven
not by necessity, but political popularity. Federal involvement
is required where we find both an identifiable problem of
national concern and a structural incapacity of state and local
government to deal with that problem.\66\ At the same time, we
are obligated to and should avoid ``feel-good, do-something''
federal criminal legislation \67\ that overburdens the federal
criminal justice system and represents, at best, ``symbolic
gestures to appease the public rather than actual attempts to
reduce crime.'' \68\
---------------------------------------------------------------------------
\66\ See Franklin E. Zimring & Gordon Hawkins, Toward a Principled
Basis for Federal Criminal Legislation, 543 Annals Am. Acad. Pol. &
Soc. Sci., 15, 20-21 (1996).
\67\ See William N. Eskridge, Jr. & Philip P. Frickey, The Supreme
Court 1993 Term--Foreword: The Law as Equilibrium, 108 Har.L.Rev. 26,
71 (1994).
\68\ Nancy E. Marion, A History of Federal Crime Control
Initiatives 244 (1994).
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B. Federalizing Rapes and Sexual Assaults
The majority's inclusion of gender as a protected class in
the legislation dramatically heightens the federalism concerns
described above. Including gender threatens to expand federal
criminal jurisdiction throughout the country over every rape,
every domestic dispute, and every assault between genders.
This expansion of jurisdiction, too, is patently
unnecessary. The record with regard to this legislation is
deafeningly silent on the need for this massive expansion of
federal jurisdiction. One cannot seriously contend that states
have failed to fulfill their traditional role of prosecuting
such crimes. Indeed, the majority fails to identify a single
case where state or local authorities have refused to bring
appropriate charges. Simply stated, there is no record
established that would support the federalization of every case
motivated in part by gender. Notably, the Congress, despite
developing a record far more substantial than that found here,
has twice enacted legislation (in 1994 and 2000) to combat
violence against women that, though far-reaching, does not
reach the breadth of cases that S. 625 would subject to federal
jurisdiction.\69\
---------------------------------------------------------------------------
\69\ See 1994 Violence Against Women Act, Pub. L. No. 103-322;
Violence Against Women Act of 2000, Pub. L. No. 106-386.
---------------------------------------------------------------------------
C. Weakened Punishment for Victims of Hate Crimes
The third significant problem with this legislation is that
it actually threatens to weaken the punishment available for
the perpetrators of violent hate crimes. In the prosecutions of
the killers of James Byrd, Matthew Shepard, and Billy Jack
Gaither, local prosecutors and law enforcement officials were
able to consider seeking the death penalty. In the cases of
James Byrd and Billy Jack Gaither, the death penalty was
successfully pursued; in the case of Matthew Shepard, the
possibility of the death penalty led to an early plea bargain
that saved scarce local resources and resulted in life
sentences for both defendants. Right now, in a case in rural
northern California, state prosecutors are pursuing capital
charges against two brothers charged with murdering a gay
couple.\70\
---------------------------------------------------------------------------
\70\ See ``Williams Trial is Delayed Again,'' The Record
Searchlight, May 2, 2000.
---------------------------------------------------------------------------
S. 625, while federalizing hate crimes, authorizes nothing
more than life in prison for those who murder out of bigotry,
prejudice, or hatred. If the defendants in the murders of James
Byrd and Billy Jack Gaither had been prosecuted under S. 625,
they would not have received the death sentences that they
eventually received under state law. Had the case pending in
northern California been brought under this legislation, the
death penalty would not be available. S. 625 therefore would
provide a decided benefit to those who would commit these
heinous crimes. Not only would it undermine existing state
laws, but S. 625 also would substantially weaken their
protections. Consequently, this legislation would be less
likely to deter future hate crimes.
D. Practical Difficulties for State and Local Authorities
S. 625 will also create significant practical difficulties
for state and local prosecutors. Aside from having to determine
whether a crime qualifies as a hate crime (which can often be a
difficult task) prosecutors will now also have to determine
whether the case should be brought in state or federal court.
One wonders whether the supporters of this bill contemplate
that local authorities, upon learning that a suspect once made
racist statements, will have to halt their investigation and
locate an Assistant Attorney General here in Washington, D.C.
for further instructions. What is more, any particular crime
could, upon discovery of additional evidence, become a
potential hate crime at any stage in the investigation or
prosecution of a case. Besides being cumbersome, the structure
enacted by S. 625 does not facilitate an efficient division of
labor between federal, state, and local law enforcement
entities.
Moreover, the legislation will have a chilling effect on
plea bargaining, a key component of our criminal justice
system. Any competent criminal defense attorney will demand
binding assurance from the federal government that it will
decline prosecution before entering into a plea agreement with
state authorities on hate crime charges. Such global
dispositions are difficult to negotiate and frequently
undermine the government's ability to prosecute later-
discovered crimes committed by the defendant. In addition, the
federal government will have effective veto power over state
plea and sentencing agreements in virtually all hate crime
cases.
S. 625's certification requirement clearly invites
mischief. It is not difficult to imagine situations in which
the Justice Department decides that a state ``does not intend
to exercise jurisdiction'' despite the state's assertions to
the contrary. The Justice Department may decide, for example,
that the state's investigation is taking too long and the state
is not sufficiently serious about exercising jurisdiction. The
bill does not provide that the federal government will defer to
a state's assertion of jurisdiction, only that it will consult
with the state. Equally troubling, permitting the federal
government to prosecute a case when it concludes that the state
sentence leaves ``demonstratively unvindicated the Federal
interest in eradicating bias-motivated violence'' will allow
for potentially unfair, successive prosecutions of defendants.
It also will subject the states to federal second guessing on
every hate crime investigation and prosecution.\71\ The
potential for federal intervention at any stage of the case
will create disincentives to moving forward at the local level
and thereby jeopardize the effective investigation and
prosecution of these cases.
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\71\ The concern about federal second guessing is not idle
speculation. As the committee report clearly states, supporters of S.
625 envision that federal authorities will step in whenever state and
local prosecutors fail to bring ``appropriate state charges.''
Committee Report at 4.
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E. Concerns Regarding the Constitutionality of the Legislation
Finally, recent Supreme Court precedent may raise
significant questions concerning the constitutionality of S.
625. Such questions may arise, for example, regarding the
inclusion of gender as a protected class under the bill, since
there is no record and not even any substantial findings to
support the inclusion of gender. While the provisions of S. 625
may ultimately pass constitutional muster, these questions will
surely generate substantial litigation that could be avoided by
enacting the Hatch substitute, which, instead of rushing
headlong to federalize hate crimes, establishes a reliable
study to determine the appropriate scope of federal hate crimes
legislation and provides assistance to state and local law
enforcement agencies in the prosecution of hate crimes.
iii. a measured approach: the hatch substitute
The substitute amendment offered in committee by Senator
Hatch would advance our nation's fight against hate crimes
without creating the problems described above. This alternative
provided for a cross-sectional study to help determine the form
that any additional federal hate crimes legislation should
take. The study would have collected and analyzed statistics on
hate crimes both in states that currently have hate crimes laws
and in those states that currently do not have such laws.
Specifically, the study would have examined the number of hate
crime offenses reported and investigated; the percentage of
hate crimes prosecuted and the conviction rate; a comparison of
the length of sentence imposed on those convicted of hate
crimes; and references to and descriptions of the laws under
which the offenders were punished. Based on these statistics,
the Comptroller General would have submitted a report to
Congress detailing the extent of hate crime activity and the
success of state and local officials in prosecuting hate
crimes. The study would have identified trends in the
commission of hate crimes by geographic region, by the type of
crime committed, and by prosecution and conviction rate. Thus,
the study would have provided Congress with a more
comprehensive factual basis for determining whether, and to
what extent, the federalization of hate crimes is an
appropriate response to the states' efforts, instead of largely
assuming that state and local governments are incapable of
addressing hate crimes.
The other important component of the Hatch alternative
would have provided for federal assistance to states and
localities that need help to fight hate crime. Specifically,
the alternative would have allowed the Attorney General, at the
request of a state or locality, to provide technical, forensic,
prosecturial, and any other assistance in the investigation and
prosecution of hate crimes. It also would have allowed the
Attorney General to provide grants of up to $100,000 per case
to assist states and localities in investigating and
prosecuting hate crimes. The majority report cites the
difficult intent element of the existing federal hate crimes
statute, 18 U.S.C. Sec. 245(b)(2), as the primary obstacle to
the provision of federal assistance to state and local law
enforcement and, concurrently, the need for an expansive
federal hate crimes statute. Committee Report at 4-5. The Hatch
alternative would have achieved the goal of enabling federal
assistance for the prosecution of hate crimes by state and
local law enforcement without unjustifiably federalizing the
prosecution of hate crimes.
iv. conclusion
There exists widespread agreement that the federal
government must play a role in our nation's efforts against
hate crimes. But the role we define must respect the
Constitution and the structure of our government, a structure
that assigns to the states the primary role in criminal law
enforcement. Rather than take a precipitous step that would
potentially make every criminal offense motivated by a hatred
of someone's immutable traits a federal offense, we should
equip states and localities with the resources necessary to
undertake these criminal investigations and prosecutions on
their own. At the same time, we should undertake a
comprehensive analysis of the raw data that has been collected
pursuant to the 1990 Hate Crime Statistics Act, including a
comparison of the records of different jurisdictions--some with
hate crimes law, others without--to determine whether there is,
in fact, a problem in certain states' prosecution of those
criminal acts constituting hate crimes. The Hatch substitute is
a measured legislative response that would accomplish both of
these goals.
Perhaps the study authorized by the Hatch substitute would
demonstrate the need for legislation such as the Local Law
Enforcement Act of 2001. To date, however, the case has not
been made.
Orrin G. Hatch.
XII. Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S. 625, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in bold brackets, new matter
is printed in italic, and existing law in which no change is
proposed is shown in roman):
UNITED STATES CODE
* * * * * * *
TITLE 18--CRIMES AND CRIMINAL PROCEDURE
Part Section
I. CRIMES.................................................. 1
* * * * * * *
PART I--CRIMES
Chapter Section
1. General provisions...................................... 1
* * * * * * *
CHAPTER 13--CIVIL RIGHTS
Sec.
241. Conspiracy against rights.
* * * * * * *
248. Freedom of access to clinic entrances.
249. Hate crime acts.
Sec. 241. Conspiracy against rights
If two or more persons * * *
* * * * * * *
Sec. 248. Freedom of access to clinic entrances
(a) Prohibited activities.--Whoever--
* * * * * * *
(e) Definitions.--As used in this section:
(1) Facility.--The term ``facility'' includes a
hospital, clinic, physician's office, or other facility
that provides reproductive health services, and
includes the building or structure in which the
facility is located.
* * * * * * *
(6) State.--The term ``State'' includes a State of
the United States, the District of Columbia, and any
commonwealth, territory, or possession of the United
States.
Sec. 249. Hate crime acts
(a) In General.--
(1) Offenses involving actual or perceived race,
color, religion, or national origin.--Whoever, whether
or not acting under color of law, willfully causes
bodily injury to any person or, through the use of
fire, a firearm, or an explosive or incendiary device,
attempts to cause bodily injury to any person, because
of the actual or perceived race, color, religion, or
national origin of any person--
(A) shall be imprisoned not more than 10
years, fined in accordance with this title, or
both; and
(B) shall be imprisoned for any term of years
or for life, fined in accordance with this
title, or both, if--
(i) death results from the offense;
or
(ii) the offense includes kidnaping
or an attempt to kidnap, aggravated
sexual abuse or an attempt to commit
aggravated sexual abuse, or an attempt
to kill.
(2) Offenses involving actual or perceived religion,
national origin, gender, sexual orientation, or
disability.--
(A) In general.--Whoever, whether or not
acting under color of law, in any circumstance
described in subparagraph (B), willfully causes
bodily injury to any person or, through the use
of fire, a firearm, or an explosive or
incendiary device, attempts to cause bodily
injury to any person, because of the actual or
perceived religion, national origin, gender,
sexual orientation, or disability of any
person--
(i) shall be imprisoned not more than
10 years, fined in accordance with this
title, or both; and
(ii) shall be imprisoned for any term
of years or for life, fined in
accordance with this title, or both,
if--
(I) death results from the
offense; or
(II) the offense includes
kidnaping or an attempt to
kidnap, aggravated sexual abuse
or an attempt to commit
aggravated sexual abuse, or an
attempt to kill.
(B) Circumstances described.--For purposes of
subparagraph (A), the circumstances described
in this subparagraph are that--
(i) the conduct described in
subparagraph (A) occurs during the
course of, or as the result of, the
travel of the defendant or the victim--
(I) across a State line or
national border; or
(II) using a channel,
facility, or instrumentality of
interstate or foreign commerce;
(ii) the defendant uses a channel,
facility, or instrumentality of
interstate or foreign commerce in
connection with the conduct described
in subparagraph (A);
(iii) in connection with the conduct
described in subparagraph (A), the
defendant employs a firearm, explosive
or incendiary device, or other weapon
that has traveled in interstate or
foreign commerce; or
(iv) the conduct described in
subparagraph (A)--
(I) interferes with
commercial or other economic
activity in which the victim is
engaged at the time of the
conduct; or
(II) otherwise affects
interstate or foreign commerce.
(b) Certification Requirement.--No prosecution of any
offense described in this subsection may be undertaken by the
United States, except under the certification in writing of the
Attorney General, the Deputy Attorney General, the Associate
Attorney General, or any Assistant Attorney General specially
designated by the Attorney General that--
(1) he or she has reasonable cause to believe that
the actual or perceived race, color, religion, national
origin, gender, sexual orientation, or disability of
any person was a motivating factor underlying the
alleged conduct of the defendant; and
(2) he or his designee or she or her designee has
consulted with State of local law enforcement officials
regarding the prosecution and determined that--
(A) the State does not have jurisdiction or
does not intend to exercise jurisdiction;
(B) the State has requested that the Federal
Government assume jurisdiction;
(C) the State does not object to the Federal
Government assuming jurisdiction; or
(D) the verdict or sentence obtained pursuant
to State charges left demonstratively
unvindicated the Federal interest in
eradicating bias-motivated violence.
(c) Definitions.--In this section--
(1) the term ``explosive or incendiary device'' has
the meaning given the term in section 232 of this
title; and
(2) the term ``firearm'' has the meaning given the
term in section 921(a) of this title.
* * * * * * *
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
Part Section
I. ORGANIZATION OF COURTS.................................. 1
* * * * * * *
PART I--ORGANIZATION OF COURTS
Chapter Section
1. Supreme Court........................................... 1
* * * * * * *
PART II--DEPARTMENT OF JUSTICE
31. The Attorney General................................... 501
* * * * * * *
CHAPTER 33--FEDERAL BUREAU OF INVESTIGATION
Sec.
531. Federal Bureau of Investigation.
* * * * * * *
Sec. 534. Acquisition, preservation, and exchange of identification
records and information; appointment of officials
(a) The Attorney General shall--
* * * * * * *
HISTORICAL AND STATUTORY NOTES
* * * * * * *
Hate Crime Statistics
Pub.L. 101-275, Apr. 23, 1990, 104 Stat. 140, provided:
``That (a) this Act [this note] may be cited as the `Hate
Crime Statistics Act'.
``(b)(1) Under the authority of section 534 of title 28,
United States Code [this section], the Attorney General shall
acquire data, for each calendar year, about crimes that
manifest evidence of prejudice based on race, gender, religion,
disability, sexual orientation, or ethnicity, including where
appropriate the crimes of murder, non-negligent manslaughter;
forcible rape; aggravated assault, simple assault,
intimidation; arson; and destruction, damage or vandalism of
property.
* * * * * * *
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