<DOC>
[107 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:86453.wais]
S. Hrg. 107-922
OVERSIGHT OF THE DEPARTMENT OF JUSTICE-CIVIL RIGHTS DIVISION
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
MAY 21, 2002
__________
Serial No. J-107-81
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin JON KYL, Arizona
CHARLES E. SCHUMER, New York MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina MITCH McCONNELL, Kentucky
Bruce A. Cohen, Majority Chief Counsel and Staff Director
Sharon Prost, Minority Chief Counsel
Makan Delrahim, Minority Staff Director
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa,
prepared statement............................................. 85
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
prepared statement............................................. 88
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 1
prepared statement........................................... 95
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 97
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 10
WITNESS
Boyd, Ralph F., Jr., Assistant Attorney General, Civil Rights
Division, Department of Justice, Washington, D.C............... 3
QUESTIONS AND ANSWERS
Response of Mr. Boyd to a question submitted by Senator Sessions. 33
Responses of Mr. Boyd to questions submitted by Senator Leahy.... 36
Responses of Mr. Boyd to questions submitted by Senator Kennedy.. 37
Response of Mr. Boyd to a question submitted by Senator Durbin... 56
Responses of Mr. Boyd to questions submitted by Senator Edwards.. 57
Responses of Mr. Boyd to questions submitted by Senator Hatch.... 59
SUBMISSIONS FOR THE RECORD
Boyd, Ralph F., Jr., Assistant Attorney General, Civil Rights
Division, Department of Justice, Washington, D.C., prepared
statement...................................................... 61
Chattanooga Times, John Leo, March 1, 1999, article.............. 82
Wall Street Journal, Roger Clegg, December 14, 1998, article..... 99
OVERSIGHT OF THE DEPARTMENT OF JUSTICE-CIVIL RIGHTS DIVISION
----------
TUESDAY, MAY 21, 2002
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:30 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Edward M.
Kennedy presiding.
Present: Senators Kennedy, Feingold, Schumer, Durbin,
Edwards, Kyl, and Sessions.
STATEMENT OF HON. EDWARD M. KENNEDY,
A U.S. SENATOR FROM THE STATE OF MASSACHUSETTS
Senator Kennedy. We will come to order. We are just winding
up a vote, Mr. Boyd, on the floor, so the other Members will be
coming in and out.
I apologize to you for the delay.
It is a privilege to welcome Assistant Attorney General
Ralph Boyd to the Senate Judiciary Committee. Today's hearing
is part of the Committee's important responsibility for
conducting oversight of the Civil Rights Division of the
Justice Department.
Since the Division was established 45 years ago, it has
been at the forefront of our Nation's continuing struggle to
guarantee equal justice for all Americans. Last year, in an
address to the Convention on the Elimination of Racial
Discrimination, Assistant Attorney General Boyd eloquently
discussed the significant progress made over the last half-
century toward ending discrimination and fulfilling the promise
of equality. That progress came largely from a genuine and
sustained commitment by the Division and its leadership to
vigorously enforce the Nation's civil rights laws, including
the Civil Rights Act of 1964, the Voting Rights Act of 1965,
the Fair Housing Act, the Americans with Disabilities Act, and
the Civil Rights Act of 1991.
We are proud of the progress we have made, but civil rights
is still the unfinished business of the Nation. In recent
months, many of us have become increasingly concerned about
whether the Civil Rights Division is living up to its important
mission and whether its rhetoric can be reconciled with the
realities of the record on enforcement.
In the past year, the Division has changed its substantive
position on at least two significant employment discrimination
cases, adversely affecting the interests of hundreds of women,
African Americans, Hispanics, and Asians. In both cases, the
Division's actions raise serious doubts about the strength of
its commitment to end all forms of discriminatory employment
practices. Equally troubling, at a time when referrals from the
Equal Employment Opportunity Commission continue to rise, the
Division has drastically cut back on filing new cases in this
area. In the last 16 months, the Division has filed only two
new Title VII Cases, compared to an average of 14 cases a year
since 1980.
On another important civil rights issue, hate crimes, the
Division has been reluctant to fully engage in the fight
against these senseless acts of violence. Attorney General
Ashcroft recently compared the fight against hate crimes to the
fight against terrorism, describing hate crimes as criminal
acts that run counter to what is best in America, our belief in
equality and freedom. Yet, the Civil Rights Division has
remained deafeningly silent on the bipartisan hate crimes bill
in Congress that would provide it with greater tools to combat
these senseless acts of violence.
As a matter of fact, we are trying to bring that
legislation up on the floor of the U.S. Senate and the majority
leader requested that we be able to at least proceed to it.
There has been an objection filed. Soon we are going to have to
vote on cloture on hate crimes, if not at the end of this week,
the vote will take place right after the Memorial Day recess.
It is enormously important legislation which has passed with
bipartisan support, 56 to 44, a year ago and passed the Senate
actually unanimously before that time.
Its position on hate crimes is in stark contrast to the
Department's vigorous call for the new and expanded enforcement
authority to fight terrorism after September 11.
These concerns are heightened by recent personnel moves and
changes in longstanding hiring practices in the Division,
changes that bear a disturbing resemblance to those called for
in a recent National Review article, and that article states,
and I quote: ``Republicans should work to gain more control
over the Civil Rights Division and its renegade lawyers. The
forces of opposition have burrowed in and they are willing to
wait out any GOP regime. Yet a few obvious steps would begin to
address fundamental problems. Instead of putting a single
section chief on what Boyd calls a temporary task force, the
administration should permanently replace those it believes it
cannot trust. Four or five new section chiefs would do a world
of good. At the same time, Republican political appointees
should seize control of the hiring process. They do not need to
make sure that every new lawyer is a member of the Federalist
Society. Simply hiring competent professionals who do not come
from left-wing organizations would be an enormous
improvement.'' I can only hope that the Civil Rights Division
is not and will not make policy and personnel decisions based
upon the wishes or recommendations of the National Review.
Fulfilling the promise of equal justice is too important a goal
and too difficult a challenge to allow ideological
considerations to influence the importance of the Nation's
civil rights laws.
The Committee looks forward to Assistant Attorney General
Boyd's testimony today. We will continue to conduct regular
oversight hearings on the Civil Rights Division in the future
and I look forward to asking questions on a number of important
issues.
Mr. Boyd, we welcome you if you want to proceed.
[The prepared statement of Senator Kennedy appears as a
submissions for the record.]
STATEMENT OF RALPH F. BOYD, JR., ASSISTANT ATTORNEY GENERAL,
DEPARTMENT OF JUSTICE
Mr. Boyd. Thank you, Senator. Senator, if I may, I would
like to make a brief opening statement, if I might.
Senator Kennedy. All right, please.
Mr. Boyd. Thank you, Senator Kennedy and Members of the
Committee. I would like to thank the Committee for inviting me
here today to discuss the important work of the Civil Rights
Division of the Department of Justice. I appreciate this
opportunity to let you know what the Division has accomplished,
answer your questions about our work, and listen to your
concerns about what I believe has been our thoughtful and
vigorous enforcement of our Nation's civil rights laws. I also
want to thank your respective staffs, that is the staffs of
many of the Members of this Committee, for the courtesies that
they have extended in meetings with me prior to this hearing.
Let me begin by saying that it is, indeed, a unique
privilege to serve as the Assistant Attorney General for Civil
Rights. The laws enforced by the Civil Rights Division reflect
some of America's highest aspirations, that is, to become a
society that provides for equal justice under law, a society
that effectively protects the most vulnerable among us, and a
society whose citizens not only protect their own individual
freedom and liberty, but also champion the individual freedom
and liberty of others who may be different from them.
As William Jennings Bryan once said: ``Anglo-Saxon
civilization has taught the individual to protect his own
rights. American civilization will teach him to respect the
rights of others.'' And while the continuing need to enforce
our civil rights laws confirms that we have not yet achieved a
society free of prejudice and the discrimination it brings,
there is no doubt in my mind that America is better off for
making the journey, and I am, therefore, honored and humbled to
be charged with the heavy responsibility of enforcing our
Nation's civil rights laws at the Department of Justice.
Senator when I agreed to serve as Assistant Attorney
General and the Senate saw fit to confirm the President's
confidence in me, I came to the job as a former prosecutor and
a professional litigator by training and experience and it is
from that perspective that I report to you on the work and the
accomplishments of the Civil Rights Division.
Let me first speak generally and say that the work of the
Division goes forward carefully, but aggressively. I recall
during the confirmation process that many Senators sought
assurances that I would continue to enforce certain statutes. I
told you then that I was committed to vigorous enforcement of
the law and I can confirm today that the Division is doing
precisely that.
But I can also commit to something else, and that is not
only are we aggressively using the tools at our disposal, but
we are doing so with the professionalism and the care that
Americans expect from their Federal law enforcement officials.
As I am sure will become clear in this hearing today, there
will no doubt be individual issues, individual cases about
which the distinguished Members of this Committee will have
questions or concerns and I look forward to addressing those
questions and concerns.
At the outset, however, let me say that, reviewed as a
whole, the Division's commitment, my commitment to protecting
the civil rights of all Americans is clear. Looking at our
enforcement record in its entirety, I believe it is inarguable
that the Civil Rights Division has been aggressive, productive,
and fair in its civil rights enforcement efforts to date.
For example, last month, Attorney General Ashcroft presided
over the signing ceremony for an unprecedented agreement
between the Department of Justice and the city of Cincinnati
that will effect major reform in the Cincinnati Police
Department. A year ago, the city of Cincinnati, Ohio, was
literally and figuratively smoldering in the wake of riots
touched off by controversial police shootings of young African
American men. One year later, after thorough investigation by
the Civil Rights Division, led by the Special Litigation
Section, and after intense negotiations, there is a positive
outlook in Cincinnati. There is a framework for the healing
that city thoroughly needs, a framework resulting from the
coming together and the working together of many parties with
differing views, parties like the ACLU, the Black United Front,
and the Fraternal Order of Police, and Cincinnati is not an
isolated case.
Since 1994, when Congress passed the statute that we use to
investigate patterns of police misconduct, there have been
seven settlements between the Department and various police
departments allowing for real reform in those departments. Four
of these settlements were accomplished in the 6 years between
1994 and January 20, 2001. Three were accomplished in the year
and 4 months between that date and today.
Other areas of enforcement tell a similar story. We enforce
the Civil Rights of Institutionalized Persons Act, the primary
Federal law protecting those who are among society's most
vulnerable, the elderly, the mentally ill, inmates, children,
and others who reside in State-run institutions, and under this
administration, the Civil Rights Division has authorized new
investigations of 24 separate facilities under CRIPA. I have
personally authorized 18 of those investigations since last
July. By way of comparison, the Division initiated
investigations of 15 facilities in fiscal years 1999 and 2000
combined.
I am also gratified to report that my Division's efforts to
combat backlash crimes against Arab, Muslim, Sikh, South Asian,
and other Americans who may appear to be of Middle Eastern
origin since the attacks on our country on September 11 have
proceeded aggressively. As I have said in the past, our Federal
civil rights laws are meaningless unless those they are
designed to protect first the fundamental right to physical
safety.
The Civil Rights Division, working with the 56 FBI field
offices and 94 U.S. Attorney Offices and State and local
authorities across America has investigated approximately 350
incidents since September 11, ranging from the attempted
firebombing of a mosque to outright murder. Through ongoing
cooperation among Federal and State and local authorities, 80
criminal prosecutions have been initiated and they are bearing
fruit.
For example, 2 weeks ago, a defendant in Federal court in
Seattle pled guilty to a case we indicted in the days following
September 11. He stood accused of setting fires to cars at a
mosque and attempting to shoot worshippers when they exited the
building. These prosecution efforts have proceeded in tandem
with our outreach efforts to communities and individuals
affected by these backlash crimes. Since September 13, I have
spoken out repeatedly, indeed, between 20 and 30 times in
closed door sessions and in town hall meetings across America
against violence and threats aimed against vulnerable people
and affected communities.
I could tell you, Senator Kennedy and Senator Feingold,
about many other achievements, most of which are further
detailed in the written testimony I have submitted for the
record today. I could describe our continuing prosecution and
our stepped-up prosecution of human trafficking cases or our
continuing efforts to protect minority voting rights by
scrutinizing, free of politics or other improper influence,
almost 7,000 pre-clearance submissions under the Voting Rights
Act since February of 2001, submissions containing over 21,000
voting changes for the Civil Rights Division to review. I am
proud to say that the hardworking Section V staff has never
missed a deadline in this endeavor.
I could also talk at length about the $500 million
settlement we reached with the State of Mississippi to end
segregation in its institutions of higher learning or the $300
million settlement we achieved with the city of Yonkers, New
York, to close the education and achievement gap between
minority and white students in that town.
I could also talk about the sexual harassment cases we have
initiated in our Employment Section, targeting a county fire
department or a school district in the American Southwest, or
the red-lining cases we have approved in the Housing Section of
the Civil Rights Division. There is also our role in the
President's New Freedom Initiative focusing on protecting the
rights of the disabled.
Senator Kennedy, Senator Feingold, I have been litigating
cases for the better part of two decades, both as a prosecutor
serving the American people and the citizens of the
Commonwealth of Massachusetts, where I come from, and as a
private lawyer. As a result, I have a sound basis, I think,
from which to say that both the quality and the quantity of
civil rights enforcement work coming out of the Civil Rights
Division during the 9 months I have had the privilege of
leading that division is exceptional by any fair and reasonable
measure.
But as you referred to in your opening remarks, Senator
Kennedy, we can do more, we need to do more, and I am committed
to doing more. I hope that today's hearing will help us do
that. I hope that today's hearing will help in that effort.
So with that in mind, I look forward to your questions and
your concerns and I, again, thank you for giving me the
opportunity in a public forum to talk about these very
important issues.
Senator Kennedy. Thank you very much. We will include your
entire statement in the record.
Mr. Boyd. Thank you, Senator.
Senator Kennedy. Thank you very much.
[The prepared statement of Mr. Boyd appears as a submission
for the record.]
Senator Kennedy. If we could, I would like to draw your
attention to the Brennan case, a rather notorious case
involving discrimination in New York City. We have been joined
by Senator Feingold and Senator Kyl. I ask if we might have 15-
minute rounds to give us an opportunity to get into some
detail. Then if we are joined by others, we can shorten that
time so everyone gets a chance to speak.
Let me quote from the brief that the Civil Rights Division
of the Justice Department filed in the Second Circuit in the
Brennan case, a very important case in terms of discrimination:
``The retroactive seniority provision is constitutional because
it is narrowly tailored to serve the city's compelling
government interest in remedying the adverse effects caused by
its civil service examination and recruitment practice.'' Does
the Department still hold the view that all of the relief that
has been granted in the Brennan case, including the retroactive
seniority provision, is constitutional?
Mr. Boyd. The answer to that, Senator Kennedy, is that we
certainly do with respect to 27 of the beneficiaries of the
settlement agreement entered into between the Department of
Justice and the Board of Education of the city of New York,
which the Second Circuit has vacated but is continuing to be
litigated vigorously by the United States through the Civil
Rights Division, and let me explain the position fully, if I
may, Senator.
The Brennan case that you refer to is a case where the
Board of Education of the city of New York used a screening
test for applicants for permanent positions as custodial
engineers in the New York City school system and that screening
test had a disparate impact on minority applicants. That is to
say, they did not do well under the terms of that screening
test to the point at which the permanent hiring numbers were
woefully deficient for the school board in those positions.
The Civil Rights Division brought a civil suit against the
city of New York and the New York Board of Education under
Title VII, the disparate impact provisions of Title VII,
arguing that that screening examination was not sufficiently
job-related nor was it consistent with business necessity. The
Civil Rights Division and the Department of Justice entered
into a settlement agreement with the city of New York, an
agreement that provided retroactive seniority for almost 60
individuals who were given permanent employment status and
retroactive seniority under the terms of that settlement
agreement.
That settlement agreement was appealed by intervenors. That
settlement agreement was vacated by the Second Circuit, which
remanded the case to the District Court to allow the
intervenors, who alleged that they had been harmed by the
retroactive seniority given to the beneficiaries under the
settlement agreement, to fully conduct discovery with respect
to their claims and litigate their claims.
Since that time, we have vigorously defended the relief in
that case with respect to the 27 beneficiaries who actually
took the examination and failed the examination and, therefore,
were harmed by what we alleged were the discriminatory
practices that the school board engaged in.
Senator Kennedy. If I can, in your brief before the Second
you intervened on behalf of all of the figures----
Mr. Boyd. We brought the suit originally----
Senator Kennedy. I have the brief right here. I can read it
to you. It was on behalf of all those covered in the initial
settlement.
Mr. Boyd. The brief was on behalf of----
Senator Kennedy. That has changed now. You changed your
position with regards to the brief which covered all of those
and now you are saying that you are only covering a part of
them.
Mr. Boyd. What we have said, Senator, is that we are
aggressively defending the settlement agreement with respect to
the 27 individuals who actually took the exam and were harmed.
With respect to the remaining 32, what we have told the court
is because they did not take the examination and were not
harmed, therefore, by the examination, that there has to be
some other theory of entitlement in that at present, there is
not a sufficient factual predicate in the record to demonstrate
that they were actually harmed, and, therefore, there is not
yet a sufficient factual basis to support a Title VII remedy of
retroactive seniority, nor does the factual record at present
support the constitutionality of that remedy with respect to
the 32 who were not the test-takers and not harmed by the test.
But let me make very clear----
Senator Kennedy. Five minutes are already up and I have
asked one question, the answer to which we now know is that in
the brief. You initially defended all, and now you draw a
distinction. That is a change of position. You gave the reasons
for that.
Mr. Boyd. Senator, if I may, just 20 seconds----
Senator Kennedy. All right.
Mr. Boyd [continuing]. But to be very clear, we have not
dropped the remaining 32 who did not take the test.
Senator Kennedy. Who is defending them?
Mr. Boyd. What we are doing and what we have said to the
court is during the course of discovery in this case, we will
work diligently and vigorously to try to develop a factual
record that will demonstrate or would demonstrate that the
remaining 32 were actually harmed and, therefore, entitled to
relief. But what we have said is the record does not presently
demonstrate that, so we cannot claim it. We have an
obligation----
Senator Kennedy. It did demonstrate that according to the
Justice Department in its brief. We will let the record----
Mr. Boyd. That is----
Senator Kennedy. I want to move on, Mr. Boyd. I have asked
one question and it has taken seven-and-a-half minutes and I
would like to see if we can get to the facts on this. In the
April 17 letter to the judge presiding over the case, the New
York Corporation Counsel said, and I quote: ``The Department
has abruptly refused to be bound by the settlement that it
proposed, signed, moved this court to approve, and defended on
appeal before the Second Circuit.'' I have the letter right
here.
It goes on to say that, ``Until 3 months ago, your office
was coordinating a defense with the city and then abruptly cut
off communication on the day the papers were due to be filed in
court.'' Someone who is unknown to the corporation counsel
contacted them and said the trial team was being removed from
the case and you were no longer defending the relief granted to
32 of the 59 beneficiaries. That is what you were just saying.
I wonder, has the Department done anything to inform the 32
beneficiaries that it no longer supports the relief that they
have been granted?
Mr. Boyd. Senator, we do not represent the 32.
Senator Kennedy. Do you know who is representing them?
Mr. Boyd. I do not, Senator. Let me tell you this, and I
want to be very clear about it. It may seem like a fine
distinction, but it is an important one. We are defending that
settlement agreement that the Second Circuit has vacated. It
has been vacated by the Second Circuit, but we continue to
defend it consistent with our obligations under the law as well
as our obligations under the rules of professional
responsibility and ethics that all lawyers, especially
government lawyers, are bound by.
So what we are saying is, with respect to part of the
relief to the 27 who took the test, we are flat out defending
them. With respect to the 32 who the record does not currently
demonstrate were harmed by any discriminatory practice, we are
trying to develop that factual record so we can take the
position that they are entitled to retroactive seniority. But
the record does not yet reflect that. Now, a position----
Senator Kennedy. Well, if I can, the Second Court did not
vacate the joint defense agreement. It did not vacate that
agreement. The Clinton Administration Justice Department found
justification for coverage of all, which I have just
illustrated here. The court did not vacate the joint agreement.
You say that basically you have not changed the positions in
the case. Then why did you remove the original trial team from
the case, write a letter to the presiding judge telling him
that a firewall has been erected to ensure that any information
the city provided to the departmental attorneys previously
assigned to these actions under any claim or privilege would
not be compromised?
There has only been one other instance of the Civil Rights
Division implementing a firewall, and that was years ago. For
what possible reason would the Justice Department effectively
set these 32 individuals who are being protected by the
previous administration adrift?
Mr. Boyd. Senator----
Chairman Kennedy [continuing]. I have the documents here,
if I had the chance.
Let me ask you a specific question. Have you or anyone on
your staff at any time had any contact with the Center for
Individual Rights about the Brennan case?
Mr. Boyd. I do not recall that I have, Senator. I do not
know the answer to that question. I can find that answer out
and get back to you, but they are----
Senator Kennedy. You would remember that----
Mr. Boyd. My understanding----
Senator Kennedy. You have got a superb memory. This is the
other intervening group. You would know whether----
Mr. Boyd. Senator, I----
Senator Kennedy. OK. All right. Fair enough. Fair enough.
Mr. Boyd. Let me at least answer the question, if I may,
respectfully, Senator. I would assume that we have, since they
are a litigating party, so it would be hard for me to imagine
that we would not have had some conversation with other
litigants in the case.
But let me say something very quickly. I did not remove
anyone from this case. The prior litigating team--the trial
team in this case forwarded a request to the Office of
Professional Responsibility within the Department of Justice to
say that because the position that they had taken essentially
with respect to the status of the 32 offerees who we are now
saying there is not sufficient evidence in the record at this
time to support relief with respect to them, but we are trying
to develop that factual record, because of that modification in
our position, and it clearly is a change in position. I have to
look at the record as is presented to me and look at it in view
of the facts and the law and make an independent, straight call
on that, and we have taken a different position with respect to
those 32 offerees and we expect and hope to be able to defend
relief with respect to them.
But the Office of Professional Responsibility, having been
petitioned by the trial team, the prior trial team in this
case, gave the judgment that there should be a firewall between
that trial team and the new trial team and that is the reason
that counsel was changed. I did not remove them. I had nothing
whatsoever to do with that, Senator, and it was perfectly
proper for them, that is, the prior trial team, to raise the
issue with the Office of Professional Responsibility. We do
that when difficult ethical issues and responsibilities are
raised and we follow their judgment.
Senator Kennedy. Well, it is puzzling that they would be
dismissed, considereing the success they have had, but that is
not where my question is. My question was the contact you had
with the Center for Individual Rights about the Brennan case. I
understand your answer is that you may have.
Mr. Boyd. I suspect, Senator, that almost certainly we did.
I just do not have firsthand knowledge of it, so I am not----
Senator Kennedy. Will you provide for us when and where you
had contact, and if the line attorneys on the case were aware
or were involved?
Mr. Boyd. I would be happy to, Senator, and again, I am not
trying to be coy at all. It is just that I have not been
involved in the day-to-day-litigation----
Senator Kennedy. Fair enough.
Mr. Boyd [continuing]. But the Center for Individual Rights
is a litigant and I would imagine we would have talked to them.
Senator Kennedy. OK, if you can get us that information.
Before moving into another subject, the New York Corporation
Counsel may have said it best: ``The change of administration
in Washington does not entitle the Department of Justice to
walk away from legal positions it espoused and the obligation
it entered into under a previous administration.'' I know that
you do not agree with that. That was not my conclusion, that
was theirs.
Let me go to the employment cases. I notice, according to
the Employment Litigation Section's own website, which was last
updated on May 6, the Division had only filed two complaints,
Title VII cases, one on March 20, 2002, the other May 31, 2001.
Yet, in your opening statement, you note that you have
authorized eight new lawsuits that are in pre-suit
negotiations. Can you tell us, when were the complaints were
actually filed on the six new cases?
Mr. Boyd. Not all of them have been filed, Senator. The way
things work in several of our civil litigating sections,
including the Employment Litigation Section, the Housing
Section, is that lawsuits are authorized and then the trial
teams engage in pre-filing negotiations. In most instances,
what that results in is an agreed-upon consent agreement or
settlement agreement that is entered at the same time the suit
is filed. So a suit can be authorized and then there can be
several months that transpire between the authorization to
bring suit and the time the complaint is actually filed. I can
give you examples of some of those cases.
Senator Kennedy. As I understand from the website, there
are only two filed complaints on Title VII. There is obviously
an enormous number of increases. In your statement, you
indicated: ``I have authorized the eight new lawsuits that are
in pre-suit that were not reflected on this.'' Is there any
reason, without getting into the numbers game, that you would
have the few numbers that you have as compared as to the
average for the last 6 or 8 years, of some 14 cases?
Mr. Boyd. Senator, respectfully, I would take a different
view of the numbers. I can only authorize suits. I do not
control the timing of the filing of those lawsuits. I have been
on duty for approximately 8 to 9 months and I have authorized
the filing of eight new Title VII cases and I would say that
that is consistent with the kind of numbers that were filed on
an annual basis in the past.
Moreover, as the Senator knows, we have been more than a
little busy in the Civil Rights Division dealing with the
aftermath of September 11, the 350 hate crime investigations in
which we have been involved, the outreach efforts that we have
mounted nationwide. I have, as I said, done between 20 and 30
town meetings across America and even in Canada in the wake of
September 11. So I actually think that the numbers of suits
that I have authorized is not a departure from the past, but,
in fact, consistent with the task, both in terms of quantity
and quality.
Senator Kennedy. Did you request any additional funding, if
you are this hard pressed, to try and deal with these
additional kinds of----
Mr. Boyd. Senator, we supported the budget that the
President submitted to Congress.
Senator Kennedy. Seventeen minutes to the Senator from----
Senator Kyl. Mr. Chairman, I got here late. I am going to
have to leave in about 3 minutes, and therefore, I would like
to just yield to Senator Sessions.
Senator Kennedy. That is fine. I apologize.
Senator Kyl. Thank you very much.
STATEMENT OF HON. JEFF SESSIONS,
A U.S. SENATOR FROM THE STATE OF ALABAMA
Senator Sessions. Mr. Chairman, thanks for calling this
hearing. It is a very important subject, the oversight of the
Civil Rights Division of the Department of Justice. The 13th,
14th, and 15th Amendments to our Constitution changed the
Constitution to provide for freedom, civil rights, and voting
rights for all persons, regardless of race. Congress's
enactment of Civil Rights and Voting Rights Acts extended those
protections. The judiciary's courageous decisions in the 1950s,
1960s, and 1970s played a crucial role in transforming those
abstract guarantees into real changes that affected people's
lives.
Yet, it was enforcement by the Department of Justice and
the lawyers from civil rights organizations that enabled the
courts to act that protected our citizens that made civil
rights a reality for poor minorities in the South and around
the country. Indeed, we have countries all over the world that
have remarkably wonderful provisions protecting civil rights,
but have no civil rights at all.
In America, discrimination on the basis of race, origin,
religion, or gender has no legitimate place. Over the past
several decades, the Civil Rights Division has played an
important role in delivering on this promise by enforcing
Congress's civil rights laws in housing, employment, and in the
voting booth.
The men and women who work at the Department of Justice are
outstanding professionals who can be proud of the role they
played over the years in enforcing civil rights. That said, the
role of the Civil Rights Division is different from that of
Congress, who makes laws, and the judiciary, who interprets the
laws. To be effective, the civil rights laws must be enforced
vigorously, but there must be a consideration of balance.
Under the tenure of Bill Lann Lee and the Clinton
Department of Justice, the Department, I believe, occasionally
did lose that balance. Mr. Lee, by all accounts a very fine
person, did take some steps that I considered out of the
mainstream and not based on sound law.
For example, in 1999, the Civil Rights Division brought its
tremendous resources to bear against a high school in North
Carolina in order to force that school to drop its Indian
mascot. In 1998, the Civil Rights Division targeted the city of
Torrence, California, for allegedly discriminating against
minorities in a written test for police and firefighting jobs.
The city said the tests were fair and widely used around the
country. The Civil Rights Division persisted, sued, and a
Federal judge found the suit so unfounded and frivolous that
she ordered the government to cover Torrence's legal fees of
approximately $2 million.
Now, Mr. Boyd, you were talking with Senator Kennedy about
having to have facts to back up the matters when you file a
case in court, so I would suggest this decision in 1998 would
indicate that the Clinton Department of Justice was not always
right in its position. Do you feel a burden to make sure that
when you sue a city or a business, that you have the facts and
the law to justify it and that you are not, therefore, using
the power or the authority or the august respect the Civil
Rights Division has to in some way abuse that group?
Mr. Boyd. Thank you for that question, Senator. I think it
is an important question, and let me say this. I think what you
said is true in every case, not just a case that we bring
against a municipality or another sovereign. We have an
obligation as Federal prosecutors, as government lawyers, to
get it right and to do everything that we can to make sure that
we put ourselves in as good a position as we can reasonably be
in to get it right.
We not only have as prosecutors in the Civil Rights
Division of the Department of Justice great statutory
authority, but we also have great moral authority. So when we
say something, courts and the American people ought to be able
to rely on that as an unvarnished plain statement of truth, as
best we can discern it.
So in every case, Senator, I insist on three things,
regardless of the kind of case it is. The first is that every
one of our legal claims be supported by well-settled legal
principles. We are operating within a legal framework. We are
law enforcers, so we should be seen not simply as just
enforcing the law, but indeed following it ourselves and making
sure that any claim that we bring is based on readily
articulable legal principles. That is the first.
The second is to say that there should be a good-faith
factual basis supporting each and every one of those legal
claims. That does not mean that we have trial level or trial
quality evidence, but that means we have a good-faith factual
basis for claiming what we claim and that also means, and I
insist that it mean in each case that we bring or consider
seriously bringing, that we have done everything that we can
reasonably to find out as many facts as we can so that we can
get it right.
Now, that means different things for different litigating
sections within the Civil Rights Division. Obviously, the
criminal section has the opportunity to use a grand jury and
compel witness testimony in the grand jury, so the criminal
prosecutors have a better and more full opportunity to develop
the facts. On the civil side, you do not have the grand jury,
but we should still in civil cases do everything that we can
reasonably do to make sure that we are getting the facts right
and that we have a good-faith factual basis for everything we
allege in a complaint.
Finally, with respect to the relief side, each aspect of
the relief that we seek should again be well-grounded in
established legal principles and also have a sufficient factual
predicate. Now, that determination, because the relief comes at
the end of the case after a finding of liability, that does not
so much have to occur at the front end, but it sure better
occur before the relief is arrived at, especially when it is
relief that we are asking the court to embrace in the context
of a court-sanctioned settlement agreement or consent
agreement.
I insist or will insist on that in every case that we
bring. I know some people have said there is a change in
philosophy and ideology. That is not true. What there is a
change in is the level of expectation and preparation that I
expect with respect to everything we do as law enforcers. That
is what the American people expect. That is what the courts
expect.
I had the opportunity recently to have lunch with several
other members of the Department of Justice and a Supreme Court
Justice and this Supreme Court Justice reminded us that more is
expected of us, that what we say in our pleadings and orally in
open court is viewed differently. There is an expectation that
we be right and that we do everything we can to get it right
and I am absolutely determined that we do that.
We will be as aggressive as the law and facts allow us to
be in every enforcement action we bring, but it is not rough
justice by Boyd or rough justice by any member of the
Department of Justice. It is justice according to the
Constitution and the tools that Congress has given us.
Senator Sessions. Well said, Mr. Boyd. I thank you for
saying that and I think that is important. You are speaking
correctly.
The Civil Rights Division of the Department of Justice,
when it takes on a city like Torrence, California, and accuses
them of discriminating against police and firemen, that is a
serious thing. That city, I am sure, had to wrestle very hard
with whether or not to continue the litigation, whether or not
just to give in and agree to changes because they did not want
to continue to be accused by the United States Department of
Justice as being discriminatory. They also had to ask whether
they could afford the litigation.
So it is a power that ought not to be abused, and there are
cases, particularly like under Adarand that we have some
disagreement with. One columnist in the Wall Street Journal in
1998 reported that the acting head of the Civil Rights Division
has supported unconstitutional racial or gender quotas in over
20 actions in 1 year. Probably, there would be a dispute and
disagreement among honest people over that definition, but some
of these questions are pretty close.
In 1997, the Circuit Court of Appeals rendered a stinging
rebuke to the Civil Rights Division for its handling of an
election dispute in Dallas County, Alabama. For 4 years,
lawyers from the Civil Rights Division investigated and
litigated in an attempt to prove racial discrimination in a
local election. This was quite a challenge to the local county,
but they resisted and defended and believed in their position
and decided to see it through and take it to court.
After reviewing the record, this is what the Court of
Appeals said: ``A properly conducted investigation would have
quickly revealed there was no basis for the claim of purposeful
discrimination against black voters.'' The court pointed out
that the actual placement of Dallas County voters within
districts was made by the predominately black Board of
Registrars. The court then ordered the Department of Justice to
pay $63,000 in attorneys' fees to the Dallas County Commission
because the Department had forced the County Commission to
defend a suit that was not justified under the facts or the
law.
I note that the opinion was written by a United States
District Judge from California who was sitting by designation
on the 11th Circuit panel. This judge said: ``Unfortunately, we
cannot restore the reputation of the persons wrongfully branded
by the Department of Justice as public officials who had
deliberately deprived their fellow citizens of their voting
rights. We also lack the power to remedy the damage done to
race relations in Dallas County by the unfounded accusations of
purposeful discrimination made by the Department of Justice.''
The three-judge panel suggested to the Justice Department that
it be ``more sensitive'' in the future to ``the impact on
racial harmony that can result from the filing of a claim of
purposeful discrimination.'' The court said it found the
Justice Department's actions were ``without a proper
investigation of the truth unconscionable.'' ``Hopefully,'' the
court goes on to say, ``we will not again be faced with
reviewing a case as carelessly investigated as this one.'' Is
that something that you will monitor and try to make sure does
not occur, Mr. Boyd?
Mr. Boyd. Absolutely, Senator. I thank you for reminding us
of kind of the obligations that I have been talking about that
we have as Federal law enforcers. But as I listened to you, I
also feel compelled to say a couple things about the Civil
Rights Division and the lawyers in the Civil Rights Division.
The overwhelming preponderance of lawyers in the Department
of Justice generally and the Civil Rights Division specifically
are extraordinarily professional, talented, dedicated,
committed folks who are doing tremendous good for our country
and for the rule of law, and I have said several times that
since coming to this position, I have had the honor to see some
of the incredible high quality of work and commitment that
those very professional and talented and gifted lawyers have
done.
Last week, I had the opportunity to travel with the
Attorney General to Albuquerque, New Mexico; Phoenix, Arizona,
and Las Vegas, Nevada, and when we were meeting with the
Federal judges in Albuquerque, one of the Federal judges right
out of the box took about 5 minutes to talk about a case that
Civil Rights Division lawyers had recently tried in front of
him, a case that he described as a very difficult case, an
uphill struggle, which they prevailed in, and he took great
care to tell me how pleased and how remarkable he thought the
professionalism of the Civil Rights Division lawyers was.
So I think it is careful for us as we go forward with all
of the moral and legal authority that we have, and you are
quite right to remind us that when we accuse, it carries great
weight and has very often cascading consequences for the party
that we accuse, it is certainly appropriate that you remind us
of that, Senator. But I also want to be very clear to say that
of the thousands of matters that the Civil Rights Division
deals with every year, the overwhelming preponderance of those
matters we are dealing with in an incredibly professional,
capable way. We have some very committed, experienced,
dedicated, talented people and I think the people of America
ought to know that and feel confident about that.
Senator Sessions. I agree, and I know some of them and they
do great work. It has changed the face of my area of the
country, the whole legal landscape, and much of that was done
by the Civil Rights Division of the Department of Justice. When
I was a United States Attorney, it was said that I had blocked
an investigation of the Civil Rights Division, but in truth, as
I checked the record at that time, I signed and supported the
pleadings at every pleading that was filed, and there were
many, many cases pending at that time.
I believe in the work that you do, but just because someone
says it is civil rights, maybe they have not done their
homework. Maybe they have not studied the facts or researched
the laws quite enough, and I am glad to see that you will give
everyone a fair chance.
I am glad that you recognize the difficult position a
business or a political institution or a governmental
institution can be in when the Department of Justice says, we
are going to file next month a lawsuit accusing you of racial
discrimination, but if you will agree to this consent
settlement and agree to do A, B, C, and D, we will not file
that suit. We can reach an agreement. That is the way it ought
to be done. I am not criticizing that procedure, but do you
recognize that gives an awful lot of power to the Civil Rights
Division and you have to wield it responsibly?
Mr. Boyd. I do, Senator, very much, and let me say this,
that the cause of victims of discrimination, which protecting
victims of discrimination is our principal mission, and that
mission is best served by us discharging our responsibilities,
our law enforcement responsibilities in a highly professional
way.
The idea of aggressive civil rights law enforcement and
being careful, taking care in how we do that, are not
necessarily contradictory concepts. In fact, they ought to be
complementary concepts, and that essentially summarizes my
approach. We will be aggressive in protecting victims. That is
our mission, that is our job, and I will tell you, that mission
in the aftermath of September 11 is as clear as it ever could
be. But it also requires us, and that cause of protecting
victims is best served if we do it right, and that is what we
are going to try to do as best our skills and our experience
will allow us to do, Senator.
Senator Sessions. Right. You should be aggressive. You
should not allow and tolerate racial discrimination in America.
But at the same time, you want to be professional and balanced.
I like your remarks and thank you for them.
Senator Feingold. [Presiding.] Thank you, Senator Sessions.
We have a vote on, so I am just going to simply recess the
hearing for about 10 minutes and I will be back to resume
questioning.
Mr. Boyd. I will look forward to it, Senator. Thank you.
Senator Feingold. The hearing is in recess.
[Recess.]
Senator Feingold. I call the hearing back to order. By the
Senate's definition of 10 minutes, we are back.
Mr. Boyd, it is good to see you again. I would like to
thank you, and I, of course, want to thank the Chairman,
Senator Kennedy, and the Chairman of the Committee, Senator
Leahy, for their leadership and for holding a hearing on this
subject.
Mr. Boyd, you have already talked about this a bit, but we
all have great respect for the hard work and the dedication of
our Nation's police officers, but on occasion, some of those
responsible for enforcing the law engage in conduct that itself
violates Federal laws and constitutional rights. For example,
racially biased policing, also sometimes known as racial
profiling, is certainly, in my mind, an unacceptable practice
that has tarnished relations between a number of police
departments and the communities they serve.
As you well know, because I think I have at least discussed
this in your presence last year, President Bush and Attorney
General Ashcroft called for a ban on racial profiling and I and
some of my colleagues have introduced legislation to implement
and enforce such a ban. Just 2 weeks ago, Deputy Attorney
General Thompson assured me that the Department still
explicitly supports a ban on racial profiling and intends to
work with us to get a bill to the President's desk.
Investigation of police departments conducted by the Civil
Rights Division, such as the one recently settled in
Cincinnati, play an important role in addressing this problem.
I would like to first ask you, do you regard the settlement
agreements in the Cincinnati case as a model for addressing
this concern in other cities, and if so, can we expect to see
Civil Rights Division investigations elsewhere lead to similar
reform?
Mr. Boyd. Thank you for asking that question, Senator, and
let me just say, before I answer your question directly, I
appreciate and I know the Attorney General appreciates the
leadership role that you and Representative Conyers have taken
with respect to this issue. The issue of racial profiling is
certainly one of--if not the most important--issue on my plate
as the head of the Civil Rights Division, and as you correctly
pointed out, Senator, during the Presidential campaign, then-
Governor Bush made it very clear that he thought that racial
profiling was wrong and ought to be eliminated.
The Attorney General has been very clear in saying, not
only is it wrong, it is unconstitutional, and he has tasked the
Deputy Attorney General, Deputy Attorney General Thompson, with
the responsibility of reviewing and studying the issue in the
context of Federal law enforcement with an eye toward us
providing some useful guidance about the elimination, the
ultimate elimination of racial profiling, and we in the Civil
Rights Division have been in the boat rowing with the Deputy
Attorney General to make sure that that is done and done as
promptly as it can be.
I am also, obviously, aware of the bill that you have
introduced that deals with this issue and it certainly is a
good start with respect to dealing with this issue.
As to Cincinnati in particular, the Cincinnati settlement
did have racial profiling issues that were present, but the
principal issues in Cincinnati involved the use of force and
the alleged excessive use of force as a matter of practice by
Cincinnati police officers. So the gravamen, the overwhelming
weight of that agreement was focused on issues regarding the
use of force, use-of-force policies, training, and reporting
with respect to the use of force. So that was the preponderant
issue in Cincinnati.
But in Cincinnati and elsewhere, we have dealt with this
racial profiling element or discriminatory police practices.
The Pittsburgh agreement, the consent decree in Pittsburgh
reflects issues with respect to racial profiling and others.
Senator Feingold. Let me follow up on the Cincinnati
situation a little bit. The Cincinnati settlement actually
incorporates by reference a city ordinance, No. 88-2001, and
requires enforcement of that ordinance. Now, Section 1 of the
Cincinnati law bans racial profiling and defines it as ``the
detention, intradiction, or other disparate treatment of an
individual using the racial or ethnic status of such individual
as a factor, other than in the case of a physical
description.'' Do you endorse that definition of racial
profiling?
Mr. Boyd. Anything we ask of the Department is something--
anything we ask to be part of an agreement in which we enter
into, in that context, we do, and I do. Senator, I think what
that is trying to get at, and certainly what your proposed
legislation seeks to deal with and what I think concerns all of
us is really racial stereotyping in law enforcement, that is to
say, using race as a proxy for enhanced criminality, and I
think that is what concerns us all and I think that is what we
are trying to deal with effectively in a careful way that does
not stop us from using race as a factor in circumstances where
it is justified, and your legislation talks about suspect-
specific situations.
Senator Feingold. Let me comment on that. I think that is
fine as far as it goes, but I think I did hear you explicitly
agree that the language I read you is something the Department
supports, and I want to make it clear that that is basically
the definition of racial profiling that we have in our anti-
profiling bill. So, I hope that your endorsement of that
definition makes it as easy as possible for us to reach
agreement on a bill to end the practice once and for all. That
is similar to the type of response I received from the Deputy
Attorney General, who certainly did not equivocate on the
point, either.
Mr. Boyd. Senator, I would just say, as a law enforcement
body, if we impose a requirement on a police department of one
of our Nation's significant cities, that we obviously embrace
it in that context. I think when Deputy Attorney General
Thompson was in front of you, he said our mission continues to
be to eliminate racial profiling and that is my position, as
well, you should not be surprised to hear.
Senator Feingold. Fair enough. Let me say on that point
that I strongly believe that this is not an enforcement effort
that should sort of wax or wane depending on who is running the
Justice Department. I intend to work for enactment of a law
that places a clear, workable definition of racial profiling in
Federal law, that bans the practice, as both the Attorney
General and, I might add, that the President not only said it
during his campaign, but I was in the House chamber when he
made one of his very first statements as President of the
United States that racial profiling should be prohibited. The
law should also create strong mechanisms to actually enforce
that ban.
I mentioned earlier the striking similarity between the
Cincinnati law and my bill with respect to a ban on racial
profiling. For a number of reasons, and some we have already
discussed, regardless of what the major point of that agreement
was, the fact is that it had this ban on racial profiling, but
there are other similarities, as well, with this agreement.
Both my bill and the Cincinnati settlement require the
creation of citizen complaint procedures and data collection on
stops and procedures. The ban on racial profiling, citizen
complaint procedures, and data collection, in my view, are all
good steps to address racial profiling and should be applied
nationwide, so I am glad that you see this Cincinnati
settlement as a success story, and again, I see it as a way in
which we can come together to pass some important legislation.
Let me move on to one of the most important
responsibilities of the Civil Rights Division: ensuring that
law enforcement agents carry out their duties within the bounds
of the law. One of the key tools for carrying out that
responsibility is Section 14141 of Title 42 of the U.S. Code,
which makes it unlawful for any law enforcement agent to engage
in a pattern or practice of conduct that deprives persons of
rights protected by the Constitution and the laws of the United
States.
Mr. Boyd, during your time as head of the Civil Rights
Division, how many new Section 14141 cases has the Department
of Justice filed in court?
Mr. Boyd. I do not believe we have filed any new cases in
court, Senator. There have been--we currently have opened a
formal 141 investigation in a number of cities, including
Portland, Maine, and Schenectady, New York. We have preliminary
inquiries underway in several South Florida jurisdictions.
I should say, just to give you a sense of the order of
magnitude of these cases and the volume of these cases, since
the statute was enacted by Congress in 1994, there have been
seven settlements. Three of those settlements have been
achieved during the last year in the Civil Rights Division. We
continue to have open investigations that are public in
Cleveland, Ohio; Detroit, Michigan; East Point, Michigan; New
Orleans, Louisiana; Prince George's County, Maryland;
Riverside, California; Tulsa, Oklahoma; and Buffalo, New York.
Senator Feingold. That is about settlements that have
occurred under this administration?
Mr. Boyd. Those are open investigations.
Senator Feingold. Those are open investigations. You
mentioned the settlements before. But let me just make sure we
agree on what has happened since the start of the Bush
Administration in terms of initiating new complaints. My
understanding is that there have been no new complaints filed
against State or local police departments for police abuse or
misconduct.
Mr. Boyd. There have not been lawsuits that have been
filed. There have been formal investigations.
Senator Feingold. And then the four formal investigations,
Cincinnati, Tulsa, Schenectady, and Portland, Maine.
Mr. Boyd. Right, as well as a number of preliminary
inquiries. Maybe it would be helpful if I briefly described how
that 14141 process works.
Senator Feingold. Let me just ask you one other thing
first, and hopefully we will have time for that. In your
opening statement, you said the following about the Cincinnati
settlement: ``This unique and historic arrangement achieved
real reform without the need for protracted litigation or a
consent decree.'' Now, how does your Department determine
whether to initiate a pattern or practice lawsuit against a
police department under Section 14141? What are the factors or
standards that you use and how is this approach different from
or similar to the standard utilized by the prior
administration? You may well have been heading in that
direction.
Mr. Boyd. Yes.
Senator Feingold. I want to be sure that those different
pieces are answered that I just listed.
Mr. Boyd. And please follow up if I am not responsive to
one of your questions. The factors and standards are the same.
We review the record that is available to us through witness
interviews from pleadings or depositions or testimony in other
fora to determine whether there is a pattern or a policy and
practice of a police department that consequently causes
repetitive constitutional violations on the part of police
officers, whether it is racial profiling, whether it is the
repetitive use of excessive force.
If I could analogize for the lawyers, it would be kind of
doing a 1983 assessment with respect to situation after
situation to make some assessment as to whether there is some
formal policy or some unspoken practice that is leading to some
level of repetitive unconstitutional uses of authority by
police officers.
Senator Feingold. This has to do with whether to initiate a
lawsuit, is what you are answering?
Mr. Boyd. That is with respect to whether to file a
complaint in the setting of a lawsuit, but it also has to do,
Senator, with whether to open a formal investigation, and this
is what I was talking about before. In our pattern and
practice, we have essentially three stages. One is the
preliminary inquiry, where we hear concerns about
unconstitutional patterns and practices by police departments.
We do what we can in terms of factual development to see if
there, if you will, is a ``there'' there. And then if there is
sufficient evidence, then it moves to the level of a formal
investigation, at which point it becomes public. And then, if
necessary, it proceeds to a lawsuit.
But I should say, since 1994, the Civil Rights Division has
never filed a pattern and practice lawsuit. The formal
investigations that have been opened have always resulted, so
far, anyway, in a settlement or a consent decree that is
favorable in the view of the Department of Justice. That is, it
takes care or remediates the problem that caused us to look at
the police department.
Senator Feingold. So, is it your belief that this
administration uses the same approach with regard to both the
filing of the lawsuit and the filing of the investigation?
Mr. Boyd. I think we are analyzing the law in the same way.
I think that what we are trying to do is to go into a situation
and early on gather all of the stakeholders, if you will, in
the problem, from the community folk who are affected by police
practices, government leaders, the command staff of the police
department, as well as the rank-and-file police officers, with
a view toward fixing the problem and not so much with a view
toward fixing the blame.
If blame has to be assigned at some point, we will do that,
but our view is that everybody has an interest in acknowledging
issues where improvement or reform needs to take place, and the
more people who have to be a part of that process for it to
work in the long run, the more they are consulted in a part of
that process early on, the less of a likelihood we will get
bogged down in litigation.
Senator Feingold. I appreciate that.
Mr. Boyd. Senator, if I----
Senator Feingold. I only have 1 minute left, so I want to
ask one more question. I understand what you are saying and I
appreciate it, but I am taking your answer to mean this does
not change the standard for initiating a lawsuit or commencing
an investigation despite the desire to try to resolve matters
in a consensual way.
Mr. Boyd. You are right, Senator.
Senator Feingold. Mr. Boyd, I understand that in the
Schenectady case, U.S. Attorney Daniel French forwarded
descriptions of more than a dozen alleged incidents of police
misconduct or abuse to the Civil Rights Division, but it took 1
year for the Division to authorize an investigation. I
understand that earlier this year, you recused yourself from
that case, but I am concerned about how long it took for the
Department to decide whether to proceed to investigation.
Why does it take so long for the Department to authorize an
investigation of a police department, and does the Civil Rights
Division have deadlines for determining whether to proceed with
investigation?
Mr. Boyd. Senator, as you correctly pointed out, I am
recused in that case so I cannot talk about the details of the
Schenectady case. But I can say that these investigations take
a lot of careful effort by the trial team, by the investigative
team and the Special Litigation Section of the Civil Rights
Division. They go out, they conduct interviews, they review
court pleadings, they talk to as many good sources, original
sources of information as they can, and then they sit down and
they do the evaluations and do the assessments.
The idea is that there is not a deadline at the front end
and the more careful the work that is done at the front end,
the more likelihood of success when something formal is
submitted or filed. So I am not so much concerned about how
long it takes. I am much more concerned about the quality of
the ultimate product, the quality of our ultimate judgments.
Schenectady, during the pendency of the referral of the
matter from the U.S. Attorney to the Civil Rights Division,
during that time, there were a number of Federal criminal
prosecutions of Schenectady police officers. So to the extent
that there was allegedly unlawful conduct going on, it was
being dealt with in the first instance by the criminal
prosecutors outside the context of the 14141 investigation. But
our key is to get it right and to do what is necessary in order
to get it right at the front end so that we are more
successful, ultimately, in fixing the problem.
Senator I also told you, to my knowledge, no formal 14141
lawsuits had been filed. I was incorrect. I had forgotten that
a formal suit was filed in the Columbus action, in Columbus,
Ohio. That is a pending case and I had just forgotten that it
was pending.
Senator Feingold. I am pleased to have that correction. My
understanding is that the investigation of the Cincinnati case
started pretty fast after the situation there, so I would just
make note of that and my time is elapsed.
Senator Schumer.
Senator Schumer. Mr. Chairman, thank you and I appreciate
it. First, I want to thank you for holding these important
hearings. I want to thank Assistant Secretary Boyd for being
here.
I have other pressing business, but I have some questions
in writing. I wanted to submit those and ask that you, Mr.
Boyd, answer those within, say, a week or so.
Mr. Boyd. I would be happy to, Senator.
Senator Schumer. They deal with predatory lending, fair
housing, discrimination in housing, which is an area that has
concerned me, and I again thank you, Senator Kennedy, for
running these hearings and thank my colleagues.
Senator Kennedy. [Presiding.] Senator Durbin.
Senator Durbin. Thank you very much, and Mr. Boyd, thank
you for joining us today.
I suppose that there are two or three areas that I would
like to explore with you very briefly, and one of them relates
to the whole question of staffing at the Division. I suppose
what I have been reading suggests that there has been an effort
to move career employees out of the Civil Rights Division to
other assignments, both permanent and temporary. I can
understand in light of 9/11 that the Department of Justice is
trying to allocate its resources most effectively to protect
this Nation, but I am anxious to hear your explanation in
reference to several specific transfers and to the policy in
your Division.
First, I would like to ask you about the detailing of
Katherine Baldwin, Section Chief of the Employment Litigation
Section to the Civil Division. Was that a voluntary or
involuntary detail?
Mr. Boyd. I asked Ms. Baldwin to take the laboring oar with
respect to that very significant employment discrimination task
force that we had recently created in response to really a
decades-old expression of concern from lawyers handling
employment discrimination cases, both within main Justice, and
more importantly, out in the 94 U.S. Attorneys Offices across
the country.
I asked her--but it was a directive, I am not being cute--
because of her experience, her temperament, her expertise in
this area of the law, the perspective that she brings as an
experienced and aggressive civil rights enforcer, as well as
her, what I had observed, what I would describe as excellent
teaching skills, which is part of what this task force seeks to
do. I thought that within the Division, the Civil Rights
Division, that there was really no one else who was close in
terms of all the qualifications we were looking for for the
person that would really take the laboring oar on that task
force.
Senator Durbin. So did this leave a gap in terms of the
talent pool in the Civil Rights Division because of your
decision?
Mr. Boyd. It really did not, Senator. I am glad you asked
the question because what it did, at least temporarily, was
give me the opportunity to elevate to the Acting Chief position
an experienced Hispanic American lawyer in the Civil Rights
Division, David Palmer, and although I am delighted at the
opportunity to be able to give that incredibly good and
experienced and committed public servant an opportunity to
serve as Acting Chief.
I am sorry to say that Mr. Palmer is the first Hispanic
American to serve as a section chief of one of the litigating
sections in the 45-year history of the Civil Rights Division,
and so from my perspective, it was a win-win proposition. Ms.
Baldwin was going to be taking the leading and the laboring oar
with respect to a very important initiative of this Department.
Senator Durbin. Is hers a temporary reassignment?
Mr. Boyd. It is, and I believe it is 120 days, or 240 days.
Senator Durbin. Is she going to return to her previous
position?
Mr. Boyd. My expectation is that she would, but I often get
asked questions about future staffing decisions, Senator, and I
try not to be cute, but I say it depends on all the important
circumstances that are then present. But when I assigned her to
this task force, the expectation was that it would be
temporary.
Senator Durbin. Can you tell me, as of today, how many
career Civil Rights Division attorneys have been detailed out
of the Division?
Mr. Boyd. I do not know the answer as I sit here, but very
few, and let me say this, if I may, Senator. I am told--I was
not here and I certainly was not keeping score, but I offer it
just as a matter of perspective--I am told that in the prior
administration, there were five section chiefs, five out of 11
section chiefs, five out of nine litigating section chiefs in
the prior administration that were permanently reassigned. As a
matter of perspective, I have reassigned temporarily one
section chief.
I would also say, Senator, that when I arrived in the Civil
Rights Division, there were three front office personnel from
the prior administration occupying senior front office
positions--Deputy Assistant Attorney General, Counsel to the
Assistant Attorney General--from the prior administration,
including the prior administration's Chief of Staff. I kept all
three of them on my front office staff either as Deputy
Assistant Attorneys General or as Counsel to the Assistant
Attorney General to me. So I cannot say that that is
unprecedented, but I would be surprised if there were any prior
administration that kept in the front office the previous
administration's Chief of Staff.
Senator Durbin. There are unconfirmed reports that about 20
or 30 Division attorneys have been assigned to terrorism
investigation and prosecution and that you are seeking
additional attorneys to leave your Division for terrorism work.
Is that correct?
Mr. Boyd. I cannot verify the number, but there have been a
number of attorneys who have volunteered to assist the Criminal
Division in the really overwhelming burden they have of
reviewing evidence and documents with respect to the terrorism
investigation. So, yes, there have been not an insignificant--
--
Senator Durbin. Do those numbers sound accurate?
Mr. Boyd. They sound like a correct ballpark figure.
Senator Durbin. So has that had any impact on the quality
of work in the Civil Rights Division?
Mr. Boyd. It has had no impact on the quality, and I do not
think, candidly, Senator, that I have at least seen or am aware
of it having remarkably an impact on the quantity. I mentioned,
and you were not here for it, when Senator Sessions was asking
questions about the remarkable commitment and productivity of
the lawyers who work with me in the Civil Rights Division, and
I think what it has meant is that--it is just like when the
star player gets injured or a number of star players are
injured, other people pick up the slack. I think in large
measure----
Senator Durbin. I would think that the departure of 20 or
30 of your better attorneys to an important assignment, no
doubt, would have some measurable impact, but I will take that
at face value.
Mr. Boyd. Senator, we have almost 400, and I am not sure
that all those persons were attorneys. I think some may have
been legal assistants.
Senator Durbin. Let me ask you about this. There seems to
be--I do not understand it and I am going to ask you to explain
it--there seems to be an interesting contrast here. When you
have been asked about speaking directly to defendants in cases
involving civil rights, like Adam's Mark, you have argued that
this kind of open dialog sometimes leads to progress being made
and goals being achieved, and you do not think that that is
necessarily in and of itself a bad idea. And yet we see
reports, press reports, that career employees within your own
Division are being cautioned not to speak to people on Capitol
Hill or to the press or to organizations outside of the
Department of Justice.
Explain to me the standard that you are applying here,
where on one hand it is a reasonable and thoughtful thing to
have this dialog, and yet on the other hand it is dangerous for
your employees to speak out of school.
Mr. Boyd. Thank you for that question, Senator. I am glad
you raised it, because it has come up in the media and I have
not had a chance to address it, so I appreciate you giving me
that opportunity.
There is a clear distinction and it is this. I have a
complete open door policy both within the Division and outside
the Division. That is to say, any responsible voice who wants
to weigh in on the merits of an issue that is before us, I am
happy to hear from. It helps us get it right.
It is why I have met probably on at least 20 to 30
occasions with representatives of the civil rights community
with respect to a whole range of issues. I also repeatedly, in
addressing the career attorneys in the Civil Rights Division,
encouraged those attorneys to come talk to me about their
cases, to come talk to me about pending issues that they feel
strongly about, especially if they disagree with where they
think an ultimate decision is going, and I should say that in
the overwhelming preponderance of cases we have, over 99
percent of the cases, there is absolutely no dispute about what
to do and there is consensus.
In the less than 1 percent of the instances in which there
is a difference in how we should proceed, I encourage our staff
attorneys to come see me. What I often say is--fortunately, I
do not need a lot of sleep, Senator. I come in at somewhere
around 6 a.m. and I leave around 8 to 8:30 p.m. and I say my
door is open, either on formal scheduled invitation or if you
just show up during those hours, I will see you.
Senator Durbin. I accept that premise. Now let us go to the
second part----
Mr. Boyd. Yes. The second part of the question is it is
very simple in this respect, Senator. Internal deliberations,
internal law enforcement deliberations that the Department
engages in are deliberations about how to handle a pending law
enforcement matter. These lawyers in the Department of Justice,
by Justice Department rule and regulation, and also by rule and
regulation of the sanctioning bodies of the bars of the several
States, require that confidential information not be disclosed
to outside parties. It is----
Senator Durbin. So it is strictly limited to confidential
information cannot be disclosed----
Mr. Boyd. It is attorney-client information, but it is the
substance of our deliberations about pending law enforcement
matters.
Senator Durbin. So there is no prohibition against your
career employees or other Civil Rights Division employees
having conversations about the policy, for example, of how
civil rights laws are being enforced in the most general way
without reference to a specific case? I think what we have
here, and reports out of the Washington Post, the most recent
article, suggest that some employees within your Division do
not see this as being such a clear line that you have drawn.
They feel that you have discouraged even the most basic dialog
about the policy and enforcement of civil rights laws under the
Bush administration's Department of Justice, and that, of
course, raises some troubling possibilities.
So can you clarify that in terms of a memo that you are
going to present to your employees so that there is no doubt
that you are talking about conversations relating to specific
cases before the Civil Rights Division?
Mr. Boyd. Yes, Senator, and let me say this. If it were
true, what you have suggested the Post has reported or some
people have said, if it were true, it would be troubling. I am
happy to be able to tell you it is not only not true, it is
patently false.
We have career attorneys in the Civil Rights Division who
every week, if not every day, are speaking to a wide range of
organizations, groups, symposia, town meetings about the very
things that you are talking about. It happens literally every
day. We have done, for example, with respect to our response to
backlash discrimination in the wake of September 11, we have
literally conducted hundreds of outreach meetings----
Senator Durbin. Let me use one specific example, because
this article relates to your September 28 memo, issued after
some lawyers in the Civil Rights Employment Litigation Section
voiced dissent internally over the government's withdrawal from
an employment discrimination case brought during the Clinton
administration. Now, that clearly is not a pending case or
would jeopardize attorney-client privilege, as I read it on its
face, if this has been a decision by the Civil Rights Division
under your leadership to withdraw from a case that was already
being undertaken by the Department.
So, you are saying, from your point of view, that is all
right. You do not have a problem with people speaking out if
they disagree with the policy in the Civil Rights Division?
Mr. Boyd. No. People can offer whatever judgment they want
about whether a particular decision is, on the merits, right or
wrong. What they are not permitted to do is to disclose the
internal deliberations in which they engaged as advising me.
They are not allowed to--and this is well settled Department of
Justice policy that dates back generations, it is also well
settled lawyer professional responsibility ethics--you are just
simply not allowed to discuss the details of client confidences
or internal Department of Justice deliberations.
Now, anybody in the world is free to say, Boyd was right or
wrong in a particular discussion with anyone. I mean, Senator,
believe it or not, I value, I value dissent. I value dialog. I
value difference because it helps us get it right.
Senator Durbin. Let me just suggest, because my time is up,
it might be, if that is your philosophy and your point of view,
it might be worthwhile for you to consider another memo to the
Division, because at least there is some uncertainty among the
attorneys who serve with you.
Mr. Boyd. Thank you, Senator, and I will, and if I can
respectfully just say very briefly, the memo to which you refer
is not a memo that I prepared or had any role in. It was a memo
that was drafted at the request of a career lawyer within the
Department of Justice, David Margolis, who is one of the most
respected and revered members of the Department of Justice, who
served many administrations, both Democratic and Republican,
and it was prepared by a member of the Office of Professional
Responsibility. So it simply dealt with very clear-cut
professional and ethical obligations of lawyers. It has nothing
to do at all with appropriate dialog or dissent about general
positions.
Senator Durbin. Thank you very much. Thanks, Mr. Chairman.
Mr. Boyd. Thank you, Senator.
Senator Kennedy. Senator Edwards.
Senator Edwards. Thank you very much, Mr. Chairman.
Mr. Assistant Attorney General, good afternoon.
Mr. Boyd. Good afternoon, Senator.
Senator Edwards. I want to talk with you about voting
rights. As you know, there were a lot of problems in the 2000
election and none of us want to see those problems show
themselves again in the upcoming election.
Mr. Boyd. Sure.
Senator Edwards. As you certainly know, the Justice
Department has a lot of responsibility for stopping those
problems, particularly since our election reform bill that has
passed the Senate is in conference now and has not become law.
In December of this last year, I wrote to the Attorney
General and asked several questions, including whether the
Justice Department initiated any enforcement actions based upon
the problems in the 2000 election. In February, I received a
response from the Justice Department. The response did not
identify any enforcement actions. It said, and I am quoting
now, that several investigations were ``open and pending'' and
that ``we expect to make final decisions in the near future.''
It has now been over 18 months since the election of 2000. How
many voting rights actions has the Civil Rights Division filed
arising out of that election?
Mr. Boyd. Senator, thank you for the question. This is an
area that I thought we would get to sooner or later and I am
glad we got to it. I thank you for raising the issue.
We have not filed any lawsuits yet, and if I can perhaps,
to answer your question more fully, just lay out as succinctly
as I am able kind of the process and where things are.
In the aftermath of the 2000 Presidential election, the
Civil Rights Division received almost 11,000 complaints,
inquiries, expressions of dissatisfaction about various things,
people offering opinions about the election, the outcome, the
judicial proceedings in the wake of the election, a whole
variety of things. We retained and hired contractors to help us
deal with that volume of calls, almost 11,000 calls. We also
coordinated with the NAACP and the Florida Attorney General's
Office, who were also collecting information or complaints
about the election or the election processes.
By January of 2001, the career staff in the Voting Section
of the Civil Rights Division had whittled all of that
information down to 12 live investigations, 12 potential cases,
if you would. Later, two cases were added, so 14 in total out
of the mass of 11,000 contacts or communications, and I should
underscore that most of those communications were not
substantive complaints. They were expressions of
dissatisfaction or offering opinions or points of view about
what was transpiring. So most of that did not fall within our
enforcement jurisdiction.
Since that time, those open investigations have been
whittled down further, and I should tell you that kind of the
range of issues that those 14 investigations dealt with were
allegations of improper voter roll purges, registration
problems, failures to provide accesses that the law requires
for disabled voters, the failure to provide bilingual materials
in covered jurisdictions, covered jurisdictions within the
meaning of Section 203 of the Voting Rights Act, allegations
that limited English proficient voters had been denied
assistance which they are entitled to at the polls if they so
seek it, and also some allegations of disparate treatment of
some minority voters. So that is kind of the universe of what
we were dealing with.
Since that time, we have made great progress and I have
authorized the filing of several lawsuits, both in Florida and
outside of Florida. Because those are ongoing investigations,
because they are the present subject of pre-filing
negotiations, which is a typical practice in this area, I
cannot really comment on them further.
But it certainly was my hope that I would, by the time of
this hearing, would be able to say more about it, but I simply
will say that I have authorized the filing of some lawsuits,
and the way it typically unfolds is that there are pre-filing
negotiations, and very often, if the jurisdictions are
cooperating, which I understand from our career Voting Section
staff, the jurisdictions involved here, the subject
jurisdictions are, in fact, working cooperatively with us to
reach some enforceable agreements with respect to those
identified problems. What will typically happen is the
complaint will eventually be filed, but simultaneous with the
filing of the complaint will be a settlement agreement or a
consent decree that has the imprimatur of the court.
Senator Edwards. Let me make sure I followed all that. So
you have done some investigating. You have filed no lawsuits so
far, is that right?
Mr. Boyd. We have not filed any so far, that is correct,
Senator.
Senator Edwards. You yourself have personally authorized
the filing of a number of lawsuits. Can you tell me how many?
Mr. Boyd. That is correct. Senator, I would prefer to stay
away from it at this point. We will, at the time the
investigation and the negotiations are concluded, will
certainly be prepared to make that as a matter of public
record.
Senator Edwards. What problem would there be in telling me
how many you have authorized----
Mr. Boyd. I do not want to----
Senator Edwards. I am just trying to get some sense----
Mr. Boyd. No, I do not want to be coy, Senator. It is five.
Senator Edwards. Five?
Mr. Boyd. Five.
Senator Edwards. OK. And out of those five lawsuits, in how
many of those lawsuits are you engaged in what you would
consider serious pre-filing negotiations?
Mr. Boyd. Every single one of them, Senator.
Senator Edwards. Do you have any expectation, based upon
the present status of those negotiations, on the likelihood in
each case of--I am not asking you to go one by one, but the
likelihood in each case of actually reaching an enforceable
settlement agreement prior to filing?
Mr. Boyd. My hope, my aspiration, and my expectation is
that in each of those, we will reach an enforceable agreement
prior to the filing of the lawsuit. My understanding is that
the jurisdictions have been cooperating, that they have
acknowledged certain deficiencies that we have identified and
that--and so my expectation--of course, there are no
guarantees, but my expectation is that at the time we file suit
in each of those five instances, that we will have either
agreed upon enforceable settlement agreements or consent
decrees that have been assented to.
Senator Edwards. Of course, you know that my concern, our
concern about this is reaching some conclusion that is in
effect by the 2002 elections. Can you tell me what geographical
areas are covered by these suits?
Mr. Boyd. They all involve, with two exceptions, the State
of Florida. Can you hold on for a second?
Three of them are in Florida, Senator, and the others are
in Missouri and Tennessee.
Senator Edwards. OK. So the five suits you have authorized,
three are in the State of Florida, two are in Missouri----
Mr. Boyd. One is in Missouri and one is in Tennessee.
Senator Edwards. One is in Tennessee. The lawsuits in
Florida, do they cover the entire State of Florida or are they
isolated areas of the State?
Mr. Boyd. No, they cover particular counties in Florida.
Senator Edwards. OK. Are you able to tell me which counties
are involved?
Mr. Boyd. I am not. I am not, Senator.
Senator Edwards. OK.
Mr. Boyd. Although I know that you are a trial lawyer and
you are doing the progressive cross examination to get to what
I said I could not give you. I appreciate that, but I cannot,
Senator.
Senator Edwards. What about the States of Tennessee and
Missouri? Are those also regional lawsuits?
Mr. Boyd. They are regional specific. They are district
specific.
Senator Edwards. OK.
Mr. Boyd. Municipality specific.
Senator Edwards. Can you tell me what substantive issues
are involved in the cases?
Mr. Boyd. The issues that I talked about, failure to
provide bilingual assistance and bilingual materials in
jurisdictions that are covered by Section 203 of the Voting
Rights Act. In at least one instance, there are allegations of
disparate treatment of minority voters. In another instance,
there is a failure to provide for access to disabled voters.
And also, under Section 208 of the Voting Rights Act, the
failure to allow limited English proficient voters to have
assistance in voting at the polls.
There is widespread misunderstanding among poll workers a
lot of places that a voter cannot be helped by someone else in
the voting process and that is a misconception. That is a
misunderstanding of voting rights laws. I understand Section
208 of the Voting Rights Act, for English proficient people,
they have a right to be assisted at the polls if they so
choose.
Senator Edwards. Can you tell me what the substantive
issues are in the three Florida cases, not specific, one by
one, but just in general, what issues are involved? Are they
the ones you just mentioned?
Mr. Boyd. Yes, the ones I just mentioned.
Senator Edwards. OK, the same issues involving Florida?
Mr. Boyd. It is Florida.
Senator Edwards. OK.
Mr. Boyd. There are, in some----
Senator Edwards. Missouri and Tennessee, are they
different?
Mr. Boyd. And some of the issues also involve, as I
understand it, allegedly improper voting roll purges as well as
NVRA--motor-voter--Act violations.
Senator Edwards. I am sorry, could you give me the last
part one more time?
Mr. Boyd. Yes. The NVRA, which is the National Voter
Registration Act, requires that voting jurisdictions make
enrollment and registration materials available in certain
public places and there are allegations of violations of that
Act.
Senator Edwards. Well, of course, what we need to make sure
is that we take steps quickly enough to ensure that the
problems that occurred in the last election do not occur in the
next election, and I assume that would be your goal in this
process, is that correct?
Mr. Boyd. That is exactly right, Senator, and you missed my
earlier dissertation. You were spared that dissertation. But
one of the things I talked about is it is important for us to
move promptly but it is more important that we proceed in a
thorough and careful way to make sure that we get it right, and
that is what we are really trying to do, and we are trying to
get it right without regard to the political implications for
anyone.
We are, as I said during my confirmation hearing, we are
going to follow the investigative trail, the evidence, wherever
it goes, without regard to politics, and without regard to who,
if anyone's, ox is being gored, and that is precisely what we
are doing in Florida and we are trying to take the time
necessary to get it right.
Senator Edwards. When will the lawsuits be filed?
Mr. Boyd. I cannot give you a specific date. As I said----
Senator Edwards. Can you give me a timeframe?
Mr. Boyd. You can draw a reasonable inference from the fact
that I was hopeful that I would be able to announce them prior
to today, but it will be, I am very confident, well in advance
of the primaries for the November 2002 elections.
Senator Edwards. Which means what, within the next 30 to 60
days?
Mr. Boyd. I would hope so. I would be surprised,
disappointed, if we were not. But again, I do not want to be
nailed down to a particular deadline, but I do not think that
the date you have offered is unreasonable. I think that that is
likely or probable.
Senator Edwards. OK. So you think it is likely or probable
that the lawsuits we are talking about will be filed in the
next 30 to 60 days, is that what you are saying?
Mr. Boyd. Right, and it would be my hope that they would be
filed contemporaneously with settlement agreements or consent
decrees that are enforceable.
Senator Edwards. Thank you very much.
Mr. Boyd. Thank you, Senator.
Senator Edwards. Thank you, Mr. Chairman.
Senator Kennedy. Senator Sessions, I have just one area in
conclusion. Thank you.
In the private meetings, you have indicated the Department
is still studying the hate crimes bill. Has the Department
finished its study of the bill and reached a conclusion about
support for S. 625?
Mr. Boyd. We have not, Senator, but I will say, I do not
think I am disclosing any of our ongoing deliberations to say
that we are happy with your continued leadership on this issue,
the leadership of Senator Hatch. I know Senator Specter
continues to be concerned about this issue. Certainly, we are
happy to see provisions in S. 625 that recognize the role that
all of the sovereigns, if you will, have in combatting hate
crimes, State and local government. I note that S. 625 has
provisions that would provide Federal investigative and
prosecutive assistance to State and local jurisdictions who are
dealing with hate crimes, that it also would permit the
Attorney General to give grants to those jurisdictions and also
provides for funding over the course of the next 2 years and I
think we are very happy with those aspects of the bill and we
continue to deliberate the important issues that the remainder
of S. 625 raise.
But I can tell you, and the Senator has heard me say this
before, my background is as a Federal prosecutor, as you know,
and I can just say that the tools that you give us, that the
Congress gives us, will be arrows in our quiver that we will
use without hesitation, Senator.
Senator Kennedy. The leader has indicated that we will have
this measure, S. 625, on the floor either at the end of this
week or when we return, so I draw that to the attention of the
Department for their consideration.
On the hate crimes, and I conclude from what you have said
that you still have not taken a position on the specific
legislation?
Mr. Boyd. That is correct, Senator.
Senator Kennedy. On May 2, you wrote a letter to me on the
questions about the hate crimes. Excuse me, Daniel Bryant, the
Assistant Attorney General, wrote to me about the important
work. ``Thank you for meeting with Assistant Attorney General
Boyd. This letter provides additional information your staff
requested.'' Point one makes the summary of the Civil Rights
Division and point two is hate crime prosecutions that are
unrelated to the events of September 11. ``The Division has
prosecuted 25 cases under the hate crimes statute since January
20, 2001,'' and then it, in addition, has initiated hate crimes
investigations, 327 since that date.
Relating to the events of September 11, the Division has
prosecuted ten cases and has investigated 350. Then you provide
the list of the cases the Department has provided. In the list
of the cases, of the ones that you have indicated of the civil
rights enforcement outreach following September 11, only three
of the ten are actually under the hate crimes statute. The rest
of them are not. And of the 25 hate crimes, not including
Attachment 2, the 25 cases, there are only three cases that use
245, U.S.C. Section 241 and 245.
As I understand it, we were told the Division had
prosecuted 25 hate crimes in the last 16 months that are
unrelated to September 11 and an additional ten hate crimes
stemming from September 11. Of the 25 cases unrelated to
September 11, only three were brought under 245 and only three
of the ten post-September 11 prosecutions were brought up under
245. That means barely 17 percent of the cases listed by the
Department as hate crime prosecutions were actually brought
under the Federal hate crimes statute.
Mr. Boyd. Senator, I must confess, the numbers I am looking
at are different. We had, and I think reported to you that we
had in the wake of September 11 approximately 350 backlash hate
crime investigations and the number of non-backlash hate crime
investigations was, I believe at the time we spoke, 327, which
I now understand is up to 343.
But as I sit here, I cannot say with any kind of certainty
with respect to which particular statutes those cases are
charged under. But as the Senator knows, we have got a wealth
of statutory authority, 241, 242, 245, 247, and certainly some
of these hate crimes, particularly the backlash hate crimes,
are brought under 247, which is damage or destruction to a
place of worship, and in the backlash context, that would
certainly cover the mosques that have been attacked either by
fire or some other means.
Senator Kennedy. Well, there are two points that I want to
mention. When asked about the prosecutions that are unrelated,
the Division states it has prosecuted 25 cases under hate
crimes statutes since, and ten cases of backlash discrimination
as well as having investigated many others. Yet, only three
used the statute. So at a time that Congress is trying to pass
legislation, you are indicating to us that the numbers that you
are able to use in terms of the hate crime statute are
inflated. You are prosecuting them under other statutes. That
is one of the points that we are getting to in terms of the
hate crimes. It has to be under Federal activity under the
existing statute, but under our bill, obviously, it is much
broader.
Mr. Boyd. Senator, let me just offer this----
Senator Kennedy. This is an area that we are enormously
interested in. In fairness, I want to give you a chance to look
through this. This is a letter not from you, but it is from the
Justice Department and it is dealing with hate crimes and it
lists the numbers here. Rather than asking you to go on though,
I would be glad to have you answer.
Mr. Boyd. Senator, I am looking at the attachment that
apparently accompanied what you are talking about and I am
seeing--I am not going to sit here and add each one of them up,
but a plethora of cases that are brought under hate crimes
statutes. I see a number that are brought under 42 U.S.C. 36-
31, which is hate crimes in a housing context----
Senator Kennedy. That is housing discrimination.
Mr. Boyd [continuing]. Housing context, that is right.
There are hate crime cases that are charged under 241, 245, and
they go on and on.
So I certainly concur with your point, Senator, that the
proposed legislation that you sponsored, S. 265, is broader
than Section 245 of Title XVIII. That is inarguably true. I
just simply want to make sure the record is clear that we are
bringing and have brought a number of hate crime prosecutions.
What I am looking at looks to be in excess of 30 cases laid out
that are not related to September 11 that are brought under a
wide range of statutes from 245 to 247 to 241 of Title XVIII
and then Title 42, Section 36-31, as well. There are 27 since--
--
Senator Kennedy. Let me ask, do you believe that the
Federal Government and the Civil Rights Division has less of an
interest in combatting hate-motivated violence against gays and
lesbians than hate-motivated violence against individuals based
on race or religion or national origin?
Mr. Boyd. Senator, I believe that as a Federal prosecutor
and as the head of the Civil Rights Division, our mission and
our interest is in protecting all people against any kind of
violence, especially bias-motivated violence that is based on
some impertinent or immutable characteristic of a person. So
with respect to the positions we take about your legislation,
the Department will speak with one voice and I would
respectfully decline until----
Senator Kennedy. I am trying to get that voice to be here
this afternoon.
Mr. Boyd. No, I understand that, but I also know, Senator,
that you understand that the Department speaks with one voice
on a matter of policy and my positions are positions that I
share and I can assure you I share with the Attorney General of
the United States as we try to determine what our voice will
be.
Senator Kennedy. Just finally, on the Brennan case, was
there a written opinion on the Brennan case? Could you provide
that to us?
Mr. Boyd. I believe there was a written opinion, when the
original trial team informed me that they had sought an opinion
about their professional responsibilities and obligations in
Brennan, that there was a written advisory from the Office of
Professional Responsibility.
Senator Kennedy. Would you provide that?
Mr. Boyd. Let me say this, Senator. If it is appropriate to
provide it as a matter of policy, I would be happy to provide
it. It would be helpful for your understanding fairly and
accurately what went on here. I offer the following caution,
though. As I think the Senator knows, it has been the
longstanding policy of the Department not to----
Senator Kennedy. It has been provided in the past, I would
like to get that.
Mr. Boyd. Senator, let me offer this. The Brennan case, in
the work that we do to protect victims of discrimination, is
really important and I would be delighted at any time at your
urging to continue our conversation about our position in
Brennan or any other case that we are in the process of dealing
with. I am happy to have your input. I am happy to have the
dialog. The more committed minds that are looking at an
important issue, the better opportunity we have of getting it
right.
Senator Kennedy. I will ask that Senator Leahy's statement
be included in the record.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Senator Kennedy. I have no further questions. I want to
thank you very much, General Boyd. You have great
responsibility in this area of civil rights and we want to work
with you to make sure that this is done in a way which
represents the intent and the letter of the law. Our Committee
is grateful for your presence here.
Senator Sessions. Mr. Chairman, may I offer for the record
a statement of Senator Hatch, Ranking Member on the Committee,
in which he praises Mr. Boyd's leadership since he has been in
the Civil Rights Division.
[The prepared statement of Senator Hatch appears as a
submission for the record.]
Senator Sessions. Also, I would offer an article by John
Leo referring to the lawsuit filed by the previous
administration over the use of Indian nicknames by high
schools, a case that I cited, U.S. v. Williams, in which the
Civil Rights Division awarded, I believe, $63,000 in fees for
improper actions during the time before Mr. Boyd took over, and
another article I referred to from the Wall Street Journal.
Senator Kennedy. Fine. They will be included as part of the
record.
Senator Sessions. I would also ask that a statement from
Senator Grassley be included in the record.
[The prepared statement of Senator Grassley appears as a
submission for the record.]
Senator Kennedy. The hearing will stand in recess.
[Whereupon, at 4:40 p.m., the hearing was adjourned.]
[Questions and anwers and submissions for the record
follow.]
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