[Senate Hearing 106-517]
[From the U.S. Government Publishing Office]
S. Hrg. 106-517
COMBATING HATE CRIMES: PROMOTING A RESPONSIVE AND RESPONSIBLE ROLE FOR
THE FEDERAL GOVERNMENT
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
on
EXAMINING HOW TO PROMOTE A RESPONSIVE AND RESPONSIBLE ROLE FOR THE
FEDERAL GOVERNMENT ON COMBATING HATE CRIMES, FOCUSING ON THE
RELATIONSHIP BETWEEN THE FEDERAL GOVERNMENT AND THE STATES IN COMBATING
HATE CRIME, ANALYSIS OF STATES' PROSECUTION OF HATE CRIMES, DEVELOPMENT
OF A HATE CRIME LEGISLATION MODEL, AND EXISTING FEDERAL HATE CRIME LAW
__________
MAY 11, 1999
__________
Serial No. J-106-25
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
64-861 CC WASHINGTON : 2000
COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire
Manus Cooney, Chief Counsel and Staff Director
Bruce A. Cohen, Minority Chief Counsel
(ii)
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Hatch, Hon. Orrin G., U.S. Senator from the State of Utah........ 1
Kennedy, Hon. Edward M., U.S. Senator from the State of
Massachusetts.................................................. 5
Leahy, Hon. Patrick J., U.S. Senator from the State of Vermont... 30
CHRONOLOGICAL LIST OF WITNESSES
Statement of Eric H. Holder, Jr., Deputy Attorney General, U.S.
Department of Justice, Washington, DC.......................... 7
Panel consisting of Judy Shepard, Casper, WY; Jeanine Ferris
Pirro, Westchester County district attorney, White Plains, NY;
Kenneth T. Brown, chief deputy and prosecuting attorney for
Albany County, Laramie, WY; Robert H. Knight, director of
cultural studies, Family Research Council, Washington, DC; Burt
Neuborne, John Norton Pomeroy professor of law, New York
University School of Law, New York, NY; and Akhil Reed Amar,
professor of law, Yale Law School, New Haven, CT............... 27
ALPHABETICAL LIST AND MATERIALS SUBMITTED
Amar, Akhil Reed:
Testimony.................................................... 47
Prepared statement........................................... 49
Brown, Kenneth T.: Testimony..................................... 34
Hatch, Hon. Orrin G.:
Prepared statements of:
Hon. Ron Wyden, U.S. Senator from the State of Oregon.... 4
Hon. Gordon Smith, U.S. Senator from the State of Oregon. 4
Holder, Eric H., Jr.:
Testimony.................................................... 7
Prepared statement........................................... 18
Knight, Robert H.:
Testimony.................................................... 35
Prepared statement........................................... 38
Neuborne, Burt:
Testimony.................................................... 41
Prepared statement........................................... 43
Pirro, Jeanine Ferris: Testimony................................. 32
Shepard, Judy: Testimony......................................... 27
APPENDIX
Additional Submissions for the Record
Prepared statements of:
American Civil Liberties Union............................... 55
Center for Women Policy Studies.............................. 58
Mrs. Catrina Durr's Law Students, Thornton Township High
School, Harvey, IL......................................... 59
Mrs. Linda Franklin's Third Period Students, Thornton
Township High School, Harvey, IL........................... 60
Timothy Lynch................................................ 60
National Gay and Lesbian Task Force.......................... 63
NOW Legal Defense and Education Fund......................... 64
Riki Anne Witchins........................................... 73
Letters from:
George Deukmejian, vice chairman, Criminal Justice Legal
Foundation, to Senator Hatch, dated May 7, 1999............ 74
Ronald Seigel, first vice chairperson, Michigan Citizens With
Disabilities Caucus, to Senator Hatch, dated May 7, 1999... 75
Alice Ray, president and CEO, Ripple Effects, to Senators
Hatch and Leahy, dated May 7, 1999......................... 79
Gordon J. Campbell, Victims Services, dated May 11, 1999..... 80
COMBATING HATE CRIMES: PROMOTING A RESPONSIVE AND RESPONSIBLE ROLE FOR
THE FEDERAL GOVERNMENT
----------
TUESDAY, MAY 11, 1999
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 10:19 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch (chairman of the committee) presiding.
Also present: Senators Specter and Kennedy.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
The Chairman. Good morning, and welcome to today's hearing.
I apologize for being late, but it is one of those times where
one of my major bills came up on the floor and I had to start
off the debate, and so I apologize for being so late.
It is good to have you here, Mr. Holder, before the
committee.
Mr. Holder. Good to see you Mr. Chairman.
The Chairman. Welcome to today's hearing, entitled
``Combating Hate Crimes: Promoting a Responsive and Responsible
Role for the Federal Government.'' We are very pleased to have
Deputy Attorney General Eric Holder with us today, as well as a
panel of other very impressive witnesses whom I will introduce
after we hear from Mr. Holder.
But I want to give a special recognition and thanks to Ms.
Judy Shepard, to whom I am especially grateful for appearing
today. As most of you know, Ms. Shepard suffered a tragedy no
mother should have to endure--the loss of her son to an act of
brutal violence. It was a small effort for me to support a
resolution that passed the Senate last year condemning
Matthew's murder in the strongest terms, and pledging action to
bring an end to such crimes.
But your appearance today, Ms. Shepard, reflects a great
effort, one that will salvage from the tragedy of Matthew's
death a nationwide recognition and condemnation of the brutal
manifestation of hate that prematurely ended his life and
devastated your family.
Today's hearing will involve facts and issues that are at
once staggering and difficult. Some of our witnesses will
confront us with facts that expose an ugly, bigoted and violent
underside of some in our country, facts that rivet our
attention and cannot help but move us to embrace virtually any
measure appearing to stem this bigotry.
But the hearing will also bring us face to face with the
foundations of our constitutional structure, namely the first
principles of federalism that for more than two centuries have
vested States with the primary responsibility for prosecuting
crimes committed within their boundaries.
Today's hearing brings us to this intersection between our
well-intentioned desire to investigate, prosecute, and
hopefully end these vicious crimes, and our unequivocal duty to
respect the constitutional boundaries governing any legislative
action we take. It is my expectation that at today's hearing we
will also bring a commitment to do what Congress can do to
redress these crimes.
Indeed, the aim of this hearing is not merely to focus
attention on the scourge of hate crime, but to consider those
efforts that can most effectively be taken to stop hate crimes.
Though we will hear a broad array of perspectives from our
witnesses today, there is one point about which I think we can
all agree, and that is that the actions constituting these hate
crimes are wrong in all respects.
Let me state unequivocally that as much as we condemn all
crime, hate crime can be more sinister than nonhate crime. A
crime committed not just to harm an individual but out of the
motive of sending a message of hatred to an entire community,
oftentimes a community defined on the basis of immutable
traits, is appropriately punished more harshly or in a
different manner than other crimes.
This is in keeping with the longstanding principle of
criminal justice as recognized recently by the U.S. Supreme
Court in a unanimous decision upholding Wisconsin's sentencing
enhancement for hate crimes that the worse a criminal
defendant's motive, the worse the crime.
Moreover, hate crimes are more likely to provoke
retaliation. They inflict deep, lasting and distinct injuries,
some of which will never heal, on victims and their family
members. They incite community unrest, and ultimately they are
downright un-American. The melting pot of America is,
worldwide, the most successful multiethnic, multiracial and
multifaith country in all recorded history. This is something
to ponder as we consider the atrocities routinely sanctioned in
other countries like Serbia today, committed against persons
entirely on the basis of their racial, ethnic or religious
identity.
So while all of us would agree on the objective of dealing
with the problem of hate crimes, our exchange today and
throughout this 106th Congress must be largely about the
appropriate means to best accomplish that objective. And so it
is that the title of today's hearing speaks of, ``promoting a
responsive and responsible role,'' for the Federal Government
in combating hate crime.
In the face of some of the recent hate crimes that have
riveted public attention and have unfortunately made the name
James Byrd synonymous with Jasper, TX, and the name Matthew
Shepard synonymous with Laramie, WY, I am committed in my view
that the Senate must act and speak against hate crimes.
Indeed, I am on record with my view that the Federal
Government can play a valuable role in responding to hate
crimes, having sponsored the Hate Crimes Statistics Act of 1990
with my friend, Senator Kennedy. But any Federal response, to
be a meaningful one, must abide by the constitutional
limitations imposed on Congress and be cognizant of the
limitations on Congress' enumerated powers that are routinely
enforced by the courts. This is more true today than it would
have been even a mere decade ago, given the significant revival
by the U.S. Supreme Court of the federalism doctrine in a
string of decisions beginning in 1992.
For the primary benefit of the scholars we have brought
here today, let me emphasize that I am particularly concerned
with the Court's restrictions on Congress' powers to legislate
under section 5 of the 14th amendment and under the Commerce
Clause: City of Boerne, invalidating the Religious Freedom
Restoration Act--again, a bill that the two of us have done--
under the 14th amendment; Lopez, invalidating the Gun-Free
School Zones Act under the Commerce Clause; and Brzonkala, a
fourth circuit decision invalidating one section of the
Violence Against Women Act on both grounds.
I have already given a great deal of personal thought to
this matter in an effort to arrive at a Federal response to
hate crimes that is not only as effective as possible, but that
carefully navigate the rocky shoals of these court decisions.
I am going to share with you the four features of an
approach that I believe would be not only an effective one, but
one that would avoid altogether the constitutional risks that
attach to other possible Federal responses that have been
raised.
First, I would propose creating a meaningful partnership
between the Federal Government and the States in combating hate
crime by establishing within the Justice Department a fund to
assist State and local authorities in investigating and
prosecuting such crimes. Much of the cited justification given
by those who advocate broad Federal jurisdiction over hate
crimes is a lack of adequate resources at the State and local
levels. Perhaps, then, before we take the step of making every
criminal offense motivated by hatred a Federal offense, we
ought to equip the States and localities with the resources
necessary so that they can undertake these criminal
investigations and prosecutions on their own.
Second, we need to undertake a comprehensive analysis of
the raw data that has been collected pursuant to the 1990 Hate
Crimes Statistics Act, including a comparison of the records of
different jurisdictions, some with hate crime laws, others
without, to determine whether there is, in fact, a problem in
certain States' prosecution of those criminal acts constituting
hate crimes. That is a very important issue to me. Are the
States doing the job? Will they do the job? Do they have the
ability to do the job, even if they are willing to?
Third, my approach would direct an appropriate neutral
forum to develop a model hate crimes statute that would enable
States to evaluate their own laws and adopt, in whole or in
part, the model statute hate crime legislation at the State
level.
And, fourth, I would make a long overdue modification of
our existing Federal hate crime law passed in 1969 to allow for
the prosecution by Federal authorities of those hate crimes
that are classically within Federal jurisdiction; that is, hate
crimes in which State lines have been crossed.
Since I know that Deputy Attorney General Eric Holder
believes that States and localities should continue to be
responsible for prosecuting the overwhelming majority of hate
crimes and that no legislation is worthwhile if it is
invalidated as unconstitutional, I shall be interested in
hearing his thoughts on this approach that I have just
outlined.
But, first, let me take note for the record that my
colleague from Oregon, Senator Ron Wyden, has submitted written
testimony for this hearing and we will place that in an
appropriate place in the hearing record.
[The prepared statement of Senator Wyden follows:]
Prepared Statement of Hon. Ron Wyden, a U.S. Senator From the State of
Oregon
I appreciate the opportunity to submit testimony for the
Committee's hearing on hate crimes prevention, and wish to commend
Chairman Hatch and the Committee for your advocacy on behalf of civil
rights. No matter how hard we work in this area, however, there is
always more to be done. This is especially true for crimes motivated by
hate.
Hate crimes are a stain on our national greatness * * * Whether it
was the brutal death of James Byrd, Jr. last July in Texas, or the way
Matthew Shepard was left strung up on a fence post in Wyoming.
The bipartisan Hate Crimes Prevention Act, of which I am a
principal cosponsor, seeks to deter violent crime motivated by bigotry.
The bill will close the loopholes in existing Federal hate crimes law
and remove the straightjacket from local law enforcement so they can
get Federal assistance when they need it. The purpose is to assure
prosecution of a hate crime regardless of where it occurred--be it on a
public sidewalk or in a private parking lot across the street.
The legislation is carefully aimed at filling in the gaps in the
low. It will make sure law enforcement has an extensive array of tools
to prosecute these crimes to the fullest extent.
The legislation will not generate a tsunami of Federal hate crimes
cases. Local law enforcement would have to seek Federal involvement,
and the Attorney General would have to approve that involvement. Since
1990, Federal indictments under current law have averaged 10 a year,
and the number of prosecutions has averaged about 6 a year, out of the
thousands of hate crimes reported each year. The Justice Department
testified last year that it expects only a ``modest increase in the
number of cases'' under our bill.
Our nation has made great strides in civil rights, but there is
still a long way to go. We need to put bigots on notice that hate
crimes will not be tolerated in America. That's the message of our
legislation, and I hope we can send it in a bipartisan way to the
American people.
The Chairman. Now, we will turn to my friend and colleague,
Senator Kennedy, for his opening statement.
Senator Kennedy. Thank you, Mr. Chairman. Thank you for
having this hearing. I have a statement here from Senator
Smith, as well, and ask consent that it be put in the record.
The Chairman. We will put that in the record as well.
[The prepared statement of Senator Smith follows:]
Prepared Statement of Hon. Gordon Smith, a U.S. Senator from the State
of Oregon
Today we meet to address a serious problem in America. This problem
is not a new one, nor is it unique to the United States. It is the
incidence of vicious attacks on individuals motivated by a difference
in race, color, religion, ethnicity, gender, disability or sexual
orientation. In my role as Chairman of the Foreign Affairs'
Subcommittee on European Affairs, I speak out against human rights
violations and hate throughout the world; it would be hypocritical of
me not to take action within our own border.
I do not stand here with my colleagues today to single out one
crime as worse than another. However, there is an undeniable pattern
here in the United States--certain groups have historically been
singled out as targets of violent crime. In recent years, the United
States has made tremendous strides toward equality and civil rights.
But there remains much to be done. Hate crimes have a deep impact on
our communities. They enrage, they divide.
Federal laws are already in place to protect victims of crimes
based on race, color, religion or national origin; however, federal
prosecution has been limited to crimes committed within federal
jurisdiction. This legislation would simply remove these restrictions
and extend the authority of federal prosecution to crimes based on
gender, sexual orientation, and disability. We are making current
federal law not only more enforceable but are ensuring that this law
includes the groups that are victimized by this hate.
The Hate Crimes Prevention Act of 1999 does not interfere with
states' rights; rather, it allows federal prosecutors to assist states
that do not have the resources to prosecute a case expediently and
justly. The act will promote cooperation between the federal government
and state governments by removing current federal hurdles and by
creating uniformity. Federal prosecutions would be used in only a small
number of carefully selected cases.
This act is not about granting special rights. It is about
recognizing patterns of hate and ensuring that preexisting federal law
is up-to-date and enforceable.
In cosponsoring this legislation, I wanted to add my voice to the
growing chorus in this country that violence motivated by prejudice is
not acceptable.
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
STATE OF MASSACHUSETTS
Senator Kennedy. Thank you for having these hearings. This
is our second hearing on the issue of hate crimes, and we are
very hopeful that we will be able to move this legislation
forward after we hear from really some excellent witnesses here
today.
We commend you for calling this hearing on hate crimes.
These vicious crimes continue to shock the conscience of the
Nation, and I welcome all the witnesses who are here today. I
join you in especially commending Judy Shepard, the mother of
Matthew Shepard, for agreeing to appear before the committee.
We express our deepest condolences to Ms. Shepard and her
family, and words cannot begin to describe the pain of losing a
loved one to such a vicious crime. I mentioned to her before
the hearing the best way that we can thank her for her presence
and testimony today is to pass this legislation.
Clearly, Congress needs to do more to address the issue of
hate crimes. We need to give the Federal Government more
effective tools to investigate and prosecute these contemptible
acts. Last month, it was my privilege to join Senator Specter,
Senator Leahy, Senator Wyden, Senator Smith and Senator Schumer
in introducing S. 622, the Hate Crimes Prevention Act of 1999.
This bill has the support of the Department of Justice,
constitutional scholars, law enforcement officials, and many
organizations with a long and distinguished history of
involvement in combating hate crimes.
Tragically, the silence of Congress on this basic issue has
been deafening, and it is unacceptable. We must stop acting
like we don't care, that somehow this fundamental issue is just
a State and local problem. It isn't. It is a national problem,
and for too long Congress has been AWOL.
Few crimes tear more deeply at the fabric of our society
than hate crimes. These despicable acts injure the victim, the
community and the Nation itself. The brutal murders in Texas,
Wyoming, and most recently in Alabama have shocked us all. But,
sadly, these three crimes are only the tip of the hate crime
iceberg. We need to do more, much more, to combat them.
I am convinced that if Congress today and President Clinton
signed our bill tomorrow, we would have fewer hate crimes in
all the days that follow. Current Federal laws are clearly
inadequate. It is an embarrassment that we haven't already
acted to close the glaring gaps in present law. For too long,
the Federal Government has been forced to fight hate crimes
with one hand tied behind its back.
Our bill does not undermine the role of the State in
investigating and prosecuting hate crimes. States will continue
to take the lead, but the full power of Federal law should also
be available to investigate, prosecute and punish these crimes.
The Hate Crimes Prevention Act of 1999 addresses two
serious deficiencies in the principal Federal hate crime
statute, 18 U.S.C. 245, which applies to hate crimes committed
on the basis of race, color, religion, or national origin.
First, current law requires the Federal law to prove that
the defendant committed the offense not only because of the
victim's race, color, religion or national origin, but also
because of the victim's participation in one of six narrowly
defined federally protected activities enumerated in the
statute, such as traveling in interstate commerce, serving as a
juror, or attending a public school or college.
Second, the statute provides no coverage for hate crimes
based on a victim's sexual orientation, gender, or disability.
Together, these limitations prevent the Federal Government from
working with State and local enforcement agencies in
investigating and prosecuting many of the most vicious hate
crimes.
Our legislation addresses each of these limitations. In
cases involving race, religion, or ethnic violence, the bill
prohibits the intentional infliction of bodily injury without
regard to the victim's participation in one of the federally
protected activities. In cases involving hate crimes based on a
victim's sexual orientation, gender, or disability, the bill
prohibits the intentional infliction of bodily injury whenever
the act has any connection to interstate commerce. These
provisions will permit the Federal Government to work in
partnership with State and local officials in the investigation
and prosecution of hate crimes.
The Hate Crimes Prevention Act is a needed response to a
critical problem facing the Nation. It will make the Federal
Government a full partner in the battle against hate crimes. In
recognition of State and local efforts, the Act also provides
grants to States and local governments to combat hate crimes,
including programs to train local enforcement officers in
investigating, prosecuting and preventing hate crimes.
I urge the Senate to act quickly on this important
legislation, and I look forward to working with my colleagues
to bring it to a vote.
The Chairman. Well, thank you, Senator Kennedy.
Mr. Holder, again, I apologize for being late. I just
couldn't be in two places at the same time, and I had to start
that bill. So we will turn to you and we look forward to your
testimony.
STATEMENT OF ERIC H. HOLDER, JR., DEPUTY ATTORNEY GENERAL, U.S.
DEPARTMENT OF JUSTICE, WASHINGTON, DC
Mr. Holder. Thank you very much, Mr. Chairman. Mr.
Chairman, Senator Kennedy, other members of the committee,
thank you for the opportunity to testify today on the important
and troubling issue of hate crimes.
The administration very much appreciates your decision to
hold this hearing. President Clinton and the Attorney General
have remained deeply committed to preventing and to prosecuting
hate crimes since the 1997 White House Conference on Hate
Crimes. We continue to dedicate significant time and resources
to this issue.
The battle against hate crimes has always been bipartisan,
and this committee has always been in the forefront of that
battle. In 1990 and in 1994, the committee strongly supported
the enactment of the Hate Crimes Statistics Act and the Hate
Crimes Sentencing Enhancement Act. In 1996, the committee
responded in a time of great national need by quickly endorsing
the Church Arson Prevention Act.
I am hopeful that you will respond once again to the call
for a stronger Federal stand against hate crimes, and that you
will join law enforcement officials and community leaders from
across the country in support of S. 622, the Hate Crimes
Prevention Act of 1999. The bill enjoys bipartisan support in
both the House and in the Senate. If enacted, this legislation
will continue the tradition of forceful congressional action to
eradicate hate crimes.
Unfortunately, recent events have only reemphasized the
devastation that hate crimes can bring to a community. We as a
Nation are stunned and horrified at the hatred and brutality of
crimes such as the murders of Billy Jack Gaither in Alabama,
Matthew Shepard in Wyoming, and James Byrd in Texas. These
incidents and other hate crimes like them are not just a law
enforcement problem; they are a problem for the entire
community, for our schools, for our religious institutions, for
our civic organizations, and for each one of us as individuals
and as Americans. And when we come together to respond to these
crimes, we build communities that are stronger, safer, and more
tolerant.
There are a number of goals that we must commit ourselves
to achieving in order to eradicate hate crimes wherever they
occur. First, we must gain a better understanding of the
problems. The data that we now have is simply inadequate. In
1977, the last year for which we have statistics, 11,211 law
enforcement agencies participated in the data collection
program and reported 8,049 hate crime incidents. Eight thousand
forty-nine hate crime incidents represents almost one hate
crime incident per hour. But we know that even this disturbing
number significantly underestimates the true level of hate
crimes. Many victims do not report these crimes. Police
departments do not always recognize or adequately report hate
crimes.
Second, we must learn to teach tolerance and understanding
in our communities so that we can prevent hate crimes by
addressing bias before it manifests itself in violent criminal
activity. We must foster understanding, and should instill in
our children the respect for each other's differences and the
ability to resolve conflicts without violence.
The Department of Education, with the National Association
of Attorneys General, recently published a guide to addressing
and stopping hate and bias in our schools. I am also very
pleased that the Department of Justice will be assisting a new
partnership announced last month by the President in its
efforts to develop a program for middle school students on
tolerance and on diversity.
Third, we must work together. The centerpiece of the
administration's hate crimes initiative is the formation of
local working groups in U.S. attorneys' districts around the
country. These task forces are hard at work bringing together
the FBI, the U.S. Attorney's Office, the community relations
service, local law enforcement, community leaders and educators
to coordinate our response to hate crimes.
The groups are assessing the hate crime problem in their
local areas and developing specific strategies, including
training, to respond to the problem. Such cooperative efforts
have recently been reinforced by the July 1998 memorandum of
understanding between the National District Attorneys
Association and the Department of Justice.
Where the Federal Government does have jurisdiction, the
MOU requires early communication among local, State and Federal
prosecutors to explore the most effective way to investigate
these cases and to utilize the best investigative resources or
combination of resources available.
Finally, we should never forget that law enforcement has an
indispensable role to play in eradicating hate crimes. We must
ensure that potential hate crimes are investigated thoroughly,
that they are prosecuted swiftly, and that they are punished
soundly. Current Federal law, however, is simply inadequate.
The principal Federal hate crimes statute, 18 U.S.C. 245,
prohibits certain hate crimes committed on the basis of race,
color, religion, or national origin. The current Federal hate
crimes law has two serious defects.
First, in even the most blatant cases of racial, ethnic, or
religious violence, no Federal jurisdiction exists unless the
violence was committed because the victim engaged in one of six
federally protected activities. This unnecessary extra intent
requirement has led to acquittals in several cases and has
limited the ability of Federal law enforcement officials to
work with State and local officials in the investigation and
prosecution of many incidents of brutal, hate-motivated
violence.
The Hate Crimes Prevention Act of 1999 would amend 18
U.S.C. 245 so that in cases involving race, religious, or
ethnic violence, the Federal Government would have jurisdiction
to prosecute in cases involving the intentional infliction of
bodily injury without regard to the victim's participation in
one of six specifically enumerated federally protected
activities. This is, I believe, an essential fix.
In my written testimony, I highlight several cases that we
have lost because of the federally protected activity, and the
murder of James Byrd is an important example in this regard.
The collaboration between local, State and Federal
investigators was essential in that case. The FBI aided a
relatively small jurisdiction in Texas with forensic and
laboratory expertise, while the U.S. attorney's office assisted
in the trial and death penalty phase regarding one of the
defendants. We can offer much to these localities, but in most
circumstances only if we have jurisdiction in the first
instance. The level of collaboration in Jasper was possible
only because we had a colorable claim of Federal jurisdiction
in that matter.
The second jurisdictional limitation of section 245 is that
it provides no coverage whatsoever for violent hate crimes
committed because of bias based on the victim's sexual
orientation, gender, or disability. Violent hate crimes
committed because of the victim's sexual orientation,
disability or gender pose a serious problem for our Nation.
From statistics gathered by the Federal Government and by
private organizations as well, we know that a significant
number of hate crimes based on the sexual orientation of the
victim are committed every year in this country. Despite the
prevalence of violent hate crimes committed on the basis of
sexual orientation, such crimes are not covered by 18 U.S.C.
245 unless there is an independent basis for Federal
jurisdiction.
We also know that a significant number of women are exposed
to brutality and even death because of their gender. And
Congress, through the enactment of the Violence Against Women
Act in 1994, has recognized that some violent assaults
committed against women are bias crimes rather than mere random
attacks.
Finally, Congress has shown a sustained commitment over the
past decade to the protection of persons with disabilities from
discrimination based on their disabilities. Indeed, concerned
about the problem of disability-based hate crimes, Congress
also amended the Hate Crimes Statistics Act in 1994 to require
the FBI to collect information about such hate-based incidents
from State and local law enforcement agencies. The information
we have available indicates that a significant number of hate
crimes committed because of the victim's disability are not
resolved satisfactorily at the State and local level.
In cases involving violent hate crimes based on the
victim's sexual orientation, gender, or disability, the Hate
Crimes Prevention Act of 1999 would prohibit the intentional
infliction of bodily injury whenever the incident involved or
affected interstate commerce.
State and local officials are on the front lines and do an
enormous job in investigating and prosecuting hate crimes that
occur in their communities. In fact, most hate crimes are
investigated and prosecuted at the State level. But we want to
make sure that Federal jurisdiction to prosecute hate crimes
covers everything that it should so that the Federal Government
can share its law enforcement resources, forensic expertise and
civil rights experience with State and local officials. It is
by working together cooperatively that State and Federal law
enforcement officials stand the best chance of bringing the
perpetrators of hate crimes swiftly to justice.
We must continue to examine the root causes of hate crime.
To move forward as one community, we must work against the
stereotypes and prejudices that spawn these actions. Our long-
term goal must be to prevent hate crimes by addressing bias
before it manifests itself in violent criminal activity. In the
meantime, however, it is imperative that we have the law
enforcement tools necessary to ensure that when hate crimes do
occur, the perpetrators are identified and swiftly brought to
justice.
S. 622 would provide this essential tool. The enactment of
this statute would significantly increase the ability of State
and Federal law enforcement agencies to work together to solve
and to prevent a wide range of violent hate crimes committed
because of bias based on the race, color, national origin,
religion, sexual orientation, gender, or disability of the
victim. This bill is, I believe, a thoughtful, measured
response to a critical problem facing our Nation.
I look forward to answering any questions that any of you
might have. Thank you very much.
The Chairman. Thank you. We appreciate your testimony here
today, and we are concerned, naturally, about what best to do.
In your written testimony, you acknowledge that the data we
now have under the Hate Crimes Statistics Act are,
``inadequate.'' It is precisely for this reason that I believe
that a thorough analysis of additional data, as well as
existing data under that Act must be conducted prior to taking
the dramatic step of enacting an expansive new Federal law
that, under the letter of S. 622, could be used to displace
State and local prosecutions of virtually all hate crimes.
Why wouldn't this course of action, together with the other
proposals I discussed regarding Federal funding to State and
local authorities and development of a model hate crimes
statute--why wouldn't that be wiser than adopting a new law
based upon what you call inadequate data?
Mr. Holder. Mr. Chairman, I think that the proposal that
you have made is a very good starting point. I think that 622
goes a little farther, but not inappropriately farther. The
purpose of 622 is to try to give us the ability to help State
and local authorities in the fight against hate crimes. It is
not our intention to displace them. They would still have the
primary responsibility in that regard in much the same way that
State and local authorities now prosecute gun and drug cases
that could be brought into Federal court as well. It is not the
intention of 622 or the administration to displace State and
local authorities in that regard.
The Chairman. Well, having said that, I would like to
clarify your thinking on when Federal involvement in matters
that are traditionally reserved to the States really is
warranted, especially in this area, because you have said at
various points in your testimony that local law enforcement
does, and should continue to have the primary role in
prosecuting hate crimes.
Now, those statements would not seem to support enactment
of a broad, new Federal hate crime law, since far beyond the
conceding the adequacy of State and local authorities, you have
praised such authorities as doing, ``an enormous job in
investigating and prosecuting,'' hate crimes. So, clarify that
for me. When is Federal involvement warranted in these matters
that you agree traditionally should be reserved to the States?
Mr. Holder. Well, I think Federal involvement is always
good in instances where we can help, but I think we would look
to find those instances--and it has to be done on a case-by-
case basis--where a State or locality would be unable or
unwilling to prosecute a case. There are various instances
where localities simply do not have the technical expertise,
and we would be able to help in that regard.
There are instances, unfortunately--not very many--where
local jurisdictions, for whatever reason, are unwilling to
proceed in cases that we think should be prosecuted. And in
those rare instances, we think a Federal role is appropriate.
The Chairman. Mr. Holder, you contend that the enactment of
S. 622 would result only in a, ``modest increase,'' if I got it
correctly, in the number of Federal prosecutions for hate
crimes, which recently has been only about 6 per year, as I
understand it----
Mr. Holder. That is about right.
The Chairman [continuing]. But would, ``significantly help
in our ability to assist local and State prosecutions.'' Now,
my concern is, isn't S. 622 awfully strong medicine for such
modest hopes? If all you are after is assistance to State and
local authorities, why not advocate a proposal that does
precisely that? Now, that is an important question to me
because I am looking at these things as broadly as I can, too,
and I want to do what is right in this area.
Mr. Holder. We not only want to assist, where that is
appropriate, and 622 will help us in that regard. We also want
to have the ability to prosecute ourselves in those instances
where we think there is a basis for Federal involvement, where,
as I said before, there is a locality, a State that is unable
or unwilling to proceed. Without 622, the Federal Government
would not have the ability to enter into those kinds of cases.
The Chairman. But can you tell me any specific instances in
which State law enforcement authorities have deliberately
failed to enforce the law against the perpetrator of a crime? I
understand that some States do not have hate crime statutes
that cover sexual orientation or gender handicap, et cetera,
but those States still do, do they not, outlaw the underlying
crime? As I understand it, murder and assault are criminalized
in every State in the country today.
So the question is can you give me specific instances where
the States have failed in their duty? And if they are not
failing in their duty, why shouldn't we try to do this in a way
that accentuates and augments their ability to do a better job?
Mr. Holder. First, I want to emphasize that the vast
majority of cases that should be brought are brought by State
and local authorities. There are, however, rare instances where
that has not occurred. I do not have the ability right now to
give any of those cases to you, but I will be more than glad to
respond in writing to that question and to outline for you----
The Chairman. I would like to really put that one to bed,
and I think you are in the best position--you and the Attorney
General are in the best position to do that because if the
States are doing the job, then what is the need for really
broad Federal legislation that basically may not be necessary
under the circumstances?
So if you will provide that to the committee, I would like
to get that sooner rather than later because that is one of the
key questions here and one of the key problems that we have to
resolve. It is one thing for all of us to decry hate crimes,
regardless of what they are. It is another thing to expand
Federal jurisdictions in areas where really we don't need to do
so, and probably shouldn't do so.
Authorities in Jasper, TX, secured a death penalty against
one of the defendants without using hate crime legislation,
while no death penalty is even provided for in S. 622. Isn't it
altogether possible, then, that a jurisdiction that does not
have a hate crime law might, in actuality, prosecute the same
criminal acts more harshly than under a State or Federal hate
crimes statute? And if so, how does the prosecution under the
hate crimes statute provide a greater deterrent against hate-
based criminal conduct?
Mr. Holder. Well, again, a determination has to be made on
a case-by-case basis. And looking at a particular case, a State
penalty might be more appropriate than the Federal penalty that
is provided in S. 622. We would look at the fact situations
that were presented to us and then determine, in conjunction
with our State and local counterparts, where the case could be
best brought. We have signed a memorandum of understanding with
the National District Attorneys Association to do exactly that
kind of thing.
The Chairman. Would the Department of Justice want to make
a determination on every case that comes up as to what to do if
you had this bill?
Mr. Holder. No, certainly not. I don't think that every
case involving hate crimes will be brought to our attention. We
would like the ability, however, to use the Federal resources
that we have, the expertise that we have developed, the
expertise we have in our Civil Rights Division and in our
Federal Bureau of Investigation, to bring those to bear in
those cases where Federal involvement is appropriate.
The Chairman. Now, let me ask you about the inclusion of
gender in S. 622. Rapists are very seldom indifferent to the
gender of their victims. So would you say that all rapists
would be covered under S. 622's requirement that the
perpetrator of a crime act, ``because of,'' the victim's
gender?
Mr. Holder. Not all rape cases would be brought in Federal
court. Not all assaults on women would be brought in Federal
court. Again, we would have to look at the specific facts of a
case, see what the State-local response was going to be in that
case, and then decide in a very limited number of cases where
the Federal Government should take an active prosecutorial
role.
Again, if the statute is passed, we would be able to help
our State and local counterparts in a technical way with
regard, again, to the expertise that we have in the Federal
Government.
The Chairman. Well, despite your claim that the Department
of Justice guidelines would limit your prosecution of these
cases, is it not true that the statutory language of S. 622
would enable Federal prosecutors to prosecute any rape in
which, say, a phone call had first been made by the perpetrator
to the victim? Thus, it would meet the instrumentality of the
interstate commerce requirement.
Mr. Holder. I don't know. I would have to look at that. I
mean, there is the interstate commerce connection and that is a
very serious thing that has to be proven by the Government
beyond a reasonable doubt in connection with gender-based hate
crimes. It is possible that if a phone call were made that that
might satisfy that element.
That does not mean, however, that there would be the
wholesale bringing of rape cases into the Federal system.
Again, we will have guidelines within the Justice Department to
make sure that we only become involved in those cases where it
is appropriate, always looking again to our State and local
counterparts to be the primary actors in this regard.
And I would emphasize again that if you look at the way in
which our gun laws are constructed, the way our drug laws are
constructed, these are cases that could be almost all brought
into Federal court. And yet they are not because we exercise
discretion in a responsible way and work with our State and
local counterparts, and I think that in this regard we would do
something very similar.
The Chairman. Well, thank you. We are holding this hearing
in response to my promise last year to hold at least a hearing
on hate crimes. But we may need to hold more than this hearing
because there are some groups that have felt like they were
excluded. Of course, naturally, we only have so much time. We
have tried to make sure that people of varying viewpoints have
a right to testify. But I appreciate you being here today and
your testimony.
We will turn to Senator Kennedy.
Senator Kennedy. Thank you very much, Mr. Chairman. What we
are really talking about are these types of crimes that are so
horrific in terms of their nature, they are really not just
directed at an individual, but are really directed at a whole
community and really the society. I mean, in the case of, as I
understand it, the rape, you have obviously got to have the
connection in terms of interstate commerce. You have got to
have the nexus, but then you have to be able to show the gender
animus that is out there.
So this doesn't apply to every rape case. You have got to
be able to demonstrate that this is a mind set individuals are
going to have on the basis of race or in terms of sexual
orientation, or in terms of whatever these criteria are. This
was described in an earlier comment today as sort of a modern
lynching of a fellow American citizen. I mean, that is the kind
of thing that we are talking about, aren't we?
I think the kinds of cases that all come to mind bring that
mind set, and it isn't just something that is in a particular
location; it is something that scars the Nation. I mean, that
is what we are talking about here, it seems to me, and we are
setting the criteria by which the Justice Department then will
make the judgment in these circumstances that it meets these
particular requirements, and in those limited cases is going to
demonstrate that it is going to be involved, working with the
local community and the State, not superseding them, but it is
going to be working with them.
It seems to me that to try to suggest that this is going to
just sort of open up--as former Attorney General Ed Meese sort
of suggested, look, we have got too many crimes that are up in
the Federal jurisdiction; we don't need more. We have got to
understand what we are talking about with these circumstances.
This goes to the core of our society and what the country is
about and whether we are going to take action, whether we are
going to permit this. People know what is going on here.
We want to work with our other colleagues here, but this
isn't just another issue about jurisdiction on land takings. We
are talking about something that reaches the core of our whole
society and our values as a society, and constitutionally
protected rights in our society as well. I mean, that is what
we are talking about, whether we are going to have the full
force of our national Government protecting these
constitutional rights of our fellow citizens, it seems to me.
But I gather, General, that you don't believe that the
number of cases that will be brought will in any way really
burden the Federal court system. I mean, as I understand it,
the kinds of cases that would be brought would certainly be
appropriate that they be brought.
I can remember the testimony we had last year from Lubbock
TX, from the district attorney, about three white men and three
blacks, and the whites assaulting the blacks and the local
district attorney saying this would take nine trials in
Lubbock, TX, while the Federal Government could do it all in
one and get to the core of what was being really addressed out
there.
So I think it is enormously useful for the Justice
Department to provide those kinds of cases. Obviously, you
won't be able to go back over them and talk to the local people
probably about them, but give us those kinds of illustrations.
But I gather from what your testimony is, you don't believe
that this is an undue burden, or would be, in terms of our
Federal judicial system.
Mr. Holder. I don't believe so, Senator. The restrictions
that are placed in the statute, I think, are appropriate ones.
To prove an interstate commerce connection beyond a reasonable
doubt is not always a very easy thing to do. I was a Federal
prosecutor of public corruption cases, and the Federal
extortion statute requires us to prove an interstate commerce
connection and that is oftentimes a very difficult thing to
prove. There are other checks within the statute--the gender
animus that you mentioned with regard to gender-based crimes.
All of these things, I think, in addition to the sound
exercise of discretion that we will use in the Justice
Department, would minimize the impact on the Federal system. We
have also asked for additional resources, not a huge number of
prosecutors and agents, but additional resources in order to
handle what I think would be a modest increase in the number of
cases that we would have to handle.
I would also like to echo one thing that you said, Senator,
and that is that we have to view these cases in, it seems to
me, the truest context. Matthew Shepard was clearly the victim
of a brutal killing. The gay and lesbian community were also
victims in that, but we as Americans were diminished by that
very act. Our Nation was diminished by that act, and that is
why I think a Federal response in these kinds of matters is
wholly appropriate.
Senator Kennedy. Well, I couldn't agree with you more. I
firmly believe that this is, as we will hear later from our
district attorney from New York, basically a law enforcement
issue. This is a criminal issue and it is a constitutional
issue, as well as a civil rights issue, and it is one that this
country ought to be about.
We always hear around here these marvelous lectures, well,
let's just pass another bill; that will really stop everything.
And this, we know, will send the message out there that the
full resources and commitment in terms of the protection of
these constitutional rights and liberties are going to be
protected. That is, I think, a core responsibility of the
Federal Government; that is a core responsibility. And to deny
them, I think we fail our responsibility in this way.
So I would like to submit some questions, too, Mr.
Chairman.
The Chairman. Thank you, Senator Kennedy.
Senator Kennedy. I thank the General for being up here and
for his strong and effective support. Thank you very much, Mr.
Holder.
Mr. Holder. Thank you, Senator.
The Chairman. Now, Senator Kennedy raises some important
points, and I am very concerned about this. I want to do what
is right in this area. I have been led to believe by many in
the State and local law enforcement community that they don't
need a major new Federal law.
On the other hand, if there is evidence that they are not
doing their job or that they are not enforcing the laws that
currently exist--see, I happen to think that most people
believe that every rape case involves an antigender bias, or
mind set, to use Senator Kennedy's words. And that will be
argued in every rape case if S. 622 passes.
It may be that 622 is what needs to be done, but the fact
of the matter is your providing this information is absolutely
critical to me because I don't want any hate crimes to exist in
our society, but I also don't want to overdo the law if hate
crimes can and are being handled effectively and in good ways
by the State and local people, and the Federal Government where
it does have laws currently on the books.
I want to thank you for being here. We always appreciate
you coming up here and testifying to us, and we will submit
additional questions and we will keep the record open for
additional questions.
We will turn to Senator Specter and then we will move on to
the next panel.
Senator Specter. Thank you very much, Mr. Chairman.
We were just conferring. I had gotten a note from Senator
Hatch that he had other commitments and asked me to join to
pick up on the chairman's----
The Chairman. I am going to leave in just a few minutes,
but I would like to introduce the second panel and at least
stay for a couple of the witnesses, if I can. But it is my bill
on the floor, so I pretty well have to get back there.
Senator Specter. Well, the schedules here, as you know, Mr.
Holder, have us in a lot of directions. I have just come from a
Defense appropriations subcommittee with Secretary of Defense
Cohen and General Shelton trying to figure out how much money
to give on the conference on appropriations this afternoon. So
there are many, many items which occupy our attention.
I, of course, have missed the testimony so far, and I hope
I am not covering old ground, but on the hate crime legislation
which I have cosponsored, it seems to me that it is important
to have the backdrop of Federal jurisdiction where it is not
limited to show the deprivation of a civil right, which is a
highly technical matter which could impede the Federal
Government coming in.
And I strongly believe that prosecutions ought to be
maintained at the local level, and I have maintained that since
my days as district attorney of Philadelphia when I strongly
resisted either the State attorney general or the U.S.
Department of Justice coming into a field where there was
jurisdiction by the local prosecutor.
But when we deal with these hate crimes, we find that they
are really hot potatoes, and in many cases the local
prosecutors are unwilling to handle them because they involve
very highly sensitive issues where there is very strong
community feeling against people based on racial grounds, based
on sexual orientation, based on other grounds which ought not
to be considered where you have a criminal prosecution.
And my question to you would be to what extent the
Department of Justice experience which you have seen shows that
the local prosecutors do shy away from these very sensitive,
hot potato kinds of cases, and that it is an unusual area where
you need to have the backdrop of Federal prosecution, which may
come not from the local community where these pressures are so
intensely felt.
Mr. Holder. I actually think it is fairly rare where we
have hate crimes where local prosecutors, for inappropriate
reasons, decide not to pursue them. I think we see more
instances where there is an inability to prosecute in an
effective way these kinds of cases, which is not to say,
however, as you indicated, that there are sometimes cases,
unfortunately, that for a variety of reasons that I would
consider inappropriate----
Senator Specter. Why an inability, Mr. Holder?
Mr. Holder. Well, sometimes not the technical expertise. I
mean, if we look, for instance, at what happened in Jasper, and
if you talk to the DA down there or the police down there, they
will indicate to you that the help of the Federal Bureau of
Investigation in doing forensic kinds of things was critical in
making that case successful. The ability that we shared with
them in the sentencing phase was also, I think they would say,
of great assistance to them. There are technical things, there
are other resources that we can bring to help State and local
prosecutors, who will be the primary actors even after 622 was
passed.
Senator Specter. To what extent do you find racial animus a
limiting factor for local prosecutions in some areas in the
country? It is a sad thing that 45 years after Brown v. Board
of Education that the racism is still with us, but I don't
think there is any denying it. And we see it in so many
activities. We see it in election campaigns, we see it in all
levels in our society. We see it in personal relationships, and
I think we see it in criminal prosecutions as well. We have
these specific incidents of African-Americans being targeted.
To what extent is that a factor that limits local prosecutions,
in your opinion?
Mr. Holder. I think the vast majority of State and local
DA's do the right thing, but the passage of this statute will
allow us, the Federal Government, to serve as a backdrop in
those instances that I think are fairly rare, but in those
instances where, for whatever reason, a State or local
prosecutor does not do the right thing, does not prosecute a
case where a hate crime is based on race.
We now have an inability to get involved in those instances
because we have those federally protected activities that we
have to meet. Were those gone, I think we would feel--our
Nation would feel fairly confident that at some level, all
those kinds of cases would be prosecuted either by State and
locals or by the Federal Government. We are prevented at this
point from intervening in many of these cases where our
intervention would be appropriate.
Senator Specter. There has been a special upsurge in
violence against individuals because of sexual orientation,
really sort of shocking as to what has occurred. To what extent
is that a factor? Has that overtaken race as the biggest
problem on the so-called hate crimes agenda?
Mr. Holder. I am not sure what our statistics show.
Senator, I would be more than glad to share information with
you. I am sure we have something back in the Department. But I
think that the problem of hate crimes based on sexual
orientation is one that I think has always been with us, one
that I think we have given increasing attention to in recent
years, and one that frankly disturbs me a great deal.
Senator Specter. You think it has always been with us? I
think it is a lot more intense now, perhaps because there is
more of a willingness of people who have differing views to
step forward. But the intensity of those crimes has stepped up
enormously since my days as district attorney in Philadelphia.
It was really unheard of, and now it is regrettably very, very
frequent.
Mr. Holder. I think it has become more frequent, but I am
not at all certain that it is something that was, in the past
when we did not have the gay rights movement, where people were
reluctant to come forward and to report these incidents for a
variety of reasons--I mean, I think that is certainly one of
the positive aspects of the gay rights movement, people
unafraid to say that I was attacked because I was a gay man, I
was a gay woman.
I think that is at least one of the reasons why I believe
there has always been that kind of violence and why we now see
it more widely reported, though I will agree with you that in a
lot of ways the intensity of the attacks that we have seen in
recent years is different from what perhaps we have seen in the
past.
Senator Specter. How about other hate crimes? To what
extent do we find hate crimes against people because of
religious beliefs?
Mr. Holder. We still see that. You know, we see too often
instances of swastikas and things painted on the houses of
Jewish people. I see it on local television here in Washington
at least two, three times a year, it seems, things done to
schools. We as a Nation have made great progress, and yet some
people still engage in that conduct that the vast majority of
us find to be reprehensible. So I still think that is a problem
for us as a Nation.
Senator Specter. When I was a freshman at the University of
Oklahoma, member of Pi Lambda Phi, which was a Jewish
fraternity, there was a swastika painted on our sidewalk, a
sharp reminder. That was the day when Adelo Ascipial tried to
get into the University of Oklahoma Law School. They had a
separate law school in Oklahoma City and they decided they
couldn't afford it, so they brought her down to Norman, OK. But
they wouldn't put her in a classroom. She was African-American.
They wouldn't put her in a classroom with white students, so
they put her right outside the door so that she could look in
but wouldn't be in the room. And then when that didn't work
out, they put her inside the room and built a little playpen
around her so she would be isolated.
And one of my fraternity brothers, Howard Friedman, went
out to the mall at the University of Oklahoma and they burned
the Constitution, and had the postman there to send it to
President Truman--see, this was a long time ago--because the
Constitution didn't exist in Oklahoma. And then they took the
little playpen down and Adelo Ascipial went to school with
everybody else. So it took some time.
Well, I commend you, Mr. Deputy Attorney General, for your
work in this field and for the Department's strong support for
this legislation. As soon as we get Senator Hatch on board, we
will get it passed. [Laughter.]
Mr. Holder. Thank you, Senator.
The Chairman. Keep working on me.
I want to thank you for being here, Mr. Holder. We
appreciate you taking the time.
Mr. Holder. Thank you, Mr. Chairman.
[The prepared statement of Mr. Holder follows:]
Prepared Statement of Eric H. Holder, Jr.
Mr. Chairman, Members of the Committee, thank you for the
opportunity to testify today on the important and troubling issue of
hate crimes. The Administration very much appreciates your decision to
hold this hearing. President Clinton and the Attorney General have
remained deeply committed to prosecuting and preventing hate crimes
since the 1997 White House Conference on Hate Crimes. We continue to
dedicate significant time and resources to this issue. The battle
against hate crimes has always been bipartisan, and this Committee has
always been at the forefront of that battle. Members of this Committee
have long recognized that hate crimes have no place in a civilized
society, whether based on the race, religion, ethnicity, sexual
orientation, gender, or disability of the victims. In 1990 and 1994,
the Committee strongly supported the enactment of the Hate Crimes
Statistics Act and the Hate Crimes Sentencing Enhancement Act. In 1996,
the Committee responded in a time of great national need by quickly
endorsing the Church Arson Prevention Act. I am hopeful that you will
respond once again to the call for a stronger federal stand against
hate crimes, and that you will join law enforcement officials and
community leaders from across the country in support of S. 622, the
Hate Crimes Prevention Act of 1999. The bill enjoys bipartisan support
in both the House and the Senate. If enacted, this legislation will
continue the tradition of forceful Congressional action to eradicate
hate crimes.
Unfortunately, recent events have only reemphasized the devastation
that hate crimes can bring to a community. This past February, in
Sylacauga, Alabama, the body of 39-year-old Billy Jack Gaither was
found bludgeoned with an ax handle and charred on a pile of burned
tires; killed, as one paper described it, ``for being himself.'' Last
October, in Laramie, Wyoming, Matthew Shepard, an openly gay young man,
was found badly beaten and tied to a fence. He died five days later
from 18 blows to the head. The state charged two men with the murder;
one defendant has pled guilty to the murder, and the second awaits
trail on first-degree murder charges. And last June, the nation was
horrified by the dragging death of James Byrd, Jr., an African-American
man. We, as a nation, are stunned and horrified at the hatred and
brutality of these crimes.
Preventing hate crimes and eliminating bigotry and bitterness are
among our most important challenges. There is never an excuse for
violence against an innocent person. But these attacks, committed
because the victims look different, practice a different faith, or have
a different sexual orientation, threaten America's most cherished
ideals. They represent an attack not just on the individual victim, but
on the victim's community. And their impact is broader because they
send a message of hate. They are intended to create fear and
dissension.
These incidents and other hate crimes like them are not just a law
enforcement problem. They are a problem for the entire community: for
our schools, for our religious institutions, for our civic
organizations and for each one of us as an individual. And when we come
together to respond to these crimes, we help build communities that are
safer, stronger and more tolerant. All of us working together--at the
federal, state, local, and community levels--must redouble our efforts
to rid our society of hate crimes.
I. The Problem and Current Efforts
a. inadequate reporting
First, we must gain a better understanding of the problem. The data
we have now are inadequate. As a result of the Hate Crimes Statistics
Act, enacted in 1990, the FBI began collecting information from law
enforcement agencies around the country. In 1991, the first year that
the FBI reported its findings, 2,700 law enforcement agencies reported
4,560 hate crimes. In 1997, the last year for which we have statistics,
11,211 law enforcement agencies participated in the data collection
program and reported 8,049 hate crime incidents.
8,049 hate crime incidents represent almost one hate crime incident
per hour. But we know that even this disturbing number significantly
underestimates the true level of hate crimes. Many victims do not
report these crimes. Police departments do not always recognize hate
crimes. Many don't collect any hate crime data. And about 80 percent of
those that do, even some in large metropolitan areas, report few or no
hate crimes in their jurisdictions, even when most observers conclude a
larger problem exists.
b. training
There are many ways to improve our data collection. First and
foremost, increased hate crime training for law enforcement officials
is essential. Police officers must know how to identify the signs of a
hate crime. What might appear to some as a crime like so many others,
can turn out, upon investigation, to be motivated by bias.
Some of you may know that, about a year and a half ago, President
Clinton launched, at a first-ever White House Conference on Hate
Crimes, a multi-faceted Hate Crimes Initiative. The Department of
Justice is a integral part of this effort, which includes improving
data collection and enhancing law enforcement training. To meet these
goals, we recently commissioned a study by Northeastern University to
survey some 2,500 law enforcement agencies in order to better
understand and improve police reporting practices; and we brought
together state police academies, police chiefs, state attorneys general
and others around the country to develop uniform curricula for hate
crime training. As a result of these efforts, the Department now has
available three law enforcement training curricula on hate crimes--for
patrol officers, investigators, and a mixed audience. Since December
1998, more than 500 law enforcement officers have been trained with
Department of Justice curricula. We also work with communities in their
own training and outreach efforts. Next week, Bill Lann Lee, the Acting
Assistant Attorney General for Civil Rights, will attend a conference
in Ogden, Utah, entitled ``The Changing Faces of Hate.'' This
conference, sponsored by the Utah U.S. Attorney's Office, the Simon
Wiesenthal Center, Weber State University and the Utah Task Force for
Racial and Ethnic Fairness will explore the ways communities can come
together to eradicate these horrendous crimes and educate communities
about understanding and tolerance.
c. prosecutions: current law
Identification and reporting are, of course, not a complete answer.
We must also ensure that potential hate crimes are investigated
thoroughly, prosecuted swiftly and punished soundly. Our long term goal
must be to prevent hate crimes by addressing bias before it manifests
itself in violent criminal activity. In the meantime, however, it is
imperative that we have the law enforcement tools necessary to ensure
that, when hate crimes do occur, the perpetrators are identified and
swiftly brought to justice.
We know that we are most effective when we work together. The
centerpiece of the Administration's Hate Crime Initiative is the
formation of local working groups in United States Attorneys' districts
around the country. These task forces are hard at work bringing
together the FBI, the U.S. Attorney's office, the Community Relations
Service, local law enforcement, community leaders and educators to
coordinate our response to hate crimes. The groups are assessing the
hate crime problem in their local areas and developing specific
strategies to respond to the problem. While local law enforcement has
the primary role in responding to and pursuing these crimes federal law
enforcement can provide additional resources and can assist with
training. And by involving community organizations in these working
groups, we are enhancing our ability to prosecute these crimes. Quite
simply we are more effective when we enjoy the trust and support of the
community. Community support makes it easier to uncover information,
enlist witnesses to testify, and solve cases.
The principal federal hate crimes statute, 18 U.S.C. Sec. 245,
prohibits certain hate crimes committed on the basis of race, color,
religion, or national origin. It prohibits the use of force, or threat
of force, to injure, intimidate, or interfere with (or to attempt to
injure, intimidate, or interfere with) ``any person because of his
race, color, religion or national origin,'' and because of his
participation in any of six ``federally protected activities''
specifically enumerated in the statute. The six enumerated ``federally
protected activities,'' written into the law 30 years ago when Congress
first enacted the statute, are: (A) enrolling in or attending a public
school or public college, (B) participating in or enjoying a service,
program. facility or activity provided or administered by any state or
local government; (C) applying for or enjoying employment; (D) serving
in a state court as a grand or petit juror; (E) traveling in or using a
facility of interstate commerce; and (F) enjoying the goods or services
of certain places of public accommodation.
State and local officials are on the front lines and do an enormous
job in investigating and prosecuting hate crimes that occur in their
communities. In fact, most hate crimes are investigated and prosecuted
at the state level. But we want to make sure that federal jurisdiction
to prosecute hate crimes covers everything that it should. Concurrent
federal jurisdiction is needed to authorize the federal government to
share its law enforcement resources, forensic expertise, and civil
rights experience with state and local officials. And in rare
circumstances--where state or local officials are unable or unwilling
to bring appropriate criminal charges in state court, or where federal
law or procedure is significantly better suited to the vindication of
the federal interest--the United States must be able to bring federal
civil rights charges. In these special cases, the public is served
when, after consultation with state and local authorities, prosecutors
have a federal alternative as an option.
d. federalism
The most important benefit of concurrent state and federal criminal
jurisdiction is the ability of state and federal law enforcement
officials to work together as partners in the investigation and
prosecution of serious crimes. When federal jurisdiction does exist in
the limited hate crimes contexts authorized by 18 U.S.C. Sec. 245, the
federal government's resources, forensic expertise, and experience in
the identification and proof of hate-based motivation often provide an
invaluable investigative complement to the familiarity of local
investigators with the local community and its people. It is by working
together cooperatively that state and federal law enforcement officials
stand the best chance of bringing the perpetrators of hate crimes
swiftly to justice.
Such cooperative efforts have recently been reinforced by the July,
1998, Memorandum of Understanding (MOU) between the National District
Attorneys Association and the Department of Justice. This MOU was
signed by the Attorney General and William Murphy, President of the
NDAA, on behalf of district attorneys offices. The MOU is intended to
foster a more cooperative approach by local, state and federal
authorities in the investigation and prosecution of color of law and
hate crimes cases. It requires early communication among local, state
and federal prosecutors to explore the most effective way to
investigate these cases and to utilize the best investigative resources
or combination of resources available. There are many benefits to such
an approach: it encourages the use of coordinated or joint local, state
and federal investigations in those instances where coordinated or
joint investigation is in the best interest of justice; it decreases
time delay between local, state and federal authorities about these
important cases; and it increases public confidence in the criminal
justice system. It is this type of cooperative effort, endorsed by the
Department of Justice and the National District Attorneys Association,
that maximizes all of our law enforcement capabilities in these
important cases.
It is useful in this regard to consider the work of the National
Church Arson Task Force, which operates pursuant to jurisdiction
granted by 18 U.S.C. Sec. 247 and other federal criminal statutes that
have no limitations analogous to the ``federally protected activity''
requirement of 18 U.S.C. Sec. 245. Created almost three years ago to
address a rash of church fires across the country, the Task Force's
federal prosecutors and investigators from ATF and the FBI have
collaborated with state and local officials in the investigation of
each and every church arson that has occurred since January 1, 1995.
The results of these state-federal partnerships have been
extraordinary. Thirty-four percent of the joint state-federal church
arson investigations conducted during the life of the Task Force have
resulted in arrests of one or more suspects on state or federal
charges. The Task Force's 34 percent arrest rate is more than double
the normal 16 percent rate of arrest in all arson cases nationwide,
most of which are investigated by local officials without federal
assistance. More than 80 percent of the suspects arrested in joint
state-federal church arson investigations during the life of the Task
Force have been prosecuted in state court under state law. Because the
Department of Justice has not maintained statistics regarding the
outcomes of the joint state-federal hate crimes investigations in which
it has participated, we are unable to provide similarly stark
statistical information regarding arrest rates in hate crimes cases.
Nevertheless, we are confident that additional state-federal
partnerships would result in an increase in the number of hate crimes
solved by arrests and successful prosecutions analogous to that
achieved through joint state-federal investigations in the church arson
context. We certainly know, from example, that these joint efforts have
been extremely successfully.
We have a particularly effective example of these partnerships in
South Carolina, where a team of agents from federal, state, and local
law enforcement agencies worked hand-in-hand to bring to justice a
group of Ku Klux Klansmen responsible for a wave of crimes across the
north-eastern part of that state. Representatives from the Justice
Department and several state district attorneys offices met to chart
the course the investigation would take. These meetings were not
without issues of turf, but eventually the agents worked together to
compare the relative strength of the statutes involved, the available
resources, and the potential terms of imprisonment for state v. federal
prosecutions. In the end, they decided it made sense to use both
sources of jurisdiction. So they formed a joint federal-state task
force.
Both the federal and state governments devoted agents, prosecutors,
and supporting resources to the joint investigative team, which used
the nationwide subpoena power of a federal grand jury sitting in
Charleston, South Carolina. Federal agents from the FBI and ATF rode
together as partners with agents of the South Carolina State Law
Enforcement Division (SLED) and the fire departments from the counties
affected. Their investigation led to five Klansmen being charged with
two church arsons, the assault with intent to kill a black mentally
retarded man, arsons of several migrant camps, and various firearms
offenses. To date, these are the only convictions of members of an
organized white supremacist group arising out of the rash of church
fires. Those five Ku Klux Klansmen stand convicted on both state and
federal offenses and have been sentenced to serve real time prison
terms of between 15 and 21\1/2\ years.
Another example occurred in April, when the co-chairs of the Church
Arson Task Force joined U.S. Attorneys in Indiana and Georgia to
announce the indictment of a defendant for ten fires in those two
states, the largest number of fires charged to any one defendant during
the life of the Task Force. One of the Georgia fires resulted in the
death of a volunteer firefighter, and injuries to three others. It was
a local officer in Indiana involved with that district's church arson
task force that recognized the name of the defendant when he heard a
report on an ambulance pickup for severe burns. He questioned the
suspect at the hospital and called federal officials. The hard work of
investigators from the FBI, the ATF, and the local arson and law
enforcement offices led to charges in other fires in Indiana, and
ultimately to charges in Georgia. The investigation continues in many
other districts, supported by federal investigators and prosecutors.
II. Gaps in Current Law
The current federal hate crimes law has two serious deficits.
First, even in the most blatant cases of racial, ethnic, or religious
violence, no federal jurisdiction exists unless the federally protected
activity requirement is satisfied. This unnecessary, extra intent
requirement has led to acquittals in several of the cases in which the
Department of Justice has determined a need to assert federal
jurisdiction and has limited the ability of federal law enforcement
officials to work with state and local officials in the investigation
and prosecution of many incidents of brutal, hate-motivated violence.
Second, Sec. 245 provides no coverage whatsoever for violent hate
crimes committed because of bias based on the victim's sexual
orientation, gender, or disability. Together, these limitations have
prevented the federal government from working with state and local law
enforcement agencies in the investigation and prosecution of many of
the most heinous hate crimes.\1\
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\1\ Roughly two-thirds of the hate crimes prosecuted under federal
law are pursued as criminal violations of the Fair Housing Act, which
protects the rights of all persons to live wherever they choose free
from violence because of their race, religion, national origin, family
status, gender, or handicap. While this statute broadly protects
interference with the housing process, it is limited to residential
property and thus has significant limitations.
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S. 622, the Hate Crimes Prevention Act of 1999, would amend 18
U.S.C. Sec. 245 to address each of these jurisdictional limitations. In
cases involving racial, religious, or ethnic violence, the bill would
prohibit the intentional infliction of bodily injury without regard to
the victim's participation in one of the six specifically enumerated
``federally protected activities.'' In cases involving violent hate
crimes based on the victim's sexual orientation, gender, or disability,
the bill would prohibit the intentional infliction of bodily injury
whenever the incident involved or affected interstate commerce. These
amendments to 18 U.S.C. Sec. 245 would permit the federal government to
work in partnership with state and local officials in the investigation
and prosecution of cases that implicate the significant federal
interest in eradicating hate-based violence.
The Hate Crimes Prevention Act is a good fix. Earlier this month,
President Clinton joined with a bipartisan group of legislators to urge
its swift passage. I am pleased to join him in offering my strong
support of this bill.
It must be emphasized that, even with enactment of the bill, state
and local law enforcement agencies would continue to play the principal
role in the investigation and Prosecution of all types of hate crimes.
From 1993 through 1998, the Department of Justice brought a total of
only 32 federal hate crimes prosecutions under 18 U.S.C. Sec. 245--an
average of fewer than six per year. We expect that the enactment of S.
622 would result in a modest increase in this number but would
significantly help in our ability to assist local and state
prosecutions. Our partnership with state and local law enforcement
would continue, with state and local prosecutors continuing to take the
lead in the great majority of cases.
a. the federally protected activity requirement
In several cases in recent years, the Department of Justice has
sought to satisfy the federally protected activity requirement by
alleging that hate crimes occurred on public streets or sidewalks--
i.e., while the victims were using ``facilities'' provided or
administered by a State or local government.\2\ The Department has used
this theory successfully to prosecute the stabbing death of Yankel
Rosenbaum in Brooklyn (Crown Heights), New York and the racially-
motivated shooting of three African-American men on the streets of
Lubbock, Texas.\3\ Although the ``streets and sidewalks'' theory has
enabled the Department to reach some bias crimes that occur in public
places, these prosecutions remain subject to challenge. In the Lubbock
case, for example the defendants appealed their convictions, arguing
that public streets and sidewalks are not ``facilities'' that are
``Provided or administered'' by a state subdivision within the meaning
of 18 U.S.C. Sec. 245(b)(2)(B). The United States Court of Appeals for
the Fifth Circuit upheld the Lubbock convictions in a short,
unpublished opinion. But an appeal on similar grounds in the Crown
Heights case is now pending before the Second Circuit.
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\2\ See 18 U.S.C. Sec. 245(b)(2)(B).
\3\ The Department of Justice brought federal civil rights charges
against two defendants in the Crown Heights case after the state failed
to charge one of the defendants in state court and the state's case
against the second defendant ended in acquittal. The Department brought
federal charges against three defendants in the Lubbock case when
federal and local prosecutors, who had collaborated throughout the
investigation, agreed that the procedures and sentences available in
federal court were significantly better suited to the interests of law
enforcement, of the victims of the crime, and of the entire affected
community than were those available in state court.
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In some cases, this jurisdictional problem has undermined the
vindication of the federal interest in fighting hate-based violence.
Let me briefly tell you about three cases where the Department of
Justice brought federal hate crimes prosecutions under 18 U.S.C.
Sec. 245 after state and local prosecutors were unsuccessful at, or
declined to bring prosecutions under state law. In each case, the
Department lost at trial due to the statute's ``federally protected
activity'' requirement:
In 1994, a federal jury in Fort Worth, Texas acquitted three
white supremacists of federal criminal civil rights charges
arising from unprovoked assaults upon African-Americans,
including one incident in which the defendants knocked a man
unconscious as he stood near a bus stop. Some of the jurors
revealed after the trial that although the assaults were
clearly motivated by racial animus, there was no apparent
intent to deprive the victims of the right to participate in
any ``federally protected activity.'' The government's proof
that the defendants went out looking for African-Americans to
assault was insufficient to satisfy the requirements of 18
U.S.C. Sec. 245.
In 1982, two white men chased a man of Asian descent from a
night club in Detroit and beat him to death. The Department of
Justice prosecuted the two perpetrators under 18 U.S.C.
Sec. 245, but both were acquitted despite substantial evidence
to establish their animus based on the victim's national
origin. Although the Department has no direct evidence of the
basis for the jurors' decision, it appears that the
government's need to prove the defendants' intent to interfere
with the victim's exercise of a federally protected right--the
use of a place of public accommodation--was the weak link in
the prosecution.
In 1980, a notorious serial murderer and white supremacist
shot and wounded an African-American civil rights leader as the
civil rights leader walked from a car toward his room in a
motel in Ft. Wayne, Indiana. The Department of Justice
prosecuted the shooter under 18 U.S.C. Sec. 245, alleging that
he committed the shooting because of the victim's race and
because of the victim's participation in a federally protected
activity, i.e. the use of a place of public accommodation. The
jury found the defendant not guilty. Several jurors later
advised the press that although they were persuaded that the
defendant committed the shooting because of the victim's race,
they did not believe that he also did so because of the
victim's use of the motel.
Each of these cases involved a heinous act of violence clearly
motivated by the race, color, religion, or national origin of the
victim. In these cases, state prosecutors sought federal assistance due
to inadequate state laws or prosecutions, or they did not bring state
criminal charges at all. Yet in each case, the extra intent requirement
of 18 U.S.C. Sec. 245--that a hate crime be committed because of the
victim's participation in one of the federally protected activities
specifically enumerated in the statute--prevented the Department of
Justice from vindicating the federal interest in the punishment and
deterrence of hate-based violence.
Although a number of federal prosecutions under Sec. 245 have been
successfully pursued, even those successes highlight the arbitrariness
of the coverage of the federal statutes. For example, in 1996, five
skinheads were successfully prosecuted under Sec. 245 for brutally
assaulting an interracial couple in a city park in Des Moines, Iowa.
Had the victims been standing outside the park instead of sitting on a
bench inside the park entrance, it is likely that the assault could not
have been prosecuted federally.
The murder of James Byrd is an important example in this regard.
The collaboration between local, state and federal investigators was
essential in that case; the FBI aided a relatively small jurisdiction
in Texas with its forensic and laboratory expertise, while the U.S.
Attorneys office assisted in the trial and death penalty phase
regarding one of the defendants. We can offer much to these localities
but, in most circumstances, only if we have jurisdiction in the first
instance. The level of collaboration in Jasper was possible only
because we had a colorable claim of federal jurisdiction in that
matter.
b. violent hate crimes based on sexual orientation, gender, or
disability
Under current law, section 245 provides no federal jurisdiction for
violent attacks that occur because of sexual orientation, gender, or
disability.
a. Sexual orientation
From statistics gathered by the federal government and private
organizations, we know that a significant number of hate crimes based
on the sexual orientation of the victim are committed every year in
this country. Data collected by the FBI pursuant to the Hate Crimes
Statistics Act indicate that 1,102 bias incidents based on the sexual
orientation of the victim were reported to local law enforcement
agencies in 1997; that 1,256 such incidents were reported in 1996;
1,019 such incidents were reported in 1995; and that 677 and 806 such
incidents were reported in 1994 and 1993, respectively. The National
Coalition of Anti-Violence Programs (NCAVP), a private organization
that tracks bias incidents based on sexual orientation, reported 2,445
such incidents in 1997; 2,529 in 1996; 2,395 in 1995; 2,064 in 1994;
and 1,813 in 1993.
Even the higher statistics reported by NCAVP may significantly
understate the number of hate crimes based on sexual orientation that
actually are committed in this country. Many victims of anti-lesbian
and anti-gay incidents do not report the crimes to local law
enforcement officials because they fear that their sexual orientation
may be made public or they fear that they would receive an insensitive
or hostile response or that they would be physically abused or
otherwise mistreated. According to the NCAVP survey, 45 percent of
those who reported hate crimes to the police in 1997 labeled their
treatment by police as ``indifferent to hostile.''
Despite the prevalence of violent hate crimes committed on the
basis of sexual orientation, such crimes are not covered by 18 U.S.C.
Sec. 245 unless there is an independent basis for federal jurisdiction,
such as race-based bias. Accordingly, the federal government is without
authority to work in partnership with local law enforcement officials,
or to bring federal prosecutions, when gay men or lesbians are the
victims of murders or other violent assaults because of bias based on
their sexual orientation.
b. Gender
Although acts of violence committed against women traditionally
have been viewed as ``personal attacks'' rather than as hate crimes,
many people have come to understand that a significant number of women
``are exposed to terror, brutality, serious injury, and even death
because of their gender.'' \4\ Indeed, Congress, through the enactment
of the Violence Against Women Act (VAWA) in 1994, has recognized that
some violent assaults committed against women are bias crimes rather
than mere ``random'' attacks. The Senate Report on VAWA stated:
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\4\ Statement of Helen R. Neuborne, Executive Director, NOW Legal
Defense and Education Fund, Women and Violence: Hearing Before the
Senate Judiciary Committee, 101st Congress, 2nd Sess. 62 (1990).
The Violence Against Women Act aims to consider gender-
motivated bias crimes as seriously as other bias crimes.
Whether the attack is motivated by racial bias, ethnic bias, or
gender bias, the results are often the same. The victims are
reduced to symbols of hatred; they are chosen not because of
who they are as individuals but because of their class status.
The violence not only wounds physically, it degrades and
terrorizes, instilling fear and inhibiting the lives of all
those similarly situated. ``Placing this violence in the
context of the civil rights laws recognizes it for what it is--
---------------------------------------------------------------------------
a hate crime.''
Senate Report (No. 103-138-91993) (quoting testimony of Prof. Burt
Neuborne).
VAWA provides private parties a broad civil remedy for violence
against women motivated by gender-based bias.\5\ However, VAWA's two
criminal provisions regarding violence against women provide extremely
limited coverage. Specifically, VAWA's prohibition on interstate
domestic violence, 18 U.S.C. Sec. 2261, is limited to violence against
a defendant's ``spouse or intimate partner'' and requires that the
defendant travel across a state line. VAWA's other criminal provision,
18 U.S.C. Sec. 2262, prohibits the violation of a ``protection order''
if the defendant travels across state lines with the intent to engage
in conduct that violates that order.
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\5\ See 42 U.S.C. Sec. 13981.
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The structure of VAWA's criminal provisions gives rise to at least
two important concerns. First, because of VAWA's victim-based
limitation--the requirement that the victim be a ``spouse or intimate
partner''--VAWA does not give the Department of Justice adequate
authority to address a significant number of violent gender-motivated
crimes. Serial rapists, for example, fall outside the reach of VAWA's
criminal provisions even if their crimes are clearly motivated by
gender-based hate and even if they operate interstate. Second, because
VAWA's criminal provisions contain no requirement that the violence be
motivated by gender-based bias, a conviction under VAWA may not fully
vindicate the interest in punishing gender-based crimes.
The federal government should have jurisdiction to work together
with state and local law enforcement officials in the investigation of
violent gender-based hate crimes. And, in rare circumstances, the
federal government should have jurisdiction to bring federal
prosecutions aimed at vindicating the strong federal interest in
combating the most heinous gender-based crimes of violence.\6\
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\6\ Although all 50 states have statutes prohibiting rape and other
crimes typically committed against women, only 19 states and the
District of Columbia have hate crimes statutes that include gender
among the categories of prohibited bias motives.
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I want to emphasize that including gender in Sec. 245 would not
result in the federalization of all sexual assaults or acts of domestic
violence. The language of the bill itself, together with the manner in
which the Department of Justice would interpret that language, would
strictly limit federal investigations and prosecutions of violent
gender-based hate crimes, especially since federal prosecutors will
have to prove not only that the perpetrator committed the act, but also
that the perpetrator did so because of gender-based bias. We would rely
on this authority only in cases where federal jurisdiction is needed to
achieve justice in a particular case. Just as with other categories of
hate crimes, state and local authorities would continue to prosecute
virtually all gender-motivated hate crimes.
We would expect courts deciding gender-bias cases under an amended
Sec. 245 to consider the same types of evidence that they consider in
analogous contexts in which motive must be proved. This evidence could
include: (i) statements of motive the defendant made before, during,
or, after the offense that tend to indicate the defendant's motive;
(ii) the absence of any evidence of an alternative motive; (iii) the
defendant's use of epithets during the offense; (iv) other aspects of
the offense itself, such as mutilation of the victim's genitals other
acts of extreme violence, that may indicate hatred based on gender; and
(v) other related or similar bias-motivated conduct of the defendant.
As indicated elsewhere, we expect that most gender based crimes would
continue to be prosecuted by state and local prosecutors.
c. Disability
Congress has shown a sustained commitment over the past decade to
the protection of persons with disabilities from discrimination based
on their disabilities. With Section 504 of the Rehabilitation Act of
1973, the 1988 amendments to the Fair Housing Act,\7\ and the Americans
with Disabilities Act of 1990, Congress has extended civil rights
protections to persons with disabilities in many traditional civil
rights contexts.
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\7\ Congress amended the Fair Housing Act in 1988 to grant the
Attorney General authority to prosecute those who use force or threats
of force to interfere with the right of a person with a disability to
obtain housing.
---------------------------------------------------------------------------
Concerned about the problem of disability-based hate crimes,
Congress also amended the Hate Crimes Statistics Act in 1994 to require
the FBI to collect information about such hate-based incidents from
state and local law enforcement agencies. The information we have
available indicates that a significant number of hate crimes committed
because of the victim's disability are not resolved satisfactorily at
the state and local level. For example, in Denver in 1991. a paraplegic
died from asphyxiation when a group of youths stuffed him upside down
in a trash can. Calling the incident a ``cruel prank,'' local police
declined to investigate the matter as a bias-related crime.
The Department of Justice believes that the federal interest in
working together with state and local officials in the investigation
and prosecution of hate crimes based on disability is sufficiently
strong to warrant amendment of 18 U.S.C. Sec. 245 to include such
crimes when they result in bodily injury and when federal prosecution
is consistent with the Commerce Clause.
c. federalization and jurisdiction
The Department of Justice has carefully reviewed S. 622 and
concludes that its enactment would neither result in a significant
increase in federal hate crimes prosecutions nor impose an undue burden
on federal law enforcement resources. The language of the bill itself,
as well as the manner in which the Department would interpret that
language, would ensure that the federal government would strictly limit
its investigations and prosecutions of hate crimes--including those
based on gender--to the cases where jurisdiction is needed to achieve
justice in a particular case. The decision to use this authority would
only be made after consultation with state and local officials.
The Department's efforts under the proposed amendments to 18 U.S.C.
Sec. 245 would be guided by Department-wide policies that would impose
additional limitations on the cases prosecuted by the federal
government. First, under the ``backstop policy'' that applies to all of
the Department's criminal civil rights investigations, the Department
works with state and local officials and would generally defer
prosecution in the first instance to state and local law enforcement.
Only in highly sensitive cases in which the federal interest in prompt
federal investigation and prosecution outweighs the usual
justifications of the backstop policy would the federal government take
a more active role. Under this policy, we are available to aid local
and state investigations as they pursue prosecutions, as we did in the
Jasper case. Under this policy, we are also in a position to ensure
that, in the event a state can not or will not vindicate the federal
interest, we can pursue prosecutions independently. Second, under the
Department's formal policy on dual and successive prosecutions, the
Department would not bring a federal prosecution following a state
prosecution arising from the same incident unless the matter involved a
``substantial federal interest'' that the state prosecution had left
``demonstrably unvindicated.''
The express language of the bill also contains several important
limiting principles. First, the bill requires proof that an offense was
motivated by hatred based on race, color, national origin, religion,
sexual orientation, gender, or disability; as it has in the past, this
requirement would continue to limit the pool of potential federal cases
to those in which the evidence of hate-based motivation is sufficient
to distinguish them from ordinary state law cases. Second, the bill
excludes misdemeanors and limits federal hate crimes based on sexual
orientation, gender, or disability to those involving bodily injury
(and a limited set of attempts to cause bodily injury); these
limitations would narrow the set of newly federalized cases to truly
serious offenses. Third, the bill's Commerce Clause element requires
proof of nexus to interstate commerce in cases involving conduct based
on bias covered by any of the newly protected categories; this
requirement would limit federal jurisdiction in these categories to
cases that implicate interstate interests. Finally, 18 U.S.C. Sec. 245
already requires a written certification by the Attorney General, the
Deputy Attorney General, the Associate Attorney General, or a specially
designated Assistant Attorney General that ``in his [or her] judgment a
prosecution by the United States is in the public interest and
necessary to secure substantial justice'' before any prosecution under
the statute may be commenced.\8\ This statutory certification
requirement, which would extend to all prosecutions authorized by S.
622, would ensure that the Department's new areas of hate crimes
jurisdiction would be asserted in a properly limited fashion.
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\8\ See 18 U.S.C. Sec. 245(a)(1).
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Finally, the Hate Crimes Prevention Act is fully consistent with
constitutional requirements regarding the scope of Congressional
powers. Proposed subsection (c)(1), the provision which essentially
eliminates the ``federally protected activity'' requirement, is
authorized by the Thirteenth Amendment, which permits Congress to
regulate violent hate crimes motivated by race, color, religion or
national origin. Proposed subsection (c)(2), which would prohibit the
intentional infliction of bodily injury (or an attempt to inflict
bodily injury through the use of fire, a firearm, or an explosive
decide) on the basis of religion, gender, sexual orientation, or
disability, requires proof of a Commerce Clause nexus as an element of
the offense. Specifically, the government would have to prove ``that
(i) in connection with the offense, the defendant or the victim travels
in interstate or foreign commerce, uses a facility or instrumentality
of interstate or foreign commerce, or engages in activity affecting
interstate or foreign commerce; or (ii) the offense is in or affects
interstate or foreign commerce.'' The government would bear the burden
at trial of proving the interstate commerce nexus beyond a reasonable
doubt. We believe that the interstate commerce element contained in S.
622 for hate crimes based on sexual orientation, gender, or disability
would fully satisfy Congress' obligation to comply with the Commerce
Clause. The interstate commerce nexus required by the bill is analogous
to that required in many other federal criminal statutes, including the
Church Arson Prevention Act, the Hobbs Act, and the Racketeer
Influenced and Corrupt Organizations Act (RICO). Accordingly, the
interstate commerce element would ensure that hate crimes prosecutions
brought under the new statute would not be mired in constitutional
litigation concerning the scope of Congress' power.
Conclusion
We must look at the root causes of hate crime. Intolerance often
begins not with a violent act, but with a small indignity or bigoted
remark. To move forward as one community, we must work against the
stereotypes and prejudices that spawn these actions. We must foster
understanding and respect in our homes and our neighborhoods, in our
schools and on our college campuses.
We also realize that legislation, while an important part of the
solution, will not solve this problem alone. We must look at the root
causes of hate crime. Intolerance often begins not with a violent act,
but with a small indignity or bigoted remark. To move forward as one
community, we must work against the stereotypes and prejudices that
spawn these actions.
Hate is learned. It can be unlearned. We must engage our schools in
the crucial task of teaching our children moral values and social
responsibility. Educators can play a vital role in preventing the
development of the prejudice and stereotyping that leads to hate crime.
I am pleased that the Department will be assisting a new partnership
announced last month by the President in its efforts to develop a
program for middle school students on tolerance and diversity. Also,
over the past few years, through an interagency agreement, the
Departments of Justice and Education helped publish the curriculum
called ``Healing the Hate, a National Bias Crime Prevention Curriculum
for Middle Schools'' and have conducted 3 regional training and
technical assistance conferences throughout the nation. In addition to
the regional trainings, we have provided Training and Technical
Assistance to a dozen or more national juvenile prevention groups and
organizations, including the National Council of Juvenile Court Judges
and various local communities in which churches were burned.
Where does hatred start? Hatred starts oftentimes in someone who
feels alone, confused and unloved. I look at a young perpetrator and I
know that at so many points along the way, we could have intervened and
helped him take a better path. We have to invest in our children. We
have to help them grow in strength, in positive values, and in respect
and love for others.
We also believe, however, that law enforcement has a significant
role to play. The enactment of S. 622 would significantly increase the
ability of state and federal law enforcement agencies to work together
to solve and prevent a wide range of violent hate crimes committed
because of bias based on the race, color, national origin, religion,
sexual orientation, gender, or disability of the victim. This bill is a
thoughtful, measured response to a critical problem facing our Nation.
I look forward to answering any questions that you might have.
The Chairman. We are very pleased to welcome the members of
the second panel, and I am very grateful to Senator Specter for
being willing to chair the remainder of these hearings because
of the pressures I have.
First, we will hear from Ms. Judy Shepard, to whom I have
already expressed my heartfelt condolences, as well as my
deepest thanks for being willing to appear before us today.
Then we will hear from Jeanine Pirro, who has served for
more than 8 years as district attorney of Westchester County,
in New York, and who, before that time, sat as a county court
judge hearing criminal matters.
We will then hear from Kenneth Brown, who for approximately
10 years has served as a prosecutor in Wyoming's Albany County
and whose office is now undertaking the prosecution of the
terrible crime against Matthew Shepard.
Mr. Robert Knight will follow. He is the senior director of
cultural studies at the Family Research Council. Then we will
hear from Prof. Burt Neuborne, of the New York University Law
School, and then from Prof. Akhil Amar of Yale Law School.
We are really pleased to welcome all of you here. We
appreciate seeing a number of you again and we look forward to
hearing every one of your testimonies here today. I
particularly would like to stay for you, Ms. Shepard. I should
have left a while ago, but I wanted to hear what you have to
say, and then we will turn the chair over to Senator Specter.
So we will turn to you, Ms. Shepard, and then maybe I can
just make one comment and ask one question.
PANEL CONSISTING OF JUDY SHEPARD, CASPER, WY; JEANINE FERRIS
PIRRO, WESTCHESTER COUNTY DISTRICT ATTORNEY, WHITE PLAINS, NY;
KENNETH T. BROWN, CHIEF DEPUTY AND PROSECUTING ATTORNEY FOR
ALBANY COUNTY, LARAMIE, WY; ROBERT H. KNIGHT, DIRECTOR OF
CULTURAL STUDIES, FAMILY RESEARCH COUNCIL, WASHINGTON, DC; BURT
NEUBORNE, JOHN NORTON POMEROY PROFESSOR OF LAW, NEW YORK
UNIVERSITY SCHOOL OF LAW, NEW YORK, NY; AND AKHIL REED AMAR,
PROFESSOR OF LAW, YALE LAW SCHOOL, NEW HAVEN, CT
STATEMENT OF JUDY SHEPARD
Ms. Shepard. Thank you, Mr. Chairman, Senator Specter,
other members of the committee. My name is Judy Shepard and I
am from Casper, WY. My husband Dennis and I are currently
living in Saudi Arabia, where he works for an oil company.
Today, I sit before this committee to urge the passage of
the Hate Crimes Prevention Act. My son Matthew was the victim
of a brutal hate crime, and I believe this legislation is
necessary to make sure no family again has to suffer like mine.
I know this measure is not a cure-all and it won't stop all
hate violence, but it will send the message that this senseless
violence is unacceptable and un-American. It will let
perpetrators of hate violence know their actions will be
punished.
To help you understand how this event has transformed and
impacted our family, I would like to briefly tell you about
Matt. You need to see him as we do to try and understand our
loss. However, I am not sure we really understand it yet.
Matt would be the first to say he was not a perfect child.
He made mistakes, but those mistakes hurt no one but himself.
He had such hopes for the future, his future. He was anxious
for the next stage of his life to begin. Every new step meant
new challenges, new friends, and new experiences. I love him
more than I can express in this statement. He was my friend, my
confidante, my consistent reminder of how good life can be, and
how hurtful.
On October 8, my husband and I were awakened in the middle
of the night in Saudi Arabia by a telephone call no parent
should ever have to receive. What we heard changed our lives
forever. Our son, we were told, was in a coma after having been
brutally attacked, in part because he was gay. Dennis and I
flew back to the States and met up with our youngest son Logan.
In Matt's room at the hospital, what we found was a
motionless, unaware young man with his head swathed in
bandages, his face covered with stitches, and tubes everywhere
enabling the body to hold on to life. One of his eyes was
partially open, but the twinkle of life was there no more.
Logan at first refused to go into the room. He didn't want
this picture to be the one that came to mind when he thought of
Matt. However, he soon realized this was probably the last
opportunity he would have to say goodbye. We could see him
talking to Matt and stroking his face while holding his hand.
On October 12, Matt was pronounced dead, and I can assure
opponents of this legislation firsthand it was not words or
thoughts, but violent actions that killed my son. Matt is no
longer with us today because the men who killed him learned to
hate. Somehow and somewhere, they received the message that the
lives of gay people are not as worthy of respect, dignity and
honor as the lives of other people. They were given the
impression that society condoned, or at least was indifferent
to violence against gay and lesbian Americans.
Today, we have it within our power to send a very different
message than the one received by the people who killed my son.
It is time to stop living in denial and to address a real
problem that is destroying families like mine and James Byrd
Jr.'s and Billy Jack Gaither's and many others across America.
It is time to pass the Hate Crimes Prevention Act.
Opponents of this bill will say that the men who killed
Matt will be punished with life in prison or even the death
penalty. What more could a new law do, they ask. Maybe nothing
in this case, but we will never know, will we? Perhaps these
murderers would have gotten the message that this country does
not tolerate hate-motivated violence. Maybe I would not have to
be here today talking about how my son was savagely beaten,
tied to a fence and left to die in freezing temperatures.
I want to take a moment to offer my thanks to the dedicated
law enforcement officers in Wyoming, in particular in Laramie,
who worked so hard to ensure justice for my family. We will
never forget your commitment, assistance and compassion in this
most difficult time of our lives. But not every family who is
victimized by hate violence will be as fortunate as ours. Law
enforcement sometimes lacks personnel, resources, or the
determination needed to properly investigate and prosecute hate
crimes.
The Hate Crimes Prevention Act would serve as a tool for
law enforcement, allowing Federal assistance where it is most
needed. It is cruel and unjust to tell suffering families who
need Federal assistance that there is no place they can turn
for help. Contrary to what some people may say, the Hate Crimes
Prevention Act does not play one victim's life above another.
It is the denial of justice that treats some victims and their
families unequally.
The Hate Crimes Prevention Act does not increase
punishment, but it can help ensure all crimes are taken
seriously, no matter who the victims are, what they look like,
or where they live. The Hate Crimes Prevention Act will also
expand the circumstances where Federal intervention can occur.
Under current law, a hate crime can be federally prosecuted
only if it takes place on Federal property or because the
victim is exercising a federally protected right, such as
enrolling in school or serving as a juror. These limitations
can tie the hands of those investigating and prosecuting hate
crimes, as well as deny families the assistance they need.
While State and local authorities have, and will continue
to play the primary role in the investigation and prosecution
of hate violence, Federal jurisdiction would provide an
important backstop to ensure that justice is achieved in every
case. The Hate Crimes Prevention Act limits the Federal
Government's jurisdiction to only the most serious violent
crimes against people, not property.
Today, I not only speak for myself, but for all the victims
of hate crimes you will never hear about. Since 1991, hate
crimes have nearly doubled. In 1997, the FBI's most recent
reporting period, race-related hate crimes were by far the most
common, representing nearly 60 percent of all cases. Hate
crimes based on religion represented 17 percent of all cases.
Hate crimes against gay, lesbian and bisexual Americans
increased by 8 percent, or 14 percent of all hate crimes
reported. We need to decide what kind of Nation we want to be,
one that treats all people with dignity and respect or one that
allows some people and their family members to be marginalized.
I know personally that there is a hole in my existence. I
will never again experience Matt's laugh, his wonderful hugs,
his stories. I know Matt would be very disappointed in me if I
gave up. He would be disappointed in all of us if we gave up.
Today, we can make a powerful statement and help create a
climate that fosters the emergence of a more tolerant America.
On behalf of my family, I call on the Congress of the United
States to pass the Hate Crimes Prevention Act without delay. If
even one family could avoid getting that phone call in the
middle of the night because of this legislation, then it would
be well worth it.
Thank you, Senators.
The Chairman. Well, thank you, Ms. Shepard. I wanted to
stay to hear your testimony. I wish I could stay for all of
your testimonies, but I will read them and pay strict attention
to them.
I want to commend you for your strength and your courage in
coming here today. You have endured with such grace and dignity
the difficulties you have had. This is a trauma that no mother
should ever have to face or to ensure. I can only say that your
actions and your words on behalf of your son Matthew do him the
greatest honor, so we are grateful to have you here.
I am very concerned about this area, very concerned that we
are not doing everything we should do. On the other hand, I am
very concerned that we may be doing more than we should do,
too; in other words, that the States are capable and do do a
good job in these areas, and local governments. So it is a very
tough set of questions for me, but I am going to do everything
in my power to try and resolve them in the right way for all
concerned.
I am just very grateful to Senator Specter for being
willing to chair the remainder of this hearing. I want to thank
all of you for being here, but above all, you, Ms. Shepard. You
have my deepest sympathy.
Ms. Shepard. Thank you, Mr. Chairman.
The Chairman. Before I leave, we will put Senator Leahy's
statement in the record at the appropriate place.
[The prepared statement of Senator Leahy follows:]
Prepared Statement of Hon. Patrick Leahy, a U.S. Senator From the State
of Vermont
I commend Senator Kennedy for his leadership on the ``Hate Crimes
Prevention Act'' and I am proud to cosponsor it. This bill would amend
the federal hate crimes statute to make it easier for federal law
enforcement officials to investigate and prosecute cases of racial and
religious violence. It would also focus the attention and resources of
the federal government on the problem of hate crimes committed against
people because of their sexual preference, gender, or disability.
As the Ranking Member of the Judiciary Committee, I have worked
with Senator Kennedy for some time on this issue and on this hearing,
which was initially announced in March to be taking place in April. I
regret that it was unnecessarily postponed, and I hope that we can make
progress today on this important problem.
Violent crime motivated by prejudice demands attention from all of
us. It is not a new problem, but recent incidents of hate crimes have
shocked the American conscience. The beating death of Matthew Shepard
in Wyoming was one of those crimes, the dragging death of James Byrd in
Texas was another. The recent murder of Billy Jack Gaither in Alabama
appears to be yet another. And the singling out and brutal killing of
Isaiah Shoals in Columbine High School in Littleton, Colorado may be
another. These are sensational crimes, the ones that focus public
attention. But there is a toll we are paying each year in other hate
crimes that find less notoriety, but with, no less suffering for the
victims and their families.
It remains painfully clear that we as a nation still have serious
work to do in protecting all Americans and ensuring equal rights for
all our citizens. The answer to hate and bigotry must ultimately be
found in increased respect and tolerance. But strengthening our federal
hate crimes legislation is a step in the right direction. Bigotry and
hatred are corrosive elements in any society, but especially in a
country as diverse and open as ours. We need to make clear that a
bigoted attack on one or some of us diminishes each of us, and it
diminishes our nation. As a nation, we must say loudly and clearly that
we will defend ourselves against such violence. We recently witnessed
in the school violence in Colorado what hatred inspired violence can
do.
All Americans have the right to live, travel and gather where they
choose. In the past we have responded as a nation to deter and to
punish violent denials of civil rights. We have enacted federal laws to
protect the civil rights of all of our citizens for more than 100
years. This continues that great and honorable tradition.
Several of us come to this issue with backgrounds in local law
enforcement. We support local law enforcement and work for initiatives
that assist law enforcement. It is in that vein that I support the Hate
Crimes Prevention Act, which has received strong bipartisan support
from state and local law enforcement organizations across the country.
When the committee takes up the issue of hate crimes, one of the
questions that must be addressed is whether the bill as drafted is
sufficiently respectful of state and local law enforcement interests. I
welcome such questions and believe that Congress should think carefully
before federalizing prohibitions that already exist at the state level.
To my mind, there is nothing questionable about the notion that
hate crimes warrant federal attention. As evidenced by the national
outrage at the Byrd, Shepard, Gaither and Schoals murders, hate crimes
have a broader and more injurious impact on our national society than
ordinary street crimes. The 1991 murder in the Crown Heights section of
Brooklyn, New York, of an Hasidic Jew, Yankel Rosenbaum, by a youth
later tried federally for violation of the hate crime law, showed that
hate crimes may lead to civil unrest and even riots. This heightens the
federal interest in such cases, warranting enhanced federal penalties,
particularly if the state declines the case or does not adequately
investigate or prosecute it.
Beyond this, hate crimes may be committed by multiple offenders who
belong to hate groups that operate across state lines. Criminal
activity with substantial multi-state or international aspects raises
federal interests and warrants federal enforcement attention.
Current law already provides some measure of protection against
excessive federalization by requiring the Attorney General to certify
all prosecutions under the hate crimes statute as being ``in the public
interest and necessary to secure substantial justice.'' We should be
confident that this provision is sufficient to ensure restraint at the
federal level under the broader hate crimes legislation that we
introduce today. I look forward to examining that issue and considering
ways to guard against unwarranted federal intrusions under this
legislation. In the end, we should work on a bipartisan basis to ensure
that the Hate Crimes Prevention Act operates as intended, strengthening
federal Jurisdiction over hate crimes as a back-up, but not a
substitute, for state and local law enforcement.
Recently the Senate honored Rosa Parks with a medal for her role in
the civil rights movement. Ms. Parks is now a resident of Michigan
because, as Senator Levin explained, she and her family felt unsafe
based on the harassment she experienced in another state. A lasting
tribute to Rosa Parks would be not only to honor the past but to work
to improve the present and future. The Senate should take action
consummate with the great tradition of equality in the nation by
passing the Hate Crime Prevention Act of 1999.
The Chairman. We will turn to you, then, Ms. Pirro. I am
sorry I have to leave, but I look forward to reading your
testimony anyway.
Senator Specter [presiding]. Before District Attorney Pirro
starts to testify, just a comment or two, Ms. Shepard. I am
very, very sorry to see what happened to your son.
Ms. Shepard. Thank you, Senator.
Senator Specter. It was a great tragedy, and I compliment
you for stepping forward. I know it is very hard for you to
come and to testify. That is obvious. But I think that what
happened to your son could set an example for the country,
really for the world. The brutality and the callousness of it
and the tragedy of it has moved a lot of people, and your son's
case and others could be a great impetus for getting this
legislation passed.
And make no mistake about it, when the Federal Government
is involved, it is different, it is different. The Federal
Government brings resources and power and a level of activity
which is very, very significant. So we thank you.
Ms. Shepard. Thank you, Senator.
Senator Specter. District Attorney Pirro, we welcome you
here. You have the second best job in government. The best job
in government, from my experience, has been being an assistant
district attorney.
STATEMENT OF JEANINE FERRIS PIRRO
Ms. Pirro. Well, I have always believed that I do have the
best job in government. Thank you very much, Senator.
Senator Specter. We look forward to your testimony. You may
proceed.
All statements will be made a part of the record, and we
shall limit you to the 5 minutes. Thank you.
Ms. Pirro. I was invited here today by both Republican and
Democratic members of this committee, and I am grateful that
Senators from both parties are willing to listen to and
consider the perspective of a local prosecutor, albeit it one
from a county with almost a million people. I am here as an
individual, as a mother of two children, and as a law
enforcement officer with a quarter century experience as a
prosecutor and a judge.
The vast majority of criminal prosecutions in this country
are brought by local prosecutors. That is the way our
government is structured and that is the way it should remain.
I am pleased to note that counsel on both sides of the aisle
indicate that regardless of any congressional action here,
State and local officials should retain principal
responsibility for hate crime investigations and prosecutions.
As a prosecutor, I am concerned about the proliferation of
companion Federal crimes in areas where State criminal statutes
are sufficient. As a Republican, I am reluctant to endorse the
creation in Washington a bigger, broader bureaucracy. And as an
American, I am hesitant to delegate decisions basic to the
security of my community to officials who are not directly
accountable to that community. However, there are times when
States are unable or unwilling to recognize and address
fundamental issues vital to our society. And when that time
comes, the Federal Government must act.
Hate crime is a civil rights issue, and the proper role of
the Federal Government in controlling this menace should mirror
Federal action in other areas of civil rights. In the 1960's,
there were States that were unwilling to guarantee equal rights
to all Americans, and so citizens across our Nation responded
by raising their voices in a cry for justice. People marched in
small groups and large. They convened in local churches and
synagogues, on college campuses, and they gathered on the great
Mall here in Washington. Eventually, our Government declared
that civil rights cannot be allowed to fall prey to bigotry and
intolerance. Senator, we are still marching.
Thirty-five years after Federal civil rights laws were
enacted, men and women, young and old, constituents of every
walk of life who reside in each of your States and in mine,
continue to be targeted by those who breed hatred and
dissension because of the color of their skin, their heritage,
their religious affiliation, their disability, their gender, or
perceived sexual orientation. And some of our States remain
unmoved by this human tragedy.
As district attorney of Westchester County, I have seen far
too many violent crimes motivated by hatred and bigotry. I have
seen the planting of explosive devices, assaults, and other
hideous acts. In an incident police categorized as a hate
crime, an African-American man was shot and killed over a
parking space in a small community in Westchester.
And I have also prosecuted and convicted those who have
stabbed other persons simply because they were Hispanic,
because they were Dominican, or because they were a member of a
specific minority community. We have prosecuted cases against
those who beat victims with a bat, who attack young men with
box cutter knives, and who shoot others in the hand only
because their victims were African-American.
As president-elect of the New York State District Attorneys
Association, together with New York Governor George Pataki, I
have crusaded for a New York State law that would enhance the
penalty for crimes of hatred. I have marched with local
community members 2,000 strong, Christians and Jews, African-
Americans and caucasians, men and women of every segment of our
society, shoulder to shoulder, to protest acts of hatred that
destroy the very foundation of our community.
The statistics on hate crimes are clear. States that have
enacted comprehensive hate crime statutes provide prosecutors
and police with the tools necessary to confront these
criminals. Last year in New York, a State without comprehensive
hate crime laws, anti-Semitic incidents were higher than in any
other State in the Union. African-Americans remain the target
of racially-motivated violence, notably the 38-year-old Albany
woman shot in the neck as she stood outside a friend's house by
two white youths prowling a black neighborhood looking to shoot
an African-American. And as we all know, the torching of
traditional black churches, a relic of decades past, is still
with us.
And criminal acts targeted at gays and lesbians continue to
rise. Last year, a New York City man was verbally abused,
chased and severely beaten by three assailants yelling antigay
slurs. He was attacked with a bottle and ultimately lost his
eye.
There are those who argue that hate crimes legislation
provides special rights for select victims. I can assure those
naysayers that once a crime of violence takes place, no
criminal legislation can restore to the victim what they have
lost. We are all entitled to a sense of safety and security,
and after a violent act the best that a victim can hope for is
justice.
But unlike an assault, an assault motivated by hatred
targets and injures not only the intended victim, but also the
entire community that has been terrorized by this act.
Senator Specter. Ms. Pirro, could you summarize your
statement at this point?
Ms. Pirro. I maintain hope that Federal action on this
pressing issue will encourage States like New York to enact
legislation of their own in much the same way that States
enacted civil rights legislation. And although I have no
illusions that hate crime laws will end hatred, I believe that
it is important for us to send a message that our society is
founded on freedom and tolerance, not on violence and
divisiveness.
Thank you.
Senator Specter. Thank you very much, DA Pirro. We very
much appreciate your being here.
We turn now to Kenneth Brown, chief deputy and prosecuting
attorney for Albany County, Laramie, WY. Welcome, Mr. Brown,
and the floor is yours.
STATEMENT OF KENNETH T. BROWN
Mr. Brown. Thank you, Senator Specter, fellow witnesses and
interested persons. Thank you for allowing me this opportunity.
I would like to begin by stating that it is certainly an honor
to follow Judy Shepard. She and her husband have had to
persevere through an unimaginable tragedy, and have
courageously and industriously heightened awareness of the
terrible toll which hate crimes exact upon our Nation.
As introduced, I am Ken Brown, chief deputy prosecutor in
Laramie, WY. It is our office which has been and currently is
involved in the prosecution of the men responsible for Matthew
Shepard's death. Laramie is located in southeastern Wyoming and
is approximately 25,000 in population. We are not a university
town in Wyoming; we are the university town.
I believe it is proper to outline the dynamics of our
office. We are three attorneys in number. Two deputies assist
the elected county attorney. We are on call 24 hours a day.
Each attorney in our office handles felonies, misdemeanors,
juvenile matters; provides civil advice to our Board of County
Commissioners; and is basically prepared to address any legal
situation which may develop in Albany County. There are no
separate divisions, no departments, no administrative levels.
We do not second-chair one another's trials because we
simply cannot afford the time away from our own caseload. As
such, we handle thousands of criminal matters over the course
of a term of office. Several have been the focus of national
attention, such as the Matthew Shepard case. I am proud to be a
prosecutor in Albany County simply because Wyoming's people
possess a sound work ethic, an enlightened view of fairness and
justice, and truly embrace traditional American values. Hate is
not a Wyoming value.
There has been an extremely positive response within the
community to the tragic death of Matthew Shepard. Wyoming's
single greatest resource, its people, and specifically the
citizens of Albany County, have stood solidly behind the
prosecution of this matter and will continue to do so until a
just disposition is achieved.
However, a case of this magnitude and import puts a
financial strain on our county like nothing else we have
experienced. It is not extraordinary for a case like the
Shepard matter which has a death penalty component to cost
$100,000, $150,000, or more. With jury sequestration, huge
witness costs and heightened 24-hour security, we easily exceed
our annually anticipated budget 10-fold. Our county
commissioners are left struggling to approve $80 vouchers.
Bills can't be paid. Growth and development are hindered, if
not reversed, in our county. The money simply isn't there. Yet,
we cannot and will not compromise justice, given these
financial constraints.
As the Shepard matter progressed through stages of growing
media focus, our office was contacted by numerous
representatives of the Federal Government--the FBI, the U.S.
Marshals Office, the Nation's Attorney General, and even our
Chief Executive. We were wished well and told that we could
count on the Federal Government for support, including
financial support. Our county commissioners were told that
money would be made available for these inherent trial
expenses.
By the fifth day of jury selection in the Russell Henderson
trial, we had not received a dime. Federal personnel had
stopped contacting our office, and the only thing that we did
receive was some advice. The advice Janet Reno's office offered
was that we wear blue shirts, as they appeared better on
television cameras. We then asked the Federal Government when
the money would be there and we were told that someone who had
lacked the authority had made these representations to us.
So, Senator, what Albany County needs is not a bill that
promises us people or that discusses law enforcement officer
training. Albany County has all the capable personnel necessary
to successfully prosecute their own criminal offenses. Our
local law enforcement agencies have a time-proven ability in
providing courthouse security, witness transportation, and in
keeping sequestered juries safe and free from outside
influence.
We don't need brand new players on our team, unfamiliar
with the territory and at a huge additional expense to
taxpayers. Our detectives and investigators offer a quality
work product that simply cannot be enhanced by outsiders. And
our prosecutors are, first and foremost, trial attorneys
capable of handling any criminal violation of Wyoming statutes
and bringing about successful prosecution of those cases.
So save our taxpayer dollars; keep your teams of Federal
bodies; save your education, as we have the ability to
recognize statutory offenses. Instead, provide small
prosecuting offices like ours with financial assistance. Give
us the ability to remain tough in our posture against local
crime in those cases where hate rears its insidious head. You
can do nothing more to help prosecuting offices, law
enforcement agencies, and small, decent communities like
Laramie, WY, all across this Nation.
Thank you.
Senator Specter. Thank you very much, Mr. Brown.
We turn now to Mr. Robert H. Knight, Senior Director of
Cultural Studies, Family Research Council, here in Washington.
Thank you for joining us, Mr. Knight, and the floor is yours.
STATEMENT OF ROBERT H. KNIGHT
Mr. Knight. Thank you, Senator Specter. Family Research
Council represents more than 450,000 families around the
Nation, and I have also been told we speak for many other pro-
family groups particularly on this issue.
I would like to point out right off the bat that we believe
every violent crime should be prosecuted under the fullest
extent of the law. Certainly, Mr. Shepard's crime should have
been prosecuted under the fullest extent of the law, and
apparently it was, and that is the way things should be. Mr.
Byrd's crime in Texas, the same thing.
I do find troubling that nobody has mentioned Littleton,
CO, in this whole proceeding because under this proposed
legislation some of the victims of the Littleton shootings
would not have been covered because they were targeted because
they were athletes. I think every murder is a hate crime. Every
crime against a person should be prosecuted as fully as the
next crime.
In Wyoming, 8-year-old Kristen Lamb was abducted, raped,
murdered and dumped in a landfill last July. Yet, according to
Governor Jim Geringer, who appeared on CNN, her death didn't
even make a blip in the national press. So we have to ask why.
Well, her death was not a politically correct crime, as many
crimes are not. Run-of-the-mill crime victims don't have a
lobby. They don't have people to speak for them and say this
crime is more horrendous than another crime.
I am amazed at Senator Kennedy. He is not here to defend
his remark, but he said that--and I think I am correct in
saying this--he said that not every rape involves gender
animus. You know, I can't imagine, if a woman were here who had
been raped, she could take the Senator seriously. Every rape is
a crime against all women. It is a crime against the community.
It sends communities into sheer panic. When a child is snatched
and abducted and molested, which happens thousands of times a
year in this country, that is a crime against the whole
community. Yet, that wouldn't be covered under this.
The whole concept of hate crimes is flawed because it sets
up special classes of victims afforded a higher level of
government protection than others victimized by similar crimes.
That violates the concept of equal protection. It politicizes
criminal prosecutions.
Mr. Holder said that he wanted the option of intervening in
cases that he thought were particularly important and that the
Federal Government ought to be able to do that. That means
there would be great pressure on local law enforcement agencies
to do cases that the Federal Government thought were important.
That could take resources away from the run-of-the-mill crime
victim who doesn't have a lobby behind him or her.
It would vastly expand the power and jurisdiction of the
Federal Government to intervene in local law enforcement
matters. And, finally, it would have a chilling effect on
freedom of speech by making unpopular ideas a basis for harsher
treatment in criminal proceedings. Over half of the hate crimes
in the last Justice Department report were categorized as
simple assault or name calling. This bill basically would make
name calling literally a Federal case.
The definition of what constitutes a hate crime, while
unclear is some instances, is very clear in others. One of the
problems with this whole concept is the matter of blame.
Following Family Research Council's ad campaign, which we
called the Truth in Love Campaign, which ran with several other
pro-family groups, that said that homosexuals are loved by God
and have dignity because they are creations of God in his
image, and therefore deserve the truth, the truth that can set
them free--that was denounced as hateful rhetoric.
In fact, observers like Katie Couric actually tied poor Mr.
Shepard's killing to our ad campaign preaching the gospel of
Jesus Christ. This disturbs us greatly. On the one hand, we are
told that hate causes crime, and on the other hand we are told
that spreading the gospel of Jesus Christ is a form of hate.
Now, we are looking at a drive to silence opposition to
homosexual activism. That is another reason we oppose this
bill.
We are not the only ones. The Washington Post has
editorialized against this bill because they think it will
create the concept of thought crime, the idea that the attitude
of the perpetrator is more important than what actually happens
to the victim. The Post is joined by William Raspberry,
Clarence Page, Michael Kelly, Nat Hentoff, other liberal
columnists who are waking up to the fact that, while well-
intentioned, because none of us wants hate crimes, none of us
wants people abused, a law like this could be greatly abused.
It could lead to charges of incitement against people who
merely oppose homosexual activism.
In Canada, it is already illegal to broadcast criticism of
homosexuality over the airwaves. Now, they don't have a first
amendment as we do, but I think the examples that have occurred
in Canada are chilling. A mayor in Hamilton, ON, was told he
was committing a hate crime because he wouldn't pronounce Gay
Pride Week. He just said, gee, it is a blue-collar town I am
the mayor of, and there are a lot of Catholics; they probably
wouldn't appreciate it. They threatened him with a $5,000 fine.
This is the kind of intimidation that we fear will occur in
this country if legislation like this goes forward, because it
never stops with one bill.
The first Hate Crimes Act was restricted because the people
who put it into effect didn't want the Federal Government to
get out of hand. Now, people come back later and say, well,
let's expand Federal powers this much more. Let's expand
Federal power. That is the mantra, and I think that is
something that should send a chill down every American's back.
Finally, I would like to say that I would have liked to
have had some victims here. We put them forward as witnesses,
people who have been in jurisdictions where there are hate
crimes laws and they have been used against those victims
themselves. They couldn't be here. They weren't accepted, but
if Mr. Hatch is true to his word that he may have more
hearings, I hope we can put them forward.
Thank you very much for your time.
Senator Specter. Mr. Knight, when you say victims, whom do
you have in mind, people who were the objects of hate crimes?
Mr. Knight. Yes; Pastor Ralph Ovadal, in Madison, WI. He
was rabbit-punched to the ground by a gay activist because he
was holding a sign, ``Repent.'' And the police said, well, that
is not a hate crime. After all, it wasn't committed against a
homosexual. It was only a Christian pastor who got knocked to
the ground.
Another Christian in Madison uttered an epithet. He got in
a shouting match with a homosexual activist. He was charged
with a hate crime. So, in effect, in Madison they are more
worried about words than actions, and that is how hate crimes
can be selectively enforced.
Senator Specter. So the victim you are talking about in the
Madison case is someone who was charged with a hate crime?
Mr. Knight. Well, two of them, one who was a victim of what
you might term a hate crime whose perpetrator was not charged
with such a hate crime because he didn't fall into one of the
specially protected groups. See, the reason I am bringing that
up if what concerns me most is selective enforcement, that we
start balkanizing America by creating some groups that have
higher levels of government protection than others.
We want to crack down on all crime. We think Mr. Shepard
and anyone who is targeted for their sexual orientation or any
characteristic ought to have the full power of the law behind
them. This bill only targets some groups and not others.
Senator Specter. Thank you, Mr. Knight.
[The prepared statement of Mr. Knight follows:]
Prepared Statement of Robert H. Knight
Thank you for allowing me to testify on behalf of the Family
Research Council and the more than 450,000 families we represent. We
deplore criminal violence in any form, and believe that acts of
violence against any person should be prosecuted to the full extent of
the law. We also believe that Americans should continue to work
diligently toward racial reconciliation.
However, we strongly oppose S. 622, the Hate Crimes Prevention Act
(HCPA), which is fundamentally flawed on numerous counts.
It sets up special classes of victims, who are afforded a higher
level of government protection than others victimized by similar
crimes, violating the concept of equal protection.
It would politicize criminal prosecutions, pressuring local
agencies to devote more of their limited resources to cases that the
federal government deems important.
It would add nothing to the prosecution of real crimes of violence,
vandalism, or property destruction, which are already covered by
statutes in every state, and which should be punished to the full
extent of the law.
It would vastly expand the power and jurisdiction of the federal
government to intervene in local law enforcement matters.
It would have a chilling effect on free speech by making unpopular
ideas a basis for harsher treatment in criminal proceedings. Over half
of the so-called ``hate crimes'' in the last Justice Department report
were categorized, by the department, as intimidation or simple assault,
which do not necessarily involve anything more than words. This makes
name-calling literally a federal case.
The definition of what constitutes a ``hate crime,'' while clear in
some instances, is very unclear in others.
In recent weeks we have seen even the mildest statement of
traditional sexual morality attacked as ``bigotry,'' ``hatred,'' ``gay-
bashing,'' ``intolerance,'' ``prejudice,'' and ``ignorance.''
Homosexual activists have even suggested that statements opposing
homosexuality amount to inciting violence. Incitement, as you know, is
not constitutionally protected speech. The aim seems to be to silence
all opposition to acceptance of homosexuality.
According to FBI statistics, ``hate crimes'' comprised less than 1/
10 of 1 percent of total violent and property crimes in 1997. In 1997,
police agencies in 48 states and the District of Columbia reported
``hate crimes'' at a rate of less than one case per law enforcement
agency, the vast majority of which are already covered under existing
federal law. The most frequently reported--nearly half--of those
incidents (or ``crimes'') not covered, involve verbal intimidation,
some of them no more than name-calling. But the backers of this Act
want to give the federal government massive new powers based on the
incidence of about a dozen incidents per state in a nation of 270
million citizens.
Leah Farish, an attorney specializing in civil rights issues,
points out that ``hate crime'' statistics vary widely. She notes,
Advocacy groups consistently overestimate--for their own
political purposes--the numbers of hate crime that are reported
by law enforcement.
One such organization, the National Institute Against
Prejudice and Violence, estimates the victims of what it terms
``ethnoviolence'' to be between 800,000 and one million
students annually. However, the FBI's own statistics on bias
incidents on school campuses show 555 in 1992 and 799 in 1996
[Source: DOJ 1992, p. 26; 1996, p. 27].
The New York City Gay and Lesbian Anti-Violence Project
claims that in 1996 there were 18 anti-gay incidents in
Cleveland, 176 in El Paso, and 96 in Chicago. However, FBI
statistics reported only 2 in Cleveland, 1 in El Paso, and 6 in
Chicago [Source: DOJ 1996, pp. 53, 68, 31].
At a press conference in January of 1998, Attorney General Janet
Reno said, ``I see more anti-bias training and conflict resolution
programs than ever before in our schools, in our communities, and I see
them working.'' Miss Reno also admitted that in most cases, local and
state agencies already have the authority to act on the problem--and
are doing so.
Still, she backs the HCPA, which grants the federal government far-
reaching new powers under the Interstate Commerce Clause. If someone
calls a homosexual a name while making use of the facilities of
interstate commerce, this bill could cover it. It is no wonder that the
federal government has grown by leaps and bounds in recent years when
the agents of centralized power employ such logic.
The Washington Post has warned of the dangers of focusing on
motivation rather than criminal acts. In a December 1, 1997, editorial,
The Post contended, ``[T]he proposal would be largely redundant of
state laws, getting federal prosecutors and agents involved in crimes
that have only limited interstate dimensions.'' The Post further noted
that ``[e]xpanding the federal ability to differentiate what are called
hate-crime acts from analogous acts committed for other reasons is a
mistake that Congress should refrain from making.''
The Post's views are echoed by such liberal commentators as William
Raspberry, Clarence Page, Michael Kelly and Nat Hentoff, as well as
conservative columnists Jeff Jacoby, Maggie Gallagher, Tony Snow, Paul
Craig Roberts and others.
Michael Kelly writes,
Of all the violence that has been done in this great
expansion of state authority over, and criminalization of, the
private behavior and thoughts of citizens, none is more serious
than that perpetuated by the hate-crime laws. Here, we are
truly in the realm of thought crimes. Hate-crime laws require
the state to treat one physical assault differently from the
way it would treat another--solely because the state has
decided that one motive for assaulting a person is more heinous
than another.
Clarence Page writes,
As an African-American, I belong to one of the groups
currently protected by hate crime legislation. Yet, hate crime
laws have not made me sleep better at night. I am more likely
to lay awake wondering how I can justify the noble intent of
such laws with the violence they inflict on the principles of
free speech and equal protection of the law.
In effect, the HCPA creates thought crime, because the criminal
acts themselves are already prosecutable. The Family Research Council
believes that maintaining good order through swift prosecution and
consistent, strict punishment of real crime is imperative. But justice
must be impartial, without favored classes of victims or specially
censured perpetrators. Creating special classes is inconsistent with
the Constitution's l4th Amendment guarantee of equal protection under
the law. Should the torture and murder of a child, for example, be
prosecuted less vigorously than a similar crime committed against a
homosexual?
Furthermore, some in the media and in government have begun to
interpret public opposition to normalizing homosexuality as ``hate.''
Homosexual activists have characterized even mild formulations of
opposing views as a proximate cause of violence. As football great
Reggie White and Senate Majority Leader Trent Lott learned last year,
expressing the biblical view that homosexual activity is sinful is
scarcely tolerated among some activists and media members, who equate
it with yelling ``fire'' in a crowded theater.
Last year's Truth in Love advertising campaign, in which former
homosexuals gave the good news that all people are loved by God and
have the hope of salvation and that homosexual behavior can be changed,
was blamed for Matthew Shepard's murder, despite zero evidence that the
perpetrators had ever seen the ads or been influenced by them in any
way. The San Francisco City Supervisors went on record as directly
blaming pro-family groups for Mr. Shepard's death. If an undiluted
message of love is considered grounds for charges of complicity in a
murder, then we have moved far down the road toward silencing anyone
who holds to traditional morality. In Canada, it is already a federal
offense to criticize homosexuality over the airwaves. The hate crimes
bill paves the way in America for similar throttling of opinion.
Homosexuals, like other citizens, should be protected to the full
extent of the law. But that is not what this bill is about. Rather, the
HCPA is the centerpiece of an effort to place homosexual behavior above
criticism by portraying those who practice it as victims in need of
special protections not afforded to other Americans. There simply is no
credible evidence that the police and courts are allowing criminals to
prey on homosexuals more than on any other citizens.
America has nearly 20,000 homicides each year. In 1997, three of
18,209 homicides were associated with ``sexual orientation--less than
two-hundredths of 1 percent of total homicides. And this does not count
the ``gay-on-gay'' killings that occur much more frequently.
Family Research Council unequivocally condemns all violent crime,
committed for any reason, including the fatal attack on Mr. Shepard in
Wyoming. We believe that Matthew Shepard is as important and deserving
of attention as any of the thousands of other Americans who are
murdered every year. Wyoming does not have a ``hate crimes'' law, yet
one of Mr. Shepard's killers had to cut a deal with state prosecutors
to escape the death penalty in exchange for two life terms without the
possibility of parole, while the other man charged faces the death
penalty in his upcoming trial.
There is evidence that ``hate crimes'' laws are not enforced
equitably. In Madison, Wisconsin, Ralph Ovadal, a pastor and founder of
Wisconsin Christians United, was physically attacked in 1996 while
protesting a pro-homosexuality photo display at a public school. Ovadal
and another man held two large signs--one read, ``Homosexuality Is
Wrong'' and the other, ``Homosexuals: Repent or Perish.'' Another man
grabbed one of the signs and hurried away. When Ovadal confronted the
man about taking the signs, he punched Ovadal, knocking him to the
ground. According to a medical report, the assault caused ``abrasions,
contusions and an injured ankle.'' The assailant was never charged with
a ``hate crime,'' despite the existence of a strong ``hate crime'' law
on the books of Madison, a liberal college town. The attacker
eventually bargained down a misdemeanor battery charge to an ordinance
violation, comparable to a traffic ticket.
In San Francisco in 1993, Pastor Chuck McIlhenny, whose home had
been firebombed in 1990, called the city hate crimes unit when
homosexual activists attacked a church. He was told that the Christians
had their point of view, and the homosexual activists had theirs, and
that they ``cancel each other out.'' Despite the destruction of
property, physical assault of parishioners, and the disruption of a
worship service, the police would not come to their aid. Apparently,
some hate-crime victims are more important than others.
Back to the national picture: If anti-bias programs are working,
and offenses are already being handled adequately at the local and
state levels, what real purpose does the Hate Crimes Prevention Act
serve? Miss Reno revealed it when she announced that the Justice and
Education Departments will distribute manuals to ``help teachers get
young people to understand that they should celebrate their differences
and not fight over them.'' With the emphasis on sexual ``orientation,''
this means that Jewish, Christian and Muslim children will be taught to
``celebrate'' homosexuality. President Clinton announced a new
nationwide school program as part of his support for the Hate Crimes
Prevention Act. This amounts to federal officials interfering in local
schools to ``re-educate'' children that their families' most deeply
held beliefs amount to hateful bigotry. Already, in schools across the
country, young children--even first graders--are being subjected to
homosexual propaganda in the names of ``tolerance'' education and AIDS
education.
If we are to continue as free men and women, able to form opinions
and speak our minds without fear, we cannot make attitudes or thoughts
the subject of federal intervention and criminal prosecution. Instead,
we should strive to ensure that the principle of ``equal justice under
law'' truly applies equally to all Americans. The ``Hate Crimes
Prevention Act of 1999'' may be well-intentioned, but its practical
outcome is a step toward thought control, expanded governmental power,
and tyranny masquerading as tolerance. We respectfully urge senators
not to support S. 622.
* * * * *
Robert H. Knight, a former Los Angeles Times news editor and
writer, is Senior Director for Cultural Studies at the Family Research
Council. He is the author of The Age of Consent: The Rise of Relativism
and the Corruption of Popular Culture (Dallas: Spence Publishing
Company, 1998). Mr. Knight also wrote and directed The Children of
Table 34, a documentary about Alfred C. Kinsey, and Coming Out of
Homosexuality: Stories of Hope and Healing, which documents the
testimonies of people who have left the homosexual lifestyle and been
restored to heterosexuality.
Senator Specter. We turn now to Prof. Burt Neuborne, New
York University Law School. Welcome, Professor Neuborne. We
look forward to your testimony.
STATEMENT OF BURT NEUBORNE
Mr. Neuborne. Thank you, Senator, and thank you for this
opportunity and the hearing and for the efforts of the members
of the committee to deal with this problem.
I am a professor of law at New York University and have
practiced constitutional law for the last 35 years. I would
like to speak this morning to two issues: one, my support for
broadening the existing 245 by repealing the Federal activities
requirement, which creates a technical problem to the
prosecution of many of these heinous offenses and which, in my
opinion, is not needed in order to provide Congress with the
appropriate power in this area, and, second, to support the
extended protection of Federal hate crimes to gays, women and
the disabled who are targets of this type of abuse.
If I could start for a moment by reminding us all about
what role hate crimes play in this society and the special role
that Federal hate crimes legislation can play, hate crime
singles out a type of behavior, which is an attack on an
individual solely because that individual belongs to a group,
and most of the time a group that has been the subject of
traditional prejudice in this society, singles that individual
out for special violence solely because of their group
activities.
History teaches us that when you link violence to that type
of hatred, it is the single most destabilizing threat to a
civilized democratic society. And so I think Congress and the
States have been quite correct in recognizing that hate crime
poses a very special challenge to an effort to create and to
maintain a civil society, and that it does three very important
things.
It may deter some of these crimes by enhancing the penalty
for them, and most importantly enhancing the likelihood of
apprehension by putting more resources into the law enforcement
aspect of it. It enhances their punishment because it
recognizes the enhanced harm and risk to the community that
this type of behavior entails, and it is a very important form
of public education, reinforcing both to the assailants and to
the victims and to the community at large that this type of
behavior cannot be tolerated in a civil society.
And it also recognizes the need for special protection that
members of despised groups can have. All of us run the risk of
random violence, and random violence is a terrible thing that
we should do all we can in this society to stamp out. Some
people in America bear an additional risk, not simply the risk
of random violence, but the risk that their membership in a
group will lead a twisted soul to single them out for violence
just because of their membership in the group. That is a
justification and a need for the special protection that these
laws provide.
Now, what is the special role of Federal hate crime
statutes? Senator Specter pointed out the traditional role, and
if I could, I would characterize that as a role of antagonistic
federalism. When you have local pockets of either bigotry or
nonconcern that fail to deal with these issues in an important
way, the Federal Government has historically stepped in and
provided a backstop that essentially trumped the failure of
local law enforcement agencies to take this seriously enough.
I am very pleased to say that I think that in the hate
crime area, the era of antagonistic federalism is drawing to an
end and that we are entering something much more promising and
much more hopeful, and that is an era of cooperative federalism
where both the Federal Government and the State and local
officials are committed, as Mr. Brown is clearly committed, to
enforcing these laws in the most vigorous way.
But that doesn't end the need for Federal action. If
anything, it enhances it; it makes it more effective. It is in
areas of cooperative federalism that the Federal Government's
work in the past in criminal law enforcement has always been
most effective. We shouldn't be saying let's not pass this
because they are not dealing with antagonistic local units
anymore. We should be applauding the fact that we are entering
an era where the combined resources of all three levels of
government can be brought to bear on this in a way that can
finally end this scourge once and for all.
There are four obvious practical things that cooperative
federalism allows. First, it allows the creation of joint
strike forces. We were able to move against the Mafia and
against the drug trade most effectively when we harnessed the
force of the Federal Government, the State governments and the
local governments working together in joint enforcement and
joint prosecution forces which effectively much of that
material.
We can deal with the problem of resource scarcity. As Mr.
Brown pointed out, many areas in this country simply cannot
carry out the type of complex prosecutions that are required in
these cases. And in his setting, they knew who did it. In
settings where they don't know who did it and you have to
assemble not just a prosecution strike force but an arrest and
apprehension strike force, that is entirely beyond the means of
most small American communities. So this bill is crucial to be
able to provide them with the resources in a cooperative way to
be able to do the job effectively.
Third, there are areas where there is a priority problem,
where there are other things that need doing. This is a
situation that would allow the Federal Government to step and
say to the States, I know you are not hostile to this, but we
have some resources for you that can allow you to do both, what
you think is your high priority item and this as well.
And, finally, this is an area where in those rare instances
where States prosecute and fail and where a second prosecution
appears necessary--this is an exception to the double jeopardy
aspect of prosecution. There is some controversiality about it,
but it is clearly the law and it allows a second bite at a
prosecution apple in an area where the Attorney General says
that it is necessary.
It is particularly important to remember that this law can
only be used if the Attorney General certifies that it is
needed.
Senator Specter. Professor Neuborne, could you summarize
the balance of your testimony?
Mr. Neuborne. Yes. The law can only be used if the Attorney
General certifies its necessity. There is a clear Commerce
Clause basis for it. The relationship between the Commerce
Clause and bigotry is clearly met. If you get to the bottom of
almost all prejudice, you find that what is there is a fear and
a desire to protect status and a desire to intimidate
newcomers, whether it is violence against Jews, whether it is
violence against blacks. When you get to the bottom of it, you
cannot have a free market in goods and services if people can
be beaten because of fear that they are going to become
economic competitors.
This statute is clearly within Congress' power and I urge
that you pass it as soon as possible.
Senator Specter. Thank you very much, Professor Neuborne.
[The prepared statement of Mr. Neuborne follows:]
Prepared Statement of Burt Neuborne
Mr. Chairman and Members of the Committee: My name is Burt
Neuborne. I am the John Norton Pomeroy Professor of Law at New York
University School of Law, where I have taught Constitutional Law,
Evidence and Federal Courts for twenty-five years. I have spent much of
my career in the active defense of rights guaranteed by the United
States Constitution. I served in various capacities on the legal staff
of the American Civil Liberties Union for eleven years, most recently
as National Legal Director from 1982-86. From 1988-92, I was a member
of the New York City Human Rights Commission. I currently serve as
Legal Director of the Brennan Center for Justice at NYU, a partnership
between and among the family of Justice William Brennan, Jr., many of
the law clerks who served Justice Brennan during his historic tenure on
the Supreme Court, and the faculty of NYU School of Law, dedicated to
honoring Justice Brennan's memory by seeking to protect the rights of
the weakest members of society. I appear this morning on behalf of the
NOW Legal Defense and Education Fund, the nation's oldest legal
advocacy organization committed to protecting and advancing women's
rights.
Thank you for this opportunity to express my support for the
proposed amendments to 18 U.S.C. 245 that: (1) delete the existing
requirement that victims of a hate crime have been engaged in one of
six narrowly defined ``federally protected activities'' in order to
receive the protection of the federal hate crimes statute; and (2)
extend the protection of the federal hate crimes statute to victims who
have been singled out for violent assault because of their sexual
orientation, gender, or disability.
The artificial requirement in the current version of sec. 245 that
a hate crimes victim must have been engaged in ``federally protected
activity'' in order to qualify for federal hate crimes protection
creates an unnecessary obstacle to efforts by local, state, and federal
law enforcement agents to provide maximum protection against hate
crimes that tear at the fabric of a civilized society. In my opinion,
Congress possesses clear legislative authority to prohibit hate crimes
generically, regardless of the nature of the victim's activities at the
time of the crime.
Moreover, the addition of sexual orientation, gender, and
disability as protected categories responds to the sad reality that
members of those groups remain at greater risk of violent assault
because of their membership in a target group that attracts the hate of
twisted individuals whose group hatred drives them to individual
violence.
I propose to begin with a brief overview of the role of federal
hate crime legislation, especially in an era when many state and local
law enforcement agencies appear to share Congress's concerns. I will
then discuss Congress's power to enact hate crime legislation. I will
conclude with a discussion of the wisdom of eliminating, the
``federally protected activity'' requirement, and expanding the
protected categories to include sexual orientation, gender, and
disability.
i. a brief overview of the role of federal hate crime legislation in an
era of cooperative federalism
Legislation, no matter what the level of government, outlawing
violent hate crime is designed to achieve three ends. First, by
increasing the penalty associated with a violent hate crime, the
criminal law seeks to deter twisted individuals from escalating their
hatred of particular groups into violent behavior directed at members
of those groups. By targeting violence motivated by hate, and
subjecting it to more intense criminal penalties and a greater
likelihood of apprehension and prosecution, the level of deterrence is
increased.
Second, by imposing heavier penalties on violence generated by
group hate than on random violence, the criminal law recognizes both a
higher level of moral revulsion toward violence caused by group hatred,
and the increased damage to the fabric of civilized society associated
with such violent bigotry. History tells us that the combination of
irrational hatred of groups with violence directed at members of those
groups is the single most destabilizing event in the erosion of
democratic societies.
Finally, by singling out individual violence caused by group
hatred, and subjecting it to more intense criminal penalties, and a
higher likelihood of arrest and prosecution, the criminal law serves
its third function--that of educator. A critical function of the
criminal law is to identify and reinforce the crucial moral judgments
of the community. Hate crime legislation educates the general
community, prospective assailants, and the victim communities, by
asserting in the strongest terms known to our culture that hate crimes
are profoundly abhorrent.
In the years since numerous state and local governments have
enacted variants of hate crime legislation, the statutes have fulfilled
all three purposes. Law enforcement officials are virtually unanimous
in supporting the increased deterrence, more precise moral
condemnation, and more effective public education made possible by
singling out individual violence caused by group hatred for special
criminal consideration.
If, as is the case, many state and local communities have enacted
hated crimes legislation and, even in the absence of hate crimes
legislation, appear to be committed to prosecuting hate crimes in an
even-handed manner, what role does federal hate crimes legislation play
in a regime of cooperative federalism? It is true, of course, that much
of our federal criminal legislation in the civil rights area dates from
an unfortunate era in our history when certain state and local
officials were highly unlikely to invoke the criminal law against
criminal behavior directed against despised minorities. In the absence
of federal legislation, members of victim groups often lacked
protection from criminal predators precisely because local law
enforcement authorities were subject to the same bigotry as the
perpetrators themselves. To the extent that pockets of bigotry remain
ensconced in certain localities today, state or local law enforcement
may, occasionally, be paralyzed by the same hatred that generated the
hate crime. In those settings, federal hate crime legislation acts as a
crucial backstop insuring that effective criminal protection is
available to all, regardless of local prejudice.
It would, however, be grossly unfair to local law enforcement
officials to suggest that widespread reluctance exists in today's
America to prosecute hate crimes. In fact, in my experience, while
pockets of bigotry persist, state and local law enforcement officials
generally share the revulsion to hate crime felt by every member of the
Senate. What, then, is the role of federal hate crime legislation in
such a regime of cooperative federalism? Unlike the role of federal
legislation during an era of antagonistic federalism, when federal
power is unleashed to compel local government to respect national
values, today's federal hate crime statutes should be designed to
reinforce the states and localities in carrying out a joint mission to
prevent hatred directed at target groups from escalating into
individual violence. Thus, for example, when inadequate local resources
make it difficult, if not impossible, to deploy the substantial
resources needed to investigate, arrest and prosecute a serious hate
crime, the existence of a back-stop federal statute permits federal law
enforcement authorities to reinforce state and local officials by
offering the assistance of the FBI, or the resources of the United
States Attorneys offices, to the beleaguered local officials. In
settings where a pattern of hate crime is present, back-stop federal
legislation makes possible the formation of Joint Strike Forces made up
of local, state and federal officials designed to place maximum
pressure on criminal offenders. In settings where state or local law
fails to provide adequate criminal penalties, or where flaws in the
local legal position render prosecution difficult, the existence of
federal back-up legislation provides a valuable, perhaps crucial,
additional law enforcement tool. Finally, in those rare settings where
state prosecution has failed because of inadequate resources, or
questionable effectiveness, the existence of back-up federal
legislation provides the option of prosecution in a federal forum on
the federal charges without violating the double jeopardy clause.
In fact, when one views the sweep of federal criminal
jurisprudence, federal criminal statutes work best, not in those
unfortunate settings of antagonistic federalism, where the federal
government is attempting to trump a local judgment, but in the context
of cooperative federalism, where both the state and federal governments
deploy their combined resources to achieve a common goal. It is
precisely because we are in an era of cooperative federalism with
respect to hate crime that it is such a good idea to fine-tune the
federal backstop to assure that the full resources of every level of
government can be brought to bear on the scourge of violence engendered
by group hatred.
The recent federal criminal legislation outlawing arson directed at
churches is an excellent example of cooperative federalism at its best.
Every level of government abhors the idea of arson directed at a house
of worship. By enacting federal legislation in the area, Congress
authorized federal officials to join in an inter-governmental effort to
end church bombings once and for all. Every law enforcement official in
the area, regardless of the level of the governmental employer,
applauds the partnership made possible by the Congressional
legislation, which has permitted the full resources of the nation to be
directed to the elimination of a criminal threat to one of the most
basic freedoms--freedom of worship. The same cooperative model is made
possible by sec. 245 when criminals threaten the enjoyment of the right
to be free from violence motivated by the race, color, religion,
national origin, sexual orientation, gender, or disability of the
victim.
ii. congress possesses ample power to enact legislation making it a
federal crime to inflict violence on a victim because of the victim's
membership in a despised group
Congress possesses ample power to enact a federal hate crime
statute. In an excess of caution, the current version of sec. 245
limits federal hate crimes to settings in which the victim was engaged
in one of six ``federally protected activities'' But such a narrow
formulation creates a technical loophole into which an important
prosecution can disappear. For example, is walking on the sidewalk free
from harassment because of race participating in a federally protected
activity (``freedom to travel'')? In fact, Congress's power in this
area stems from two sources, neither of which, depend upon the victim's
precise behavior at the time of the offense.
Most traditionally, Congress possesses power under the Commerce
Clause to regulate behavior that has a substantial and harmful effect
on interstate commerce. Eg. Heart of Atlanta Motel, Inc. v. United
States, 379 U.S. 241, 258 (1964).\1\ Of course, in settings where the
regulated behavior does not obviously impact on interstate commerce,
Congress is obliged to make specific findings explaining the link
between the regulated behavior and interstate commerce. In the absence
of such explicit Congressional findings, the Supreme Court has
invalidated Congressional legislation when the regulated behavior
(possessing firearms in school) did not appear, on its face, to
exercise a substantial impact on interstate commerce. United States v.
Lopez, 514 U.S. 549 (1995). Where, however, as here, the regulated
behavior has an obvious link to interstate commerce, the decision
whether to regulate remains solely within the discretion of Congress.
---------------------------------------------------------------------------
\1\ See generally Wickard v. Filburn, 317 U.S. 111, 125 (1942);
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 36-37 (1937).
---------------------------------------------------------------------------
As to the existing categories of victim currently listed in sec.
245, it is clear beyond doubt that protecting their members from
violence motivated by group hatred has a profound impact on interstate
commerce. A nation committed to a national free market in goods and
services cannot tolerate hatred-motivated violence that targets
particular groups and impedes their ability to function in the
workforce. In Edwards v. California, 314 U.S. 160 (1941), the Supreme
Court recognized that the Commerce Clause assures the right of
migration in search of a better life. Violence directed to members of a
despised group threatens the Commerce Clause's guaranty of free
migration in two ways. Violence directed against hated newcomers is
often designed to impede the migration of groups seeking a better life,
precisely because their migration threatens the economic interests of
entrenched residents. Conversely, violence directed at hated minorities
is often designed to force them to move, or to leave the workforce,
precisely because their presence is a threat to the economic status of
the entrenched majority. Given the historic link between violence
directed against hated groups and economic status, Congress is
undoubtedly well within its power in recognizing such hatred-motivated
violence as a threat to the free market in goods and services that is
the fundamental goal of the Commerce Clause. Nothing in Lopez
interferes with Congress's important responsibility under the Commerce
Clause to preserve the free flow of goods and services by acting to
regulate private criminal behavior that threatens to single out members
of hated groups and to remove them from the free market in labor by
subjecting them to violence based on their membership in a hated group.
As to the new categories of victims that are proposed to be added
to sec. 245--sexual orientation, gender, and disability--Congress's
power is even more clearly present, since an element of the crime
requires proof of a Commerce Clause nexus. The nexus provision is
similar to the link required in the prosecution of many federal crimes,
such as unlawful possession of weapons, drugs, and gambling material.
Indeed, if the provisions of the new version of sec. 245 fail to pass
muster under the Commerce Clause, most of the federal criminal code is
probably unconstitutional. Only an ideologue would attempt to stretch
Lopez into a general repeal of virtually all federal crimes.\2\
---------------------------------------------------------------------------
\2\ The recent divided (7-4) en banc decision of Fourth Circuit in
Brzonkala v. Virginia Polytechnic and State University invalidating the
Violence Against Women Act does not affect the power of Congress to
enact the amended version of sec. 245. Unlike the Violence Against
Women Act, the current legislation requires proof of an interstate
commerce nexus as an element of the offense. I do not believe that a
serious argument exists that Congress lacks the power to regulate
conduct, when the conduct must be shown to affect interstate commerce.
---------------------------------------------------------------------------
Second, although it is not necessary to discuss the issue at length
because power under the Commerce Clause clearly exists, I believe that
Congress possesses power under section 5 of the 14th Amendment to enact
legislation designed to deter private persons from preventing members
of persecuted groups from enjoying the equal status guaranteed by
section 1 of the 14th Amendment. It is, of course true, that section 1
talks in term of protection against ``state action''. But section 5's
authorization is broader than section 1's self-executing scope.
Otherwise, section 5 would be a mere redundancy. The Supreme Court has
never been required to pass on the ultimate scope of Congress's power
under section 5, since most exercises of Congress's power are also
supported by the Commerce Clause. I believe that, at a minimum, section
5 authorizes Congress to identify violent behavior that would make it
impossible for the beneficiaries of section 1 to enjoy its benefits,
and to take necessary steps to prevent the violent behavior. In any
event, given the clear Commerce Clause power, I believe that no serious
question of Congressional power is raised by the proposed amendments to
sec. 245.\3\
---------------------------------------------------------------------------
\3\ Moreover, I believe that the Fourth Circuit majority seriously
misread Lopez in striking down the Violence Against Women Act. I note
that eleven district courts have unanimously agreed with the four
Fourth Circuit dissenters in upholding the Act's constitutionality.
---------------------------------------------------------------------------
iii. no serious questions of policy argue against the proposed
expansion of the federal hate crimes statute
The policy arguments leveled against the proposed amendments to
sec. 245 do not appear persuasive.
As an initial matter, no serious First Amendment issue is raised by
the proposed amendments. Wisconsin v. Mitchell, 508 U.S. 476 (1993),
makes it clear that the First Amendment does not protect violence
merely because it is motivated by hatred. No principle of First
Amendment law shields a violent offender against increased punishment
because the crime was motivated by group hatred. In proving that group
hatred motivated the attack, I believe that a trial court should be
sensitive to issues of relevance in deciding whether to admit evidence
concerning a defendant's First Amendment activities. In the brief that
I authored in Wisconsin v. Mitchell, I urged the Supreme Court to
recognize a First Amendment evidentiary privilege in hate crimes cases.
The Court, instead, has relied upon a rule of relevance, and the good
sense of the trial courts. In the years since Wisconsin v. Mitchell,
the trial courts appear to have developed rules of relevance in hate
crime cases that do not appear to pose serious First Amendment issues.
There are, of course, occasional evidentiary mistakes, but, by and
large, I am not persuaded that Congress can forge a better evidentiary
standard that the case-by-case work of the trial courts.
Nor would the proposed amendments federalize large categories of
state criminal practice. The amendments include an important provision
requiring certification by the Attorney General or her designee that
``a prosecution by the United States is in the public interest and
necessary to secure substantial justice.'' Such a provision assures
that the back-stop federal legislation will play its appropriate role
in a regime of cooperative federalism. The statute permits federal law
enforcement resources to be immediately available at the local level,
but assures that the actual prosecution will be the responsibility of
state and local officials unless, after full consultation, the Attorney
General believes that the back-stop federal statute is necessary. Far
from posing a threat of federalization, the proposed amendments
strengthen the ability of state and local authorities to deal
effectively with hate crimes by making federal resources available to
them, while holding federal prosecutions in reserve for those few
situations where ``substantial justice'' requires them.
Moreover, expansion of the protected categories to sexual
orientation, gender and disability make eminently good sense. The ugly
spectacle of gays being beaten because of homophobia must sicken any
civilized human being. Given the lack of protection for gays in many
communities, providing federal protection under the federal statute
against violence motivated by homophobia is not merely a good idea--it
is required by basic human decency.
Although attacks against the disabled are less numerous, the legacy
of the Nazi horror make clear that twisted souls can and do view
disabled people as sub-human, and, therefore, fair game for violent
abuse. Providing the disabled with an additional federal shield against
violent abuse, to be used to assist local officials in providing
protection, and as a back-stop when the Attorney General certifies that
``substantial justice'' requires its use, appears to be a welcome step
toward protection of an extremely vulnerable minority, with virtually
no costs.
Finally, a degree of federal criminal protection against gender-
motivated violence is long overdue. We know that a portion of the
epidemic of violence aimed at women is traceable to hatred of women as
a group. In many settings, state and local officials have also
recognized the need to protect women against hate crime. In those
settings, the amended federal statute will permit local officials to
draw on federal law enforcement resources, and will create a back-stop
federal statute for use in those settings where the Attorney General
certifies its necessity. In many settings, however, local officials
have not yet realized that violence against women is not merely a
matter of personal aberration, but is often the result of a deep hatred
of women as a group. In those settings, the federal statute will
provide an invaluable protection for women who are targets of gender-
motivated violence.
It is occasionally argued that recognition of a federal hate crime
directed at gender motivated violence would sweep all assaults against
women into the federal arena. But such an argument ignores the
experience of the 22 states that have enacted gender-based hate crime
statutes. In those states, every rape is not prosecuted as a hate
crime. In order to evolve from an assault involving a woman to a hate
crime, it is necessary to develop significant evidence that the
defendant was motivated by hatred of women as a group. Where such
evidence does not exist, assaults do not become hate crimes. Where,
however, substantial evidence exists that a violent assault against a
woman was caused by hatred of women as a group, it is crucial to deploy
the criminal law in an effort to deter such violent behavior by
singling it out for special attention. It would, I believe, be a
callous act of indifference to refuse to grant women the extra
protection that a federal hate crime statute might provide when we know
that the mere existence of a federal statute (with an enhanced penalty
and the greater likelihood of arrest and prosecution) might deter an
act of violence by a twisted soul whose hatred of all women leads him
to contemplate violence.
Senator Specter. We turn now to our final witness,
Professor Amar, of the Yale Law School. A very brief personal
note. Over the entry of the Yale Law School, there are two
stone etchings, two classrooms. In one depiction, there is a
professor standing, gesturing, and obviously very vocal, and
all the students are sleeping. And in the other stone etching,
there is a professor who has his hand on his head, obviously
very thoughtful, and all the students are up and very animated.
Before you start your testimony, Professor Amar, which
category are you in? [Laughter.]
STATEMENT OF AKHIL REED AMAR
Mr. Amar. Can I take the fifth, Senator? [Laughter.]
Senator Specter. You can, but there is another jurisdiction
to prosecute you, I understand.
Mr. Amar. Thank you very much, Senator, for allowing me to
speak. I have obviously submitted some written testimony. I
will just try to summarize very quickly.
Senator Specter. We would appreciate that. Your full
statement will be made a part of the record.
Mr. Amar. I admire the symbolic aims of this statute, which
are to affirm the equality of all American citizens regardless
of race or religious or sexual orientation or gender or
disability. I admire the biggest, I think, substantive idea of
the statute, which is to create a State-Federal partnership,
what my friend Burt Neuborne called cooperative federalism.
I have some specific questions and concerns about some of
the details and the strategy of the bill, and I would just
invite the committee to think about whether there might be ways
of accomplishing those goals even better than the current
version. And this is, I think, very much in the spirit of what
Chairman Hatch said in his opening remarks. So let me just
identify the questions and concerns.
First is a data question. There are at least three
different ways of having an antihate crime strategy. One is
vigorous, even-handed enforcement of ordinary rules of assault,
murder, rape, and so on. An advantage of that is it doesn't
generate any backlash about special rights for special victims
and disadvantages that may not symbolically affirm the real
importance to the larger community of certain disadvantaged
groups.
A second strategy is sentence enhancement, where you have
ordinary laws of murder, rape and robbery, but then at the
sentencing stage we take into account bigotry and say that
makes the crime much more reprehensible, creates more harm, and
so we sanction it more severely.
A third is an explicit hate crime statute where that
bigotry isn't a specific element of the offense. That has got
the advantage of heightened symbolism, but possibly the
disadvantage of having to prove bigotry beyond reasonable doubt
to a jury, which you don't have in the sentence enhancement
model.
So you have at least three different models at the State
level, and one data question to ask is what is the experience
of the States with those three different approaches. I am not
sure that we have analyzed that data in order to figure out
what strategy actually will work the best.
Furthermore, in addition to figuring out what strategy
might work the best at the State level, if we were trying to
come up with a model statute for States to adopt, I think it is
relevant to see where the States are failing to identify the
precise size and shape of possible Federal intervention, given
that many thoughtful citizens and Senators have, in general, a
preference for decentralized solutions where possible.
And, again, an analysis of this data might be very helpful.
If there really are systematic areas where States are falling
down, we could have an even broader consensus, I would hope, in
support of Federal crimes and have 95 Senators rather than
maybe 60 Senators on board, and that is a more emphatic
symbolic statement about what we as Americans hold in common--
the equality of all, regardless of race, religion, sexual
orientation, sex, disability, and so on.
So one set of questions is how we analyze the data at the
State level, and a concern that if we rush in too quickly
sometimes we can make a problem worse. Some people think that
that might have been the case with the crack/powder distinction
and what this Congress did a decade ago.
Then there are some constitutional concerns, and they are
created by court doctrine. I don't want to suggest that courts
would clearly invalidate this. I just want to suggest that
there are some risks, and the risk, even if some judges vote
against it, not a majority even, is it weakens some of the
symbolic force of a statute.
One set of problems is created by the recent Supreme Court
decision in City of Boerne, invalidating a law that this Senate
passed, 97 to 3, the Religious Freedom Restoration Act, that
signals a narrower understanding of Congress' power under the
Reconstruction amendments. I myself am a critic of the Boerne
decision. I think it wrongly restricted the broad powers that
this Congress is supposed to have under the Reconstruction
amendments. But you need to take that into account, I think.
That betokens at least a possible concern about the
religion language in that prong of the statute that doesn't
have a Commerce Clause trigger which goes beyond cases like
Jones v. Alfred Mayer, and I don't know whether the Court is
going to go beyond that.
As to the Commerce Clause, of course, there is the Lopez
case, invalidating another recent statute that this Congress
passed. Senator Kennedy's bill, S. 622, has a Commerce Clause
trigger, and so I think it is much stronger than the statute in
Lopez. But I think there are still some possible concerns about
the precise nexus between interstate commerce and what the
statute targets.
Some possible fairness concerns, double jeopardy concerns.
If the State and Federal governments really are working
cooperatively and as a team, and if the States prosecute and
there is an acquittal, some possible fairness concerns if the
Federal Government, which were teammates in the whole process,
then comes and tries to whack the defendant a second time.
So, in a nutshell, my suggestions are the following as
possible additions or alternatives. Commission a careful
analysis of the existing hate crime data. Consider adoption of
a model State statute that States should be encouraged to
adopt, and you could even have some pilot programs that States
would be involved in to see which ones work better.
Think about a Federal civil right of action, in addition to
or instead of the Federal criminal right of action. That might
solve some of the double jeopardy fairness concerns, and even
commerce concerns. Make more explicit findings about the link
to interstate commerce. Invoke the Citizenship Clause of the
14th amendment, as well as the 13th amendment. What you are
trying to do is affirm the equal citizenship of all citizens.
And here I conclude. I have even suggested some ways of
strengthening the symbolic language of the statute, which is
about the Federal role in affirming the equal citizenship of
all. So distinctions based on birth, like sex or sexual
orientation or race, should play no role in American
citizenship.
Thank you, Senator.
[The prepared statement of Mr. Amar follows:]
Prepared Statement of Akhil Reed Amar
My name is Akhil Reed Amar. I hold the Southmayd Chair at Yale Law
School, where I teach and write on constitutional law, federal
jurisdiction, and criminal procedure. I am grateful to be here to
discuss how this Congress can help prevent hate crimes, and thereby
affirm the equality of all Americans, regardless of race, religion,
sex, sexual orientation, or disability. In analyzing this important
topic--which implicates myriad issues of both constitutional law and
public policy--I have organized my thoughts around Senator Kennedy's
Bill, S. 622. I admire the goals of the Bill, and I share its vision of
equality. I do, however, have some questions and concerns about some of
its specific provisions, and about its general strategy. Also, I will
try to identify some other legislative strategies that this Committee
might consider to better implement the aims of the Bill.
I admire the aims of the Bill. The Bill seeks to prevent hate
crimes when possible and to punish them when they nonetheless occur.
The Bill tries to achieve these aims via a close state-federal
``partnership'' in which federal jurisdiction ``supplements'' state
prosecutions, and the federal government offers ``assistance to
States.'' (Sec. 2, paras. 10, 11.) The Bill appropriately acknowledges
that states ``are now and will continue to be responsible for the
prosecuting the overwhelming majority of violent crimes in the United
States, including violent crimes motivated by bias.'' (Sec. 2, para. 9,
emphasis added.) Symbolically, I understand the Bill as an effort to
stand with the victims of hate crime and against those who perpetrate
or pooh-pooh these crimes. I see the Bill as a noble effort to affirm
the national government's commitment to equality, and to express its
emphatic disapproval of those who harm others simply because of who the
victims are--because, that is, of the victims' race, religion, sex,
orientation, or disability.
Given that most of the fight against hate crimes will be waged by
states, an important part of the Bill is its symbolism, placing the
federal government firmly on record against those who, for example,
kill homosexuals or Jews and those who apologize for such unspeakable
conduct by blaming the victims--``they asked for it.'' And
substantively, the most important part of the Bill is the federal
assistance it promises to states; the federal crimes it creates are
likely to be less important substantively because--as the Bill itself
admits--the vast majority of prosecutions will continue to be at the
state level. With this understanding of the Bill, I now turn to my
questions and concerns.
i. the data question
Substantively, what particular strategy is most likely to work in
actually preventing violent hate crimes? One strategy is simply to
vigorously prosecute hate criminals using ordinary laws of murder,
assault, and so on. This is indeed an anti-hate crimes strategy; it
stands against a look-the-other way world where prosecutors and judges
do not take hate crime as seriously as other crime. In a look-the-
other-way world, bigotry becomes a kind of excuse or mitigation: a
``queer-basher'' is treated more leniently than other thugs because
``he couldn't help being repulsed'' or because ``the victim asked for
it by flaunting his identity.'' A second strategy is to use ordinary
laws of murder, assault, and so on, but to treat bigotry as a
sentencing enhancer justifying more severe punishment because the
bigotry in effect compounds the crime and makes it more reprehensible.
A third strategy is to enact laws specifying bigotry as a specific
offense element that must be charged in the indictment and proved
beyond reasonable doubt to the jury.
Which of these strategies is most likely to be effective? This
question implicates federalism--one obvious way to try to answer this
question would be to analyze the actual practices of different states
that have pursued different strategies. I believe that state data have
been collected pursuant to the Hate Crime Statistics Act. Has this data
been systematically analyzed? I have not yet seen any detailed
analysis, and, in keeping with Chairman Hatch's remarks, I think
careful analysis would be useful. Suppose the data suggests that
sentencing enhancement actually works better at preventing hate crimes
than specific new hate crime offenses (perhaps because bigotry need not
be formally charged and proved)? Suppose simple vigorous and even-
handed enforcement worked best of all (perhaps because it avoids the
backlash generated by the perception of ``special rights'' for special
classes)?
Data collection is desirable for a second reason. Analyzing state
data will not only help each individual state figure out how best to
combat hate crimes, it will also help illuminate whether and to what
extent there is a need to add a new federal crime to the books. For
example, suppose the data suggest that the real problem is not state
bigotry or indifference but rather inadequate resources to deal with
certain special problems raised by hate crimes (say, because the
average hate criminal has plotted his crime with more care and is
harder to catch than the average nonhate criminal). In this case, the
best solution might be increased federal assistance rather than
enhanced federal jurisdiction that might reduce the sense of
accountability of local authorities.
In addition, many Senators and citizens of good faith ordinarily
start with a presumption in favor of state as opposed to federal
solutions. Such Americans could well be brought to support new federal
crimes if the data actually shows that states are not doing their job.
Data here could thus help forge a broader consensus than might
currently exist. Part of the goal of the Bill, I think, should be to
muster an overwhelming majority of Senators to demonstrate to those who
hate just how wide and deep is the consensus against them.
One objection to data collection is that people are dying now, and
this Congress needs to do something. But surely, this Congress needs to
do the right thing, and new federal crimes are not always the best
answer. A decade ago, inner cities were being ravaged by crack, and
this Congress decided it had to do something. It dramatically increased
the federal penalty for crack compared to powder cocaine. Many leaders
of the Black Caucus supported this effort to do something to save black
inner city children from the crack plague. Today, many of these same
leaders now think that this Congressional approach was mistaken-and
indeed, may have made racial problems worse. Another objection to data
collection is that--substantive efficacy aside--America needs a strong
symbolic statement from Congress now, and this symbolic statement can't
wait. I agree, and would propose that the Committee consider an even
stronger symbolic statement than S. 622 currently contains. In
addition, a strong commitment of federal assistance today will put the
federal government's money where its mouth is, and thus send a very
strong signal.
ii. constitutional concerns
The final reason for care before defining new federal crimes is
that such new crimes might face tough sledding in the federal courts.
If these crimes were to be invalidated by courts, it would be a big
symbolic defeat for the equality vision-even if the grounds for
invalidation were rooted in ``technical'' federalism objections. Even
if these new crimes survived court challenge, they might not do so
easily and unanimously. The very fact of judicial dissent--or of a
large bloc Congressional votes against the Bill itself--might weaken
the symbolic strength of the Bill, as compared with a Bill that
virtually all Senators and judges could easily accept as a strong
affirmation of our common ground as Americans. This takes me to my next
set of questions involving judicial doctrines of federalism and general
constitutional concerns.
A. The Boerne problem
Section 4 creates a new federal crime for violent hate crimes based
on ``race, color, religion, or national origin.'' This part of Section
4(c)(1) has no explicit requirement that the crime be linked to
interstate commerce, and it regulates criminal activity that is not
itself commercial. Under the Supreme Court's 1995 Lopez \1\ decision,
this prong of Section 4 will be hard to defend in court under
Congress's commerce clause power. The most sturdy argument to uphold
this prong in court derives from Congress's power under Section 2 of
the Thirteenth Amendment. Section 2, paragraph 8 of S. 622 pointedly
invokes this authority, by finding that ``violence motivated by bias
that is a relic of slavery can constitute badges and incidents of
slavery.'' I applaud Congress's explicit effort to invoke the
Thirteenth Amendment. Indeed, in an article on hate crime that I
published eight years ago in the Harvard Law Review, I suggested that
drafters of anti-hate crimes statutes should ``state explicitly that
the ordinance is designed to implement the Thirteenth Amendment by
eliminating various badges and incidents of slavery and caste-based
subordination.\2\
---------------------------------------------------------------------------
\1\ United States v. Lopez, 115 S.Ct. 1624 (1995) (striking down a
federal criminal offense created by the Gun-Free Schools Act of 1990 as
beyond the proper reach of Congressional power under the commerce
clause).
\2\ Akhil Reed Amar, The Case of the Missing Amendments: R.A.V. v.
City of St. Paul, 106 Harv. L. Rev. 124, 160 n. 187 (199 1).
---------------------------------------------------------------------------
But there are problems. First, as that article mentioned,\3\ it
might be difficult to bring religious as opposed to racial bigotry
under the canopy of the Thirteenth Amendment. In the landmark 1968 case
of Jones v. Alfred Mayer, the Supreme Court upheld a law regulating
private race discrimination under the Thirteenth Amendment but
pointedly noted that. ``the statute in this case deals only with racial
discrimination and does not address itself to discrimination on grounds
of religion or national origin.'' \4\ It gets worse. Two years ago, the
Supreme Court decided the City of Boerne v. Flores \5\ case, and
invalidated the Religious Freedom Restoration Act, which this Senate
passed by a 97 to 3 vote in 1993. Boerne offered a narrow reading--in
my view, an inappropriately narrow reading--of this Congress's power
under Section 5 of the Fourteenth Amendment. Boerne said that under
Section 5 of the Fourteenth Amendment, Congress could only ``enforce''
rights that judges would recognize under Section 1 of the Fourteenth
Amendment. Although the Court said very little about the Thirteenth
Amendment, and not a word about the Jones case, the logic of Boerne is
ominous. If Section 5 of the Fourteenth is to be strictly construed,
why not Section 2 of the Thirteenth, which is written in almost
identical language? Although Boerne did not address this issue in
detail, it does suggest that the current Court may be disinclined to
extend Jones even an inch more. (It further suggests that this Court is
not particularly deferential to this Congress, a point confirmed by the
very great number of recent Congressional statutes that the Court has
invalidated in the last decade.)
---------------------------------------------------------------------------
\3\ See id. at 159.
\4\ Jones v. Alfred H. Mayer Co., 392 U.S. 409,413 (1968).
\5\ 117 S. Ct. 2157 (1997).
---------------------------------------------------------------------------
I am a critic of the Court's decision in Boerne, and indeed have
assailed it in print (in the February, 1999 issue of the Harvard Law
Review).\6\ I think the Boerne Court clearly misconstrued the letter
and spirit of the Reconstruction Amendments, which were designed to
give this body--the Congress of the United States--broad power to
protect the rights of all Americans to liberty and equality. I further
think that this Congress should have power to reach certain private
action under the first sentence of the Fourteenth Amendment--the
citizenship clause, which has no state action requirement. But the
current Court seems to think otherwise. Thus it is unclear whether the
religion language of proposed section (c)(1) would pass judicial
muster.
---------------------------------------------------------------------------
\6\ See Akhil Reed Amar, Intratextualism, 112 Harv. L. Rev. 747,
821-27 (1999).
---------------------------------------------------------------------------
B. The Lopez problem
Perhaps in anticipation of this problem, Section (c)(2) follows a
different strategy, defining a new federal hate crime involving both
violence on the basis of ``religion, gender, sexual orientation, or
disability'' and also a link to interstate or foreign commerce. The
idea here is that even if the Thirteenth and Fourteenth Amendments are
not enough to uphold federal power, the commerce clause is broad
enough. (I also note that ``religion'' appears in both (c)(1) and
(c)(2).)
But once again, there are problems. Unlike the statute struck down
by the 1995 Lopez case, Section (c)(2) has an explicit commerce
trigger. But it seeks to regulate criminal conduct that is not itself
particularly commercial. And the Lopez decision signals a stricter
understanding of the commerce clause than was once dominant. How much
stricter is uncertain. Lopez was a 5-4 case, and Justices Kennedy and
O'Connor seemed to suggest in a concurrence that careful Congressional
findings about impact on interstate commerce could make a
difference.\7\ At this point, S. 622 makes some findings about
commercial impact (Sec. 2, paras. 4-7), but in rather conclusory terms,
a court might think. Is there specific data about how often bias
targets actually move across state lines to avoid their stalkers, or
how often these stalkers actually cross state lines in search of their
prey?
---------------------------------------------------------------------------
\7\ United States v. Lopez, 115 S.Ct. 1624, 1642 (1995) (Kennedy,
J. concurring, joined by O'Connor, J.) (calling for ``a stronger
connection or identification with commercial concerns'') (emphasis
added).
---------------------------------------------------------------------------
But the more Congress tries to stress that it is really concerned
about interstate commerce the more the symbolic message of an anti-hate
Bill is blunted. Is this really a Bill about using a telephone or
travelling on a highway, or is it instead simply about hate?
The combination of Lopez and Boerne is more powerful than each case
in isolation. In tandem, these two cases are like two claws of a pincer
squeezing Congressional power--and anyone who doubts the strength of
this one-two combination should consult a recent Fourth Circuit case,
Brzonkala v. Virginia Polytechnic Institute, invalidating a portion of
the 1994 Violence Against Women Act on the basis of Boerne and
Lopez.\8\ This Fourth Circuit opinion may or may not be upheld if and
when the Supreme Court reaches the issue involved in that case. But it
is a straw in the wind suggesting some of the judicial difficulties the
current version of S. 622 might face.
---------------------------------------------------------------------------
\8\ See Brzonkala v. Virginia Polytechnic Institute, 169 F.3d 820 (
4th Cir. 1999) (en banc).
---------------------------------------------------------------------------
C. The double jeopardy problem
Even if courts were to dismiss these possible constitutional
objections and uphold the new federal crimes defined by Section 4, a
final problem would arise. Is it really fair to subject a private
citizen to federal prosecution after, say, he has been acquitted in a
state prosecution? Court doctrine allows for prosecution by dual
sovereigns,\9\ but this doctrine is hard to explain in situations where
both governments are working in close partnership to investigate and
prosecute a given crime. If the state cannot get two bites at the
apple, and neither can the feds, why should the two governments acting
as a team get two bites? \10\
---------------------------------------------------------------------------
\9\ See, e.g., Bartkus v. Illinois, 359 U.S. 121 (1959) (upholding
state prosecution for bank robbery following a federal acquittal for
robbing the same federally insured bank).
\10\ See generally Daniel A. Braun, Praying to False Sovereigns:
The Rule Permitting Successive Prosecutions in the Age of Cooperative
Federalism, 20 Am. J. Crim. L. 1 (1992).
---------------------------------------------------------------------------
In a 1995 Columbia Law Review article on the Double Jeopardy issues
raised by the Rodney King case,\11\ Jon Marcus (now a federal
prosecutor) and I argued that from a civil liberties perspective, it
makes a good deal of sense to allow federal prosecution of state
officials who abuse the rights of private citizens. Even after state
officials have been acquitted in state court on state criminal
charges--as were the Los Angeles officers in the Rodney King case--
federal criminal prosecution in federal court for federal offenses
might well appropriate, we argued. State courts and state prosecutors
might predictably go easy on state officials, and these officials wield
special and awesome powers over the rest of us. To protect the rights
of ordinary citizens, it seems fair to hold abusive officials to a very
high standard. But private citizens, we argued, were very different,
and double prosecution of them in situations where state and federal
governments are acting as a team seems unfair. (A separation of powers
analogy is that a federal officer who wields special power over fellow
citizens is subject to impeachment and ordinary criminal prosecution,
but private citizens are not subject to this kind of double-whacking.)
---------------------------------------------------------------------------
\11\ See Akhil Reed Amar and Jonathan L. Marcus, Double Jeopardy
Law After Rodney King, 95 Colum. L. Rev. 1, 4-27 (1995).
---------------------------------------------------------------------------
S. 622 thus poses a dilemma. It seeks to both strengthen the
partnership between state and federal governments and yet deny that
partnership when it comes to fundamental principles underlying double
jeopardy and collateral estoppel. If the two governments really are one
team in investigating and prosecuting, as contemplated by S. 622, then
when a defendant is prosecuted by teammate and wins an acquittal, is it
fair for the other teammate to ignore that verdict?
iii. alternatives
Here are some alternative solutions this Committee should consider:
1. Commission a careful analysis of existing hate crime data.
2. Consider adoption of a ``model'' state statute that states should
be encouraged to adopt. This proposal symbolically affirms a strong
national commitment without any arguable federal overreaching. This
model statute might even follow the development of two or three
different federal antihate pilot programs, whereby the federal
government would invite cooperating states to implement these
different pilot programs for, say, 5 years. If, say, Minnesota
follows program A and Wisconsin follows program B, we can see in
the field the comparative strengths and weaknesses of each
strategy. And of course state cooperation can be induced by federal
funds. This pilot program/model statute approach takes advantage of
the virtues of a federal system and state laboratories, and
showcases cooperative federalism.
3. Consider creating a federal civil right of action instead of a
federal criminal law. The proposed federal criminal law is likely
to be a mere ``feelgood'' law that will rarely be used, as a
practical matter, given the predominance of state prosecution, and
the provisions of the Justice Department's ``Petite Policy.'' \12\
And it raises double jeopardy concerns that civil causes of action
avoid. Further, a civil cause of action is even better at
symbolically affirming victims, since it tries to compensate them,
and gives them control of litigation. Because civil litigation
seeks compensation for past injury rather than criminal punishment,
it might be easier to link to the commerce clause as an arguably
commercial regulation.
---------------------------------------------------------------------------
\12\ Under this policy, the Justice Department will generally
refrain from prosecuting an individual after a state prosecution for
the same crime, unless there are compelling reasons for a second trial.
The policy is set forth in the United States Attorneys' Manual, Sec. 9-
2.142.
4. Make more explicit findings about the link to interstate commerce.
Of course, this may require more careful analysis of actual hate
---------------------------------------------------------------------------
crime data.
5. Consider explicitly invoking the citizenship clause of the
Fourteenth Amendment in addition to the Thirteenth Amendment. (I am
not hugely optimistic that the current Court would accept this
basis for Congressional power; but such an assertion is well
supported by the letter and spirit and original intent of the
Fourteenth Amendment.)
6. Counterbalance any perceived ``weakening'' of the Act that would
result from omitting or trimming Section 4 by an even stronger
statement of principle. In its findings (Section 2) Congress should
say something like this: ``Acting under our powers to protect the
rights of every American citizen to freedom and equality, as
contemplated by the Fourteenth Amendment, this Congress declares
that all Americans are equal citizens, regardless of race, color,
religion, national origin, gender, sexual orientation, or
disability.'' [Alternative version: ``We hold these truths to be
self evident, that all persons-regardless of race, color, religion,
national origin, gender, sexual orientation, or disability--are
created equal; that they are endowed by their Creator with certain
unalienable rights; that among these rights are life, liberty, and
the pursuit of happiness; that to secure these rights, governments
are instituted; and that it is the duty of government to protect
these rights from those who seek to cause bodily injury to any
person on account of that person's actual or perceived race, color,
national origin, religion, sexual orientation, gender, or
disability.'']
Thank you, Mr. Chair and members of the Committee.
Senator Specter. Well, we thank you all. I regret that
other Senators were not here, but this is not atypical.
Mr. Neuborne. Senator, one moment, because the notion about
data I think is terribly important.
Senator Specter. You may proceed.
Mr. Neuborne. There was something in the Attorney General's
testimony that I would like to just highlight, and that is the
extraordinary success of the recent statute dealing with church
bombings, 247. The usual apprehension rate in arson--it is a
very hard crime to solve, as you well know--is only about 16
percent.
Once that statute was passed and they were able to create
the kind of joint Federal-State task forces, the apprehension
rate for church bombings has gone up to 34 percent. So they
have more than doubled the apprehension rate in the short time
that that statute has been in effect. I suggest to the Senate
that that is a very powerful piece of data pressing in favor of
enacting this legislation.
Senator Specter. Well, thank you very much, Professor
Neuborne, for that observation.
We do have staff here noting the testimony, and it is part
of the record and it is very helpful. I think that all of the
views have been very forcefully expressed. I frankly wish we
had time for extended questioning, but we do not. So, again, I
thank you for your participation.
[Whereupon, at 12:00 p.m., the committee was adjourned.]
A P P E N D I X
----------
Additional Submissions for the Record
----------
Prepared Statement of American Civil Liberties Union
i. introduction
The American Civil Liberties Union respectfully submits this
statement to urge the Senate Committee on the Judiciary to respond by
legislation to the continuing problem of an inadequate state and local
response to criminal civil rights violations, but also to request that
the Committee amend S. 622, the Hate Crimes Prevention Act of 1999, to
limit its potential chilling effect on constitutionally protected
speech. The ACLU believes that the Congress can and should expand
federal jurisdiction to prosecute criminal civil rights violations when
state and local governments are unwilling or unable to prosecute, while
also precluding evidence of mere abstract beliefs or mere membership in
an organization from becoming a basis for such prosecutions.
The ACLU has a long record of support for stronger protection of
both free speech and civil rights. Those positions are not
inconsistent. In fact, vigilant protection of free speech rights
historically has opened the doors to effective advocacy for expanded
civil rights protections.
Six years ago, the ACLU submitted a brief to the Supreme Court
urging the Court to uphold a Wisconsin hate crime enhancement statute
as constitutional. However, the ACLU also asked the Court ``to set
forth a clear set of rules governing the use of such statutes in the
future.'' The ACLU warned the Court that ``if the state is not able to
prove that a defendant's speech is linked to specific criminal
behavior, the chances increase that the state's hate crime prosecution
is politically inspired.'' The draft amendment described in this
statement will help avoid that harm.
This statement explains the need for legislation to expand federal
authority to prosecute federal civil rights violations, and the reason
for adding an evidentiary restriction to section 245 of the federal
criminal code. The ACLU will strongly support passage of S. 622 if the
Committee adds the evidentiary restriction and avoids any changes to S.
622's substantive provisions.
ii. the persistent problem of criminal civil rights violations
The ACLU supports providing remedies against invidious
discrimination and urges that discrimination by private organizations
be made illegal when it excludes persons from access to fundamental
rights or from the opportunity to participate in the political or
social life of the community. The serious problem of crime directed at
members of society because of their race, color, religion, gender,
national origin, sexual orientation, or disability merits legislative
action.
Such action is particularly timely as a response to the rising tide
of violence directed at people because of such characteristics. Those
crimes convey a constitutionally unprotected threat against the
peaceable enjoyment of public places to members of the targeted group.
Pursuant to the Hate Crime Statistics Act, the Federal Bureau of
Investigation annually collects and reports statistics on the number of
bias-related criminal incidents reported by local and state law
enforcement officials. In 1996, based on reports from law enforcement
agencies covering 84 percent of the nation's population, the FBI
reported 8,759 incidents covered by the Act. 5,396 of those incidents
were related to race, 1,401 to religion, 1,O16 to sexual orientation,
940 to ethnicity or national origin, and six to multiple categories.
Existing federal law does not provide any separate offense for
violent acts based on race, color, national origin, or religion, unless
the defendant intended to interfere with the victims participation in
certain enumerated activities. 18 U.S.C.A. Sec. 245(b)(2). During
hearings last year in the Senate and House of Representatives,
advocates for racial, ethnic, and religious minorities presented
substantial evidence of the problems resulting from the inability of
the federal government to prosecute crimes based on race, color,
national origin, or religion without any tie to an enumerated activity.
Those cases include violent crimes based on a protected class, which
state or local officials either inadequately investigated or declined
to prosecute.
In addition, existing federal law does not provide any separate
offense whatsoever for violent acts based on sexual orientation,
gender, or disability. The exclusion of sexual orientation, gender, and
disability from section 245 of the criminal code can have bizarre
results. For example, in an appeal by a person convicted of killing an
African-American gay man, the defendant argued that ``the evidence
established, if anything, that he beat [the victim] because he believed
him to be a homosexual and not because he was black.'' United States v.
Bledsoe, 728 F.2d 1094, 1098 (8th Cir. 1984), cert. denied, 469 U.S.
838 (1984). Among the evidence that the court cited in affirming the
conviction because of violence based on race, was testimony that the
defendant killed the black gay victim, but allowed a white gay man to
escape. Id. at 1095, 1098. Striking or killing a person solely because
of that person's sexual orientation would not have resulted in a
conviction under that statute.
In addition to the recent accounts of the deaths of Matthew Shepard
and Billy Jack Gaither, other reports of violence because of a person's
sexual orientation include:
An account by the Human Rights Campaign of ``[a] lesbian
security guard, 22, [who] was assigned to work a holiday shift
with a guard from a temporary employment service. He
propositioned her repeatedly. Finally, she told him she was a
lesbian. Issuing anti-lesbian slurs, he raped her.''
A report by Mark Weinress, during an American Psychological
Association briefing on hate crimes, of his beating by two men
who yelled ``'we kill faggots'' and ``die faggots'' at the
victim and his partner from the defendants' truck, chased the
victims on foot while shouting ``death to faggots,'' and beat
the victims with a billy club while responding ``we kill
faggots'' when a bystander asked what the defendants were
doing.
A report by the National Gay and Lesbian Task Force of a
letter from a person who wrote that she ``was gang-raped for
being a lesbian. Four men beat me, spat on me, urinated on me,
and raped me . * * * When I reported the incident to Fresno
police, they were sympathetic until they learned I was
homosexual. They closed their book, and said, `Well, you were
asking for it.'''
An article in the November 22, 1997 issue of the Washington
Post about five Marines who left the Marine Barracks on Capitol
Hill to throw a tear gas canister into a nearby gay bar.
Several persons were treated for nausea and other gas-related
symptoms.
The problem of crimes based on gender is also persistent. For
example, two women cadets at the Citadel, a military school that had
only recently opened its doors to female students, were singled out and
``hazed'' by male cadets who did not believe that women had a right to
be at the school. Male cadets allegedly sprayed the two women with nail
polish remover and then set their clothes ablaze, not once, but three
times within a two month period. One male cadet also threatened one of
the two women by saying that he would cut her ``heart out' if he ever
saw her alone off campus.
Federal legislation addressing such criminal civil rights
violations is necessary because state and local law enforcement
officers are sometimes unwilling or unable to prosecute those crimes
because of either inadequate resources or their own bias against the
victim. The prospect of such failure to provide equal protection of the
laws justifies federal jurisdiction.
For example, state and local law enforcement officials have often
been hostile to the needs of gay men and lesbians. The fear of state
and local police--which many gay men and lesbians share with members of
other minorities--is not unwarranted. For example, until recently, the
Maryland state police department refused to employ gay men or lesbians
as state police officers. In addition, only last year, a District of
Columbia police lieutenant who headed the police unit that investigates
extortion cases was arrested by the FBI for attempting to extort
$10,000 from a married man seen leaving a gay bar. Police officers
referred to the practice as ``fairy shaking.'' The problem is
widespread. In fact, the National Coalition of Anti-Violence Programs
reports several hundred anti-gay incidents allegedly committed by state
and local law enforcement officers annually. The federal government
clearly has an enforcement role when state and local governments fail
to provide equal protection of the laws.
iii. importance of adding a new evidentiary restriction
Despite the need to amend the principal federal criminal civil
rights statute, 18 U.S.C. Sec. 245, to expand federal jurisdiction to
address the problem of an inadequate state and local response to
criminal civil rights violations, the ACLU cannot support S. 622 unless
the Committee amends the legislation to limit its potential chilling
effect on constitutionally protected speech. Specifically, the ACLU
strongly urges the Committee to amend S. 622 by adding the following
evidentiary provision:
In any prosecution under this section, (i) evidence proving
the defendant's mere abstract beliefs or (ii) evidence of the
defendant's mere membership in an organization, shall not be
admissible to establish any element of an offense under this
section. This provision will reduce or eliminate the
possibility that the federal government could obtain a criminal
conviction on the basis of evidence of speech that had no role
in the chain of events that led to any alleged violent act
proscribed by the statute. On its face, S. 622 punishes only
the conduct of intentionally selecting another person for
violence because of that person's race, color, national origin,
religion, gender, sexual orientation, or disability. The
prosecution must prove the conduct of intentional selection of
the victim. Thus, S. 622, like the present section 245,
punishes discrimination (an act), not bigotry (a belief).
The federal government usually proves the intentional selection
element of section 245 prosecutions by properly introducing ample
evidence related to the chain of events. For example, as discussed
above, in a recent section 245 prosecution based on race, a federal
court of appeals found that the prosecution met its burden of proving
that the defendant attacked the victim because of his race by
introducing admissions that the defendant stated that ``he had once
killed a nigger queen,''that he attacked the victim ``[b]ecause he was
a black fag,'' and by introducing evidence that the defendant allowed a
white gay man to escape further attack, but relentlessly pursued the
black gay victim.
Although the Justice Department maintains that it usually avoids
attempting to introduce evidence proving nothing more than that a
person holds racist or other bigoted views, it has at least
occasionally introduced such evidence. In at least one decision, a
federal court of appeals expressly found admissible such evidence that
was wholly unrelated to the chain of events that resulted in the
violent act. United States v. Dunnaway, 88 F.3d 617 (8th Cir. 1996).
The court upheld the admissibility of a tattoo of a skinhead group on
the inside lip of the defendant because ``[t]he crime in this [section
245] case involved elements of racial hatred.'' Id. at 618. The tattoo
was admissible even in the absence of any evidence in the decision
linking the skinhead group to the violent act.
The decision admitting that evidence of a tattoo confirmed our
concerns expressed in the ACLU's brief filed with the Supreme Court in
support of the Wisconsin hate crimes penalty enhancement statute. In
asking for guidance from the Court on the applicability of such
statutes, the ACLU stated its concern that evidence of speech should
not be relevant unless ``the government proves that [the evidence] is
directly related to the underlying crime and probative of the
defendant's discriminatory intent.'' The ACLU brief urged that, ``[a]t
a minimum, any speech or association that is not contemporaneous with
the crime must be part of the chain of events that led to the crime.
Generalized evidence concerning the defendant's racial views is not
sufficient to meet this test.''
The ACLU's concern with S. 622 is that we will see even more such
evidence admitted in section 245 prosecutions if S. 622 is enacted
without an evidentiary restriction. Many of the arguments made in favor
of expanding section 245 are very different than the arguments made in
favor of enacting section 245 nearly 31 years ago. At that time, the
focus was on giving the federal government jurisdiction to prosecute
numerous murders of African-Americans, including civil rights workers,
which had gone unpunished by state and local prosecutors. The intent
was to have a federal backstop to state and local law enforcement.
Although S. 622 will also serve that important purpose in creating
federal jurisdiction, its proponents are focusing on ``combating
hate,'' fighting ``hate groups,'' and identifying alleged perpetrators
by their membership in such groups--even in the absence of any link
between membership in the group and the violent act. The arguments are
even applied retroactively. During hearings before the Committee last
year, the Justice Department referenced section 245, which passed as an
important part of the Civil Rights Act of 1968, as ``the federal hate
crimes statute.''
The danger is that--after a debate focused on combating ``hate''--
courts, litigants, and jurors applying an expanded and more powerful
section 245 may be more likely to believe that speech-related evidence
is a proper basis for proving the intentional selection element of the
offense, even when it was unrelated to the chain of events leading to a
violent act. The focus may be on proving the selection element by
showing ``guilt by association'' with groups whose bigoted views we may
all find repugnant, but which may have had no role in committing the
violent act. We should add that evidence of association could also just
as easily focus on many groups representing the very persons that S.
622 was drafted to protect.\1\ Our suggested amendment will preclude
all such evidence from becoming the basis for prosecution, unless it
was part of the chain of events leading to the violent act.
---------------------------------------------------------------------------
\1\ For example, many of the principal First Amendment association
decisions arose from challenges to governmental investigations of civil
rights and civil liberties organizations. See, e.g., Gibson v. Florida
Legislative Investigation Committee, 372 U.S. 539 (1962) (holding that
the NAACP could refuse to disclose its membership list to a state
legislature investigating alleged Communist infiltration of civil
rights groups); Bates v. City of Little Rock, 361 U.S. 516 (1960)
(reversing a conviction of NAACP officials who refused to comply with
local ordinances requiring disclosure of membership lists); NAACP v.
State of Alabama, 357 U.S. 449 (1958) (holding as unconstitutional a
judgment of contempt and fine on the NAACP for failure to produce its
membership lists); New Jersey Citizen Action v. Edison Township, 797
F.2d 1250 (3rd Cir. 1986) (refusing to require the fingerprinting of
door-to-door canvassers for a consumer rights group), cert. denied, sub
nom. Piscataway v. New Jersey Citizen Action, 479 U.S. 1103 (1987);
Familias Unidas v. Briscoe, 619 F.2d 391 (5th Cir. 1980) (refusing a
request to compel the disclosure of the membership list of a public
school reform group); Committee in Solidarity with the People of El
Salvador v. Sessions, 705 F.Supp. 25 (D.D.C. 1989) (denying a request
for preliminary injunction against FBI's dissemination of information
collected on foreign policy group); Alliance to End Repression v. City
of Chicago, 627 F.Supp. 1044 (1985) (police infiltrated and
photographed activities of a civil liberties group and an anti-war
group).
---------------------------------------------------------------------------
However, the proposed evidentiary amendment is not overly
expansive. By inserting ``mere'' before ``abstract beliefs'' and
``membership in an organization,'' the provision will bar only evidence
that had no direct relationship to the underlying violent offense. It
will have no effect on the admissibility of evidence of membership or
belief that bears such a direct relationship to the underlying crime.
Thus, the proposal will not bar all evidence of membership or belief.
Finally, we recognize that statutory restrictions on the
admissibility of evidence in criminal matters are not common. However,
such restrictions are not without precedent. In fact, the basic
structure for the new paragraph is from 18 U.S.C.A. Sec. 2101(b), which
defines admissible evidence for an element of the federal riot statute.
We believe that the potential for misuse of an expanded section 245 is
significant enough to warrant a statutory restriction on the
admissibility of certain evidence.
iv. conclusion
For the foregoing reasons, the ACLU urges the Committee to amend S.
622 to limit its potential chilling effect on constitutionally
protected speech, but also to use the legislation to expand federal
jurisdiction to address the problem of an inadequate state and local
response to criminal civil rights violations. The ACLU appreciates this
opportunity to present our concerns.
__________
Prepared Statement of the Center for Women Policy Studies
The Center for Women Policy Studies strongly supports S. 622, the
Hate Crimes Prevention Act of 1999 (S. 622), introduced by Senators
Kennedy, Schumer, Smith, Specter, and Wyden. It is one of the key
priority women's issues confronting the 106th Congress.
We would like to make several key points about the inclusion of
gender in federal legislation that addresses hate crimes.
First, S. 622 provides uniformity to federal criminal hate
statutes. The Hate Crimes Sentencing Enhancement Act, included in the
Violent Crime Control and Law Enforcement Act of 1994, already defines
a hate crime as ``a crime in which the defendant intentionally selects
a victim * * * because of the actual or perceived race, color,
religion, national origin, ethnicity, gender, disability or sexual
orientation of any person'' (italics added).
Second, S. 622 provides an important tool to protect battered and
sexually assaulted women and girls when state or local authorities are
unable or unwilling to respond adequately. Less than half of the states
have bias-motivated criminal hate crimes statutes that cover crimes
based on gender. The federal law ensures that all women have a full set
of legal remedies, and also allows federal resources to assist with
investigation and prosecution, particularly when the violence is of the
most heinous nature. The Center believes that states must take a
leadership role in ending bias-motivated hate crimes against women by
expanding their criminal statutes and prosecuting these cases.
Third, violence against women clearly can meet the requirements of
widely accepted definitions of hate crimes, as demonstrated in the
Center's 1991 report Violence Against Women as Bias Motivated Hate
Crime: Defining the Issues. Hate crimes are acts of terrorism directed
not only at the individual victims but at their entire community. Its
purpose is to intimidate and frighten all women and girls, and to put
them ``in their place.'' Further, hate crimes are directed toward
groups of people that suffer discrimination in other arenas, and that
do not have full access to institutions meant to remedy social,
political and economic injustice. The sad truth is that women are such
a group of people, and acts of violence against women--from threatening
obscene telephone calls to street harassment, from battering to rape to
serial murders with mutilation to mass murders in schools--clearly meet
the definition of hate crimes. Acts of violence against women--from
threatening obscene telephone calls to street harassment, from
battering to rape to serial murders to mutilation to mass murders in
schools--are crimes committed by one group--men--who by violence
attempt to intimidate, control and dominate another group--women. And
the settings for these violent acts are the home, the workplace, the
schools, and the streets--because the ``boundaries'' women cross are
not the lines of segregated neighborhoods but the lines of appropriate
behavior and submission to male authority.
Fourth, the law and its enforcement must focus on the crime itself
and its motivation rather than perpetuate misconceptions about the
nature of violence against women. Hate crimes based on race, ethnicity,
religion, sexual orientation and disability all have their own
particular qualities and the victims are identified by the perpetrators
in different ways and may or may not involve victims and perpetrators
who are acquainted. Gender-motivated hate crimes, however, are
sometimes arbitrarily distinguished from other hate crimes because they
are the most likely to involve a perpetrator and victim who are
intimately related. Neither the intimacy of the relationship between
the victim and the attacker, nor the prevalence of violence against
women perpetuated by men should deter us from looking honestly at why
the violence occurs.
Fifth, as with all hate crimes, the prosecutor will face the
challenge to establish gender-bias motivation through evidence such as
the use of hate language, nature and severity of the attack, lack of
provocation, absence of other motives, and a previous history of
similar incidents of violence and intimidation of the victim and other
women. This requirement will limit the number of acts of violence
against women which will be charged and successfully prosecuted as a
hate crime.
We believe that members of Congress support protecting women's
human rights and are dedicated to ending Violence against women and all
people. We urge the members of the Senate Judiciary Committee to
support S. 622 as a critical part of a comprehensive national strategy
for accomplishing these goals.
__________
Prepared Statement of Mrs. Catrina Durr's Law Students, Thornton
Township High School, Harvey, IL
We the students of Ms. Catrina Durr's law classes at Thornton
Township High School in Harvey, Illinois, strongly agree that if the
Federal government imposes legislation that it will help prevent the
problem of hate crimes. Hate crimes across the nation are increasing
more than ever before. Hate crimes are any act of discrimination
committed against a person or a group due to their race, religion,
sexual preference, and other prejudices. The federal government needs
to make a clear definition for the phrase HATE CRIME. They must also
find a way to increase hate crime report so that the criminal
perpetrator can be fully prosecuted. The government needs to make
stiffer punishments for these acts because they threatened the
authority of our government to enforce our most serious mores.
Hate crimes root from a persons, environment. Children must be
taught how to respect differences. They also need to learn right from
wrong. It is also the responsibility of government to insure the safety
of all Americans not just the dominant class. Ethnocentric ideas have
protection under the bill of rights of our constitution, but those
rights are limited when peoples actions violate others rights and
safety. We must also control all ethnocentric attitudes that harm the
integrity of our nation. People must be educated about ethnic
differences; and destroy ignorance. Only the government as a whole can
address this problem of hate crimes because this is a worldwide
problem. For example, in the fifties and sixties there were no hate
crime laws. And during this time African Americans were being lynched
more than ever before. After states instituted hate crime legislation
the amount of hate crimes significantly decreased. Therefore we
strongly want you to consider making a federal hate crime law.
__________
Prepared Statement of Mrs. Linda Franklin's Third Period Students,
Thornton Township High School Harvey, IL
Mrs. Linda Franklin's third period social studies class at Thornton
Township High School of Harvey, IL strongly believe the Federal
government must impose legislation in an attempt to prevent the growing
problem of HATE CRIMES. Those who have become aware of hate crimes,
should know them to be any act of hate of discrimination committed
against a person or group of persons due to their race, religion,
sexual preferences, etc. Thus the Federal government must erect a
definite and clear definition for the phrase ``hate crime''. The people
and government must find a way to ensure that hate crimes are reported,
so that those that commit them may be fully prosecuted. It is also
important for the Federal government to increase the punishment for
committing an act of racial discrimination. People must have the
largest and most logical negative incentive not to commit a hate crime.
Hate crimes should be considered felonies, and dealt with as felonies.
The time must be made to fit the crime.
However, it is important to understand that the problem of hate
crime has its roots in a person's environment. People must be taught at
a young age, that despite our differences, we are very much alike. They
must learn right from wrong at an early age. People who commit hate
crimes obtain their views of other people, or groups at an early age.
it is also important that we as a community get rid of the ethnocentric
attitude that is pulling us apart and become one nation. Furthermore,
people must be educated about ethnic differences to destroy the
ignorance that is the driving force behind hate crimes.
__________
Prepared Statement of Timothy Lynch
Mr. Chairman, Distinguished Members of the Committee: My name is
Timothy Lynch. I am associate director of the Cato Institute's Center
for Constitutional Studies.
I want to thank the committee for inviting me to submit written
testimony on the question of whether Congress should enact the ``Hate
Crimes Prevention Act of 1999.''
I believe the proponents of hate crimes legislation have good and
honorable intentions. They would like to see less bigotry and more good
will in American society. While I share that goal, I believe Congress
should decline the invitation to enact hate crimes legislation for both
constitutional and practical reasons.
a. constitutional objection
The U.S. Constitution created a federal government of limited
powers. As James Madison noted in the Federalist no. 45, ``The powers
delegated by the proposed Constitution to the federal government are
few and defined. Those which are to remain in the State governments are
numerous and indefinite.'' Most of the federal government's ``delegated
powers'' are specifically set forth in article I, section 8. The Tenth
Amendment was appended to the Constitution to make it clear that the
powers not delegated to the federal government ``are reserved to the
States respectively, or to the people.''
Crime is serious problem, but under the U.S. Constitution it is a
matter to be handled by state and local government. In Cohens v.
Virginia, 6 Wheat (19 U.S.) 264 (1821), Chief Justice John Marshall
observed that Congress had ``no general right to punish murder
committed within any of the States'' and that it was ``clear that
congress cannot punish felonies generally.'' Unfortunately, as the
years passed, Congress eventually assumed the power to enact a vast
number of criminal laws pursuant to its power ``to regulate Commerce
with foreign Nations, and among the several States, and with the Indian
Tribes.'' \1\
---------------------------------------------------------------------------
\1\ See Kathleen F. Brickey, ``Criminal Mischief: The
Federalization of American Criminal Law,'' 46 Hastings Law Journal 1135
(1995); Edwin Meese III, ``Big Brother on the Beat: The Expanding
Federalization of Crime,'' 1 Texas Review of Law and Politics 1 (1997).
See also Richard A. Epstein, ``The Proper Scope of the Commerce
Power,'' 73 Virginia Law Review 1387 (1987).
---------------------------------------------------------------------------
In recent years, Congress has federalized the crimes of gun
possession within a school zone, carjacking, wife beating, and female
genital cutting. All of that and more has been rationalized under the
Commerce Clause.\2\ In United States v. Lopez, 514 U.S. 549 (1995), the
Supreme Court finally struck down a federal criminal law, the Gun-Free
School Zone Act of 1990, because the connection between handgun
possession and interstate commerce was simply too tenuous. In a
concurring opinion, Justice Clarence Thomas noted that if Congress had
been given authority over matters that simply affect interstate
commerce, much if not all of the enumerated powers set forth in article
I, section 8 would be surplusage. Indeed, it is difficult to dispute
Justice Thomas, conclusion that an interpretation of the commerce power
that ``makes the rest of Sec. 8 surplusage simply cannot be correct.''
---------------------------------------------------------------------------
\2\ See Timothy Lynch, ``Dereliction of Duty: The Constitutional
Record of President Clinton,'' Cato Institute Policy Analysis No. 271,
March 31, 1997, pp. 37-43.
---------------------------------------------------------------------------
This Congress should not exacerbate the errors of past Congresses
by federalizing more criminal offenses. The Commerce Clause is not a
blank check for Congress to enact whatever legislation it deems to be
``good and proper for America.'' The proposed Hate Crimes Prevention
Act is simply beyond the powers that are delegated to Congress.
b. policy objections
Beyond the threshold constitutional problem, there are several
other reasons why Congress should decline the invitation to enact hate
crimes legislation.
First, all of the violent acts that would be prohibited under the
proposed bill are already crimes under state law. Over the last two
years, there has been a great deal of publicity surrounding the brutal
killings of James Byrd in Texas and Matthew Shepard in Wyoming. The
individuals suspected of committing those murders were quickly
apprehended and prosecuted by state and local authorities. Those
incidents do not show the necessity for congressional action; to the
contrary, they show that federal legislation is unnecessary.\3\
---------------------------------------------------------------------------
\3\ If convincing evidence were presented to Congress that state
officials were enforcing the local criminal law in an uneven manner so
that certain citizens were being deprived of the equal protection of
the law, Congress can (and should) invoke its legislative power under
section 5 of the Fourteenth Amendment. I hasten to add, however, that a
federal ``hate crimes'' law would be an inappropriate response to such
a situation--for all of the other reasons outlined herein.
---------------------------------------------------------------------------
Second, the so-called ``Hate Crimes Prevention Act'' is not going
to prevent anything. Any thug that is already inclined to hurt another
human being is not going to lay down the gun or knife because of some
new law passed by Congress. The culprits involved in the killings of
James Byrd and Matthew Shepard, for example, made a conscious decision
to disregard basic homicide statutes. And those murders took place in
states that have the most drastic legal sanction available under the
law--the death penalty. The notion that any federal hate crime law
could have prevented those brutal killings is preposterous.
Third, it is important to note that the whole concept of ``hate
crimes'' is fraught with definitional difficulties. Hate crimes
generally refer to criminal conduct motivated by prejudice. Should all
prejudices be included in the hate crime definition--or only a select
few? The recent school shooting in Colorado illustrates this problem.
According to news reports, one of the groups targeted by the deceased
teenage suspects was athletes.\4\ If the athletes had been the sole
targets of the school shooting, such a crime would not have been
considered a hate crime in any jurisdiction (federal or state). And yet
we can be fairly certain that the perpetrators of the Colorado rampage
were filled with hatred toward ``jocks.''
---------------------------------------------------------------------------
\4\ See Eric Pooley, ``Portrait of a Deadly Bond,'' Time, May 10,
1999, p. 26.
---------------------------------------------------------------------------
For the proponents of hate crime laws, the dilemma is this: if some
groups (women, gays, vegetarians, golfers, whatever) are left out of
the ``hate crime'' definition, they will resent the selective
depreciation of their victimization. On the other hand, if all victim
groups are included, the hate crime category will be no different than
``ordinary'' criminal law.\5\
---------------------------------------------------------------------------
\5\ See generally James B. Jacobs and Kimberly Potter, Hate Crimes:
Criminal Law and Identity Politics (Oxford University Press, 1998).
---------------------------------------------------------------------------
Fourth, proponents of hate crime legislation believe that such laws
will increase tolerance in our society and reduce intergroup conflict.
I believe hate crime laws may well have the opposite effect. That's
because the men and women who will be administering the hate crime laws
(e.g. police, prosecutors) will likely encounter a never-ending series
of complaints with respect to their official decisions. When a U.S.
Attorney declines to prosecute a certain offense as a hate crime, some
will complain that he is favoring the groups to which the accused
belongs (e.g. hispanic males). And when a U.S. Attorney does prosecute
an offense as a hate crime, some will complain that the decision was
based upon politics and that the government is favoring the groups to
which the victim belongs (e.g. Asian Americans).
This is already happening in the jurisdictions that have enacted
hate crime laws at the local level. For example, when then New York
City Mayor David Dinkins characterized the beating of a black man by
white Jewish men as a hate crime in 1992, the Jewish community was
outraged.\6\ Jewish community leaders said the black man was a burglar
and that some men were attempting to hold him until the police could
take him into custody. The black man did not want to go to jail, so he
resisted--and the Jewish men fought back. Incidents such as that
illustrate that actual and perceived bias in the enforcement of hate
crime laws can exacerbate intergroup relations.
---------------------------------------------------------------------------
\6\ See Mary B.W. Tabor, ``Black is Victim of Beating By Hasidim in
Crown Heights,'' New York Times, December 2, 1992, p. B3; Jane Fritsch,
``Police Dept. Vows Caution in Labeling Crimes as Bias Cases,'' New
York Times, December 22, 1992, p. A1.
---------------------------------------------------------------------------
Fifth, hate crimes legislation will take our law too close to the
notion of thought crimes. It is, of course, true that the hate crime
laws that presently exist cover acts, not just thoughts. But once hate
crime laws are on the books, the law enforcement apparatus of the state
will be delving into the accused's life and thoughts in order to show
that he or she was motivated by bigotry. What kind of books and
magazines were found in the home? What internet sites were bookmarked
in the computer? Friends and co-workers will be interviewed to discern
the accused's politics and worldview. The point here is that such
chilling examples of state intrusion are avoidable because, as noted
above, hate crime laws are unnecessary in the first place.
The claim will doubtless be made that such problems can be avoided
by ``sound prosecutorial discretion'' with respect to the application
of hate crimes legislation. Congress should not accept that bland
assurance. Consider, for example, a hate crime prosecution from Ohio.
The case involved an interracial altercation at a campground and here
is how the prosecutor questioned the white person accused of a hate
crime:
Q. And you lived next door * * * for nine years and you don't even
know her first name?
A. No.
Q. Never had dinner with her?
A. No.
Q. Never gone out and had a beer with her?
A. No. * * *
Q. You don't even associate with her, do you?
A. I talk to her when I can, whenever I see her out.
Q. All these black people that you have described as your friends,
I want you to give me one person, just one who was a really good friend
of yours.\7\
---------------------------------------------------------------------------
\7\ See Richard Dooling, ``Good Politics, Bad Law,'' New York
Times, July 26, 1998 (quoting State v. Wyant, 597 N.E.2d 450 (1992),
vacated and remanded, 113 S.Ct. 2954 (1993), reversed, 624 N.E.2d 722
(1994)).
This passage highlights the sort of inquisitorial cross-examination
that may soon become common whenever an accused person takes the
witness stand to deny a bias or hate charge that has been lodged
against him or her.
In People v. Lampkin, 457 N.E.2d 50 (1983), the prosecution
presented as evidence racist statements that the defendant had uttered
six-years before the crime for which he was on trial. This case raises
the question of whether there is going to be statute of limitations for
such behavior? For example, it is not uncommon for teenagers to
entertain various prejudices for brief periods and then discard them as
they mature into adulthood. Is a stupid remark uttered by a 16 year-old
on an athletic field going to follow that person around the rest of his
or her life? Shouldn't our law make room for the possibility that
people can exhibit some variation of bigotry in life--but then change?
The good news for Congress is this: all of the problems outlined
above are avoidable because hate crime legislation is unnecessary in
the first place.
c. conclusion
For all of the above stated reasons, I would urge Congress not only
to decline the invitation to pass the Hate Crimes Prevention Act of
1999, but to repeal all existing federal hate crime laws.
__________
Prepared Statement of National Gay and Lesbian Task Force
The National Gay and Lesbian Task Force (NGLTF) commends Chairman
Hatch for holding a hearing on the vital issue of hate crimes in the
United States. The problem of bias-motivated violence against gay,
lesbian, bisexual and transgender (GLBT) people is unquestioned. The
recent series of murders of GLBT people across the country has
electrified the nation and focused attention on the realities of
homophobia and the dangers of homophobic rhetoric.
The National Coalition of Anti-Violence Programs (NCAVP) documented
2,552 anti-GLBT crimes in 1998 through their network of 26 community-
based organizations across the country. The most striking aspect of
anti-GLBT crimes in 1998 was the increased level of violence of these
crimes. The number of anti-GLBT murders more than doubled from 14 in
1997 to 33 in 1998. The number of assaults which required
hospitalization of the victim increased by 108 percent. The number of
anti-GLBT crimes which involved weapons increased 25 percent. The use
of firearms in these crimes increased 71 percent and the use of knives
and sharp objects increased 13 percent.
The FBI, which monitors hate crimes statistics under the Hate
Crimes Statistics Act, documented 1,375 hate crimes based on sexual
orientation in 1997, the most recent year for which statistics are
available. Hate crimes against people based on sexual orientation are
the third highest category of hate crimes, according to the FBI,
constituting 14 percent of all hate crimes reported to the FBI.
These extreme levels of violence are proven anecdotally by several
murders of gay men which have received national attention. In October
of 1998, Matthew Shepard, a 21-year-old, gay University of Wyoming
student was abducted, beaten unconscious, tied to a fence and left to
die in Laramie, Wyoming. In February, Billy Jack Gaither, a 39-year-old
resident of Sylacauga, Alabama, a town 40 miles south of Birmingham,
was taken to a remote location, bludgeoned to death with an ax handle
and set on fire. In March, Henry Edward Northington, a 39-year-old
homeless man was murdered and beheaded. His severed head was placed on
a walkway known to be a gay meeting place.
Unfortunately, these high profile cases are the exception, not the
norm. Of the 2,552 anti-GLBT crimes reported to NCAVP, only 1,010 were
reported to the police. Many GLBT people are reluctant to go to the
police when they have been a victim of bias-motivated violence.
Frequently they fear being outed to their friends, families and co-
workers. The risk of losing jobs and the love of family and friends is
too great and too real. This fear compels the silence of many in the
GLBT community.
Studies have shown that victims of hate crimes suffer two to three
times more symptoms of trauma than victims of other crimes. Research
indicates that because assailants select victims of hate crimes on the
basis of the victims' gender, sexual orientation, disability, race,
religion or national origin, victims often link their vulnerability to
their personal, cultural or spiritual identity. As a result, victims of
bias crimes suffer greater emotional trauma than victims of other
crimes. Criminal activity based on bias terrorizes not only the victim,
but also the entire community of which the victim is a part.
Furthermore, police personnel often victimize the victims again. In
approximately 15 percent of the GLBT hate crimes reported to the
police, the police refused to take the victim's complaint at all. In 67
percent of cases the police took the complaint but made no arrests.
Finally, in 13 percent of cases, the police took the victim's complaint
but failed to classify the crime as a bias crime. A shocking example of
this practice can be found in St. Louis, Missouri. A 31 year-old white
gay man was assaulted by his neighbor. The neighbor entered the
victim's garage, hit the victim 12 times with a baseball bat while
saying ``You are a faggot * * * who needs to move [out of this
neighborhood]. If you don't move you're gonna die.'' The victim
required 20 stitches and sustained permanent head injury. This incident
still has not been classified as bias-related.
Regrettably, many states do not have a mechanism by which gay,
lesbian, bisexual and transgender people can even report their bias
crimes. Only 21 states and the District of Columbia have enacted hate
crimes laws which include sexual orientation. (These states are
Arizona, California, Connecticut, Delaware, Florida, Iowa, Illinois,
Kentucky, Louisiana, Maine, Massachusetts, Minnesota, Nebraska, New
Hampshire, New Jersey, Nevada, Oregon, Rhode Island, Vermont,
Washington, and Wisconsin.) Nine states do not have any hate crimes
laws at all.
Existing federal hate crimes legislation does not cover actual or
perceived gender, sexual orientation and disability. Current federal
hate crimes laws also require victims to demonstrate that they were
singled out for attack because they were enjoying a federally protected
right, such as voting. This jurisdictional maze allows a defendant to
argue that he attacked a victim because of his perceived sexual
orientation, not because of his race.\1\
---------------------------------------------------------------------------
\1\ See United States v. Bledsoe, 728 F.2d 1094, 1098 (8th Cir.
1984) (rejecting defendant's arguments that he selected the victim on
the basis of his sexual orientation, not race).
---------------------------------------------------------------------------
Expanding federal legislation would accomplish several goals. First
it would provide consistency throughout the country. In all 50 states,
violence against GLBT people would be illegal and prosecutable. Federal
prosecution would continue to be limited by the requirement that the
Attorney General certify cases for federal prosecution. Certification
will continue to be limited to cases where state and local authorities
cannot or will not prosecute assailants or where there exists some
inter-state characteristic to the crime.
Expanded federal legislation will not stop all hate crimes. No law
could achieve that goal. But, expanded federal legislation will send a
clear, national message to the country that all hate crimes, including
hate crimes based on sexual orientation, disability and gender, are
unacceptable and will be punished.
Second, a federal hate crimes law could help address the problem of
violence against people with HIV/AIDS. NCAVP documented 153 instances
of violence against people living with HIV disease in 1998. While this
represents a 43 percent drop in reported incidents from the previous
year the numbers still indicate an underlying fear of the disease. In
1988 the Presidential Commission on the Human Immune Deficiency
Epidemic observed ``Increasingly, violence against those perceived to
carry HIV, so called `hate crimes,' are a serious problem * * * and are
indicative of a society that is not reacting rationally to the
epidemic.'' The Commission called for appropriate legislation to stem
the tide of violence. By including disability as a protected category,
the federal government finally will be addressing these acts of
violence.
Finally, expanded federal legislation which included actual or
perceived gender would address the problem of violence directed at
transgender people. Violence against transgender people soared 49
percent in 1998, according to NCAVP. Protection against violence based
on perceived gender is essential to comprehensive hate crimes
legislation.
Our nation needs a strong statement from the federal government
that it is committing its full resources and attention to combating
this epidemic of violence.
__________
Prepared Statement of NOW Legal Defense and Education Fund
NOW Legal Defense and Education Fund (NOW LDEF) has a 29-year
commitment to women's rights and equality. Working to end violence in
women's lives, including eliminating gender-based bias crimes, is at
the heart of our mission. We chair the National Task Force to End
Violence Against Women that was instrumental in enacting the 1994
Violence Against Women Act (``VAWA '') and litigate to help women
enforce their rights under the VAWA Civil Rights Remedy. The Hate
Crimes Prevention Act is essential to fulfilling our country's
constitutionally guaranteed promise of equality.
introduction
We want to thank Senator Hatch for holding these hearings and
giving us the opportunity to submit testimony in support of the Hate
Crimes Prevention Act of 1999 (HCPA) for the Senate Judiciary
Committee. Hate crime committed because of someone's race, color,
religion, national origin, gender, sexual orientation or disability is
an issue of grave importance to us all. Like all bias crimes, bias
crimes against women are attacks against the community as well as the
individual. These crimes are not random, but are directed at women
because they are women. Individual bias-motivated attacks instill fear
in all women, threatening and constricting women's lives. These crimes
limit where women work, live and study. As a noted report on gender-
based bias crimes by the Center for Women Policy Studies explains,
``[w]omen--whether they are white or women of color, heterosexual or
lesbian, old or young--know that they cannot go places men can go
without the fear of being attacked and violated.'' \1\ And, because of
the great number of rapes and assaults by intimate partners, often they
cannot go home, either? \2\ Federal hate crime laws are critical
because they provide uniform protection in every state from these
systemic civil rights violations. HCPA would amend 18 U.S.C. Sec. 245
(``Section 245''), the federal statute criminalizing certain bias
crimes, to permit prosecution of bias crimes based on gender, sexual
orientation or disability. This amendment is necessary in order to make
real our national commitment to ending all forms of bias-motivated
violence.
---------------------------------------------------------------------------
\1\ Center for Women Policy Studies, Violence Against Women as Bias
Motivated Hat Crime: Defining the Issues 2 (1991).
\2\ A recent Department of Justice Study revealed that women are
five to eight times more likely than males to be victimized by an
intimate. Lawrence A. Greenfield, et. al., U.S. Department of Justice,
Violence by Intimates: Analysis of Data on Crimes by Current or Former
Spouses, Boyfriends, and Girlfriends 4 (March 1998).
---------------------------------------------------------------------------
why the amendment is needed
Adding gender to Section 245 provides recourse so that everyone in
our country has the same protections against bias-motivated violence.
While states hold primary authority for prosecuting bias crimes,
gender-based hate crimes frequently go unpunished or underpunished by
state and local authorities. The majority of states do not have laws
against violence motivated by gender bias. Of the twenty-two states
that do prohibit gender bias crimes, many lack comprehensive penalties,
procedures, and enforcement. Federal authority to prosecute gender-
based bias crimes is needed to ensure that women in every state have
uniform recourse against bias motivated violence.
On the whole, women lack federal protection from bias crime.
Currently, Section 245 permits federal prosecution of certain bias
crimes committed because of the victim's race, color, religion, or
national origin, but does not grant Federal prosecutors the authority
to prosecute bias crimes based on gender. Although the 1994 Violence
Against Women Act (``VAWA'') addresses some gender bias crimes in its
criminal provisions, those provisions are limited to cases of
interstate domestic violence or interstate violations of a protective
order.\3\ Women surviving all other forms of gender bias crimes have no
federal recourse for criminal enforcement even if their state law
enforcement system has not prosecuted the case. And, while the VAWA
civil rights remedy represents a major legal advance, it is not a
substitute for criminal prosecution in the aftermath of a violent
crime.\4\
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\3\ See 18 U.S.C. Sec. 2261 (1998); 18 U.S.C. Sec. 2262 (1998).
\4\ See 42 U.S.C. Sec. 13981 (1997).
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The following are a few examples of gender-based bias crimes for
which federal authority under Section 245 might provide criminal
redress:
A serial batterer had a pattern of assaulting, terrorizing,
and demeaning women. Although convicted five times for
assaulting the same woman, the man never served time for any of
his offenses. On his sixth conviction, the 1992 New Hampshire
hate crime law was used to enhance the sentence. As a result
the man was to serve two to five years for his crime. That 1994
case marked what is believed to be the first and only time New
Hampshire has used its bias law for a gender-bias crime.
A woman was battered by her husband for many years. He had
battered his former wife and former girlfriends as well. He
refused to allow his wife to work, stating that women belong in
the home and that he wouldn't tolerate his wife working. She
went to the police on numerous occasions, but they responded in
only a perfunctory way because they were good friends with her
husband. They repeatedly declined to arrest him even when she
called the police after he violated the restraining orders she
had obtained.
A serial rapist was accused of raping several women. The
crimes were characterized by extreme violence and mutilation of
the women's genitals. He fled the state once he learned the
local police had identified him as a suspect.
A woman alleged that she was gang raped by several men who
uttered gender-based epithets such as ``bitch'' and ``* * *''
as they raped her. They apparently were in town visiting a
friend. Local law enforcement officials said they could not
prosecute them because they lived out of state.
A Washington woman was raped, restrained, battered,
disfigured, threatened verbally, as well as with a loaded
shotgun. Although Washington currently has legislation
prohibiting gender-bias crime, it was not used to prosecute her
assailant. In the absence of federal criminal prosecution, the
woman ultimately sought relief under the VAWA civil rights
remedy, where a federal judge determined the allegations
sufficient to conclude that the violence was motivated by
gender bias.
A woman was sexually assaulted by another passenger while
she was riding on a train from Florida to New York. During the
assault, he berated her, told her that she was getting what she
deserved for traveling alone as a woman, and that should be at
home raising her children. She had no idea which state the
train was passing through at the time of the assault. The
Florida and New York police apologetically said they could not
prosecute as a result.
In Florida, a state without laws against gender-bias crime,
a woman ran from a fraternity house, naked and crying. She
called the police and reported that she had been raped and that
it had been videotaped. The police find the video tape in which
at least one man assaulted the woman while several of his
``brothers'' commentate for the video, stating ``This is what
you call * * * Rape, Rape, Rape, Rape white trash''; ``the
night we rape a white trash crackhead * * *''; ``It is Rape-
thirty in the morning''; and ``Notice the struggle of the
hands.'' After viewing the video, local police concluded that
the video demonstrated consent and arrested the woman for
making a false report.
In Nevada, another state without gender bias crime laws, a
woman befriended a man on the internet and agreed to meet him.
For security reasons she insisted that he meet her at her
parents home, where she lives. He and another man came to the
home, handcuffed her, stuffed her into the trunk of the car,
kidnaped, raped and assaulted her. They then drove her home,
and told her that no one would ever believe her. When she
reported the assault, local police allegedly laughed at her,
called her a liar, and told her that if she was lying she would
have to pay for the cost of the lab tests. The matter was not
pursued until months later when a second victim, a seventeen
year old girl, was lured to the man's apartment, raped and
escaped half naked. Four other women reported similar treatment
by the local authorities.
As these cases demonstrate, some gender-based crimes contain all
the earmarks of other bias crimes--such as biased epithets or comments,
patterns of behavior, and lack of any other apparent motive. Some cry
out for federal intervention to fill needed gaps when state law
enforcement proves ineffective. While most gender-based bias crimes
should continue to be prosecuted at the state level, and while
resources should continue to be directed to improving the formal and
informal responses of local law enforcement officials, federal
assistance still is required in appropriate cases, to ensure that
justice is served.
federal action is needed to respond to limitations in state law
enforcement
While states have made much progress in their responses to gender-
based crimes, state law enforcement's failure to adequately recognize
and address gender-motivated crimes unfortunately continues to pose
substantial, and sometimes life-threatening obstacles for women.\5\ The
1994 VAWA took the first step in ameliorating the problem of formal and
informal failings of state laws.\6\ But reports of state task forces
looking at gender bias, issued since VAWA's passage, reveal that these
problems, remain entrenched. For example, the 1996 report of the North
Dakota Commission on Gender Fairness in the Courts indicates that women
still are subjected to victim blaming, trivialization and stereotyped
views of their credibility in criminal and civil domestic violence
proceedings.\7\ In one instance, a judge informed a battered woman
seeking a protective order that she would one day realize that it was
all ``her fault.'' \8\ A member of the Minnesota Supreme Court Gender
Fairness Implementation Committee in 1997 reported that domestic
assaults persistently are plea bargained down to disorderly conduct
offenses and that the state law requiring presentence investigations in
domestic assault situations is consistently ignored.\9\ She similarly
noted that judges fail to apply appropriate sanctions for failures to
comply with probation or treatment requirements in domestic violence
cases.\10\
---------------------------------------------------------------------------
\5\ For example, in enacting VAWA Congress cited study after study
concluding that crimes disproportionately affecting women are treated
less seriously than comparable crimes affecting men. See, e.g., Ericson
v. Syracuse Univ., 98 Civ. 3435, 1999 U.S. Dist. LEXIS 5225, at p.3 n.1
(S.D.N.Y. Apr. 13, 1999) (recounting reports of gender-bias task
forces); 1993 Senate Report, at 49; (citing studies of state gender-
bias task forces); 1991 Senate Report, at 46-47, 49. Congress also
recognized that police, prosecutors, juries and judges routinely
subject female victims of rape and sexual assault as well as domestic
violence to unfair and degrading treatment that contributes to the low
rates of reporting and conviction that characterize these crimes. See,
e.g. 1993 Response to Rap at 2-6; accord Violence Against Women:
Hearing Before the subcomm. On Crime and Criminal Justice of the House
Comm. On the Judiciary, 102d Cong. 63, at 75 (1992) (``1992 Violence
Against Women Hearing''); (statement of Margaret Rosenbaum, Assistant
State Attorney and Division Chief, Domestic Crimes Unit, Miami,
Florida) (recognizing that police officers persist in failing to treat
domestic violence as a ``real crime''); 1991 Senate Report, at 39;
Violence Against Women: Hearing Before the Subcomm. On Crime and
Criminal Justice of the House Comm. On the Judiciary. 102d Cong. 63, at
75 (1992) (``1992 Violence Against Women Hearing''); Women and
Violence: Hearing Before the Senate Comm. on the Judiciary, 101st Cong.
29-30 (1990) (statement of Marla Hanson).
\6\ For VAWA's legislative history documenting Congress'
recognition of state judicial systems' long histories of treating
gender-based crimes less seriously than other crimes warranted federal
intervention, see, e.g., 1993 Senate Report, at 42. See also Staff of
Senate Comm. on the Judiciary, 103d Cong., The Response to Rape:
Detours on the Road to Equal Justice 1-2 (Comm. Print 1993) (``1993
Response to Rape''); S. Rep. No. 102-197, at 43-48 (1991) (``1991
Senate Report'').
\7\ A Difference in Perceptions: The Final Report of the North
Dakota Comm'n on Gender Fairness in the Courts, 72 N.D. L. Rev. 1113,
1208-12 (1996).
\8\ Id. at 1208.
\9\ Letter from Judge Mary Klas to National Assoc. of Women Judges
(Aug. 26, 1997) (on file with NOW LDEF).
\10\ Id. at 2. See also Alaska Joint State-Federal Courts Gender
Equality Task Force, Final Report 22, 44 (April 1996) (recognizing
prevalence of gender bias and tendency of magistrates and judges to
rely on subjective factors rather than evidence when deciding whether
to issue domestic violence protective orders).
---------------------------------------------------------------------------
The need for federal jurisdiction as a remedy to states' failed
responses to gender-based crimes starkly echoes the impetus in 1968 for
the passage of 18 U.S.C. Sec. 245. At that time, state criminal laws
purportedly provided protection from bias-related violent crimes, but
it became increasingly apparent that those laws were being unevenly
enforced with respect to race. Those who enacted Section 245 recognized
that ``[u]nder the Federal system, the keeping of the peace is, for the
most part, a matter of local and not Federal concern.'' \11\ Yet,
unchecked violence against African-Americans led Congress to enact a
federal remedy. According to the Senate Report:
---------------------------------------------------------------------------
\11\ S. Rep. No. 90-721, reprinted in 1968 U.S.C.C.A.N. 1837, 1839.
[L]ocal officials have either been unable or unwilling to
solve and prosecute crimes of racial violence or to obtain
convictions in such cases--even where the facts seem to
warrant. As a result, there is need for Federal action to
compensate for the lack of effective protection and prosecution
on the local level.\12\
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\12\ Id., reprinted in 1968 U.S.C.C.A.N. 1840.
States' uneven responses to gender-based violent crimes similarly
---------------------------------------------------------------------------
supports amending Section 245 today to permit federal prosecution.
Unfortunately, an extensive body of case law confirms that time and
again violence, injury and death might have been prevented but for the
neglect, inaction, bias or complicity of local police and police
department policies.\13\ Appropriate federal intervention could have
saved lives.
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\13\ ``See, e.g., Soto v. Flore, 103 F.3d 1056 (1st Cir. 1997)
(batterer killed his two children and then himself after police, who
were his friends, refused to arrest him despite mandatory arrest law),
cert. denied, 118 S.Ct. 71 (1997); Navarro v. Block, 72 F.3d 712 (9th
Cir. 1995) (batterer killed his wife and four others after police
refused to respond to her call for help, even though she told
dispatcher about restraining order and that he was headed to the house
to kill her); Pinder v. Johnson, 54 F.3d 1169 (4th Cir. 1995) (batterer
burned former girlfriend's house, killing her three children, following
battering incident, after which police assured her that he would be
held in jail overnight but released him instead); accord Eagleston v.
Guido, 41 F.3d 865 (2d Cir. 1994); Ricketts v. City of Columbia, 36
F.3d 775 (8th Cir. 1994); Brown v. Grabowski, 922 F.2d 1097 (3d Cir.
1990); Raucci v. Town of Rotterdam, 902 F.2d 1050 (2d Cir. 1990);
Balistreri v. Pacifica Police Dep't., 901 F.2d 696 (9th Cir. 1988);
McKee v. City of Rockwell, 877 F.2d 409 (5th Cir. 1989); Watson v. City
of Kansas City, 857 F.2d 690 (10th Cir. 1988); Smith v. City of Elyria,
857 F. Supp. 1203 (N.D. Ohio 1994).
---------------------------------------------------------------------------
adding gender to section 245 also is consistent with international law
The HCPA's inclusion of gender comports with the United States'
obligations as a signatory to the International Covenant on Civil and
Political Rights (``ICCPR''), to provide broad protection against
gender-based violence.\14\ International human rights standards have
adopted that customary norm under which gender-based violence is
recognized as an impermissible form of discrimination for which all
countries are obligated to provide remedies.\15\ The HCPA is thus
consistent with and would mark a step towards compliance with these
international human rights standards.
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\14\ International Covenant on Civil and Political Rights, opened
for signature Dec. 16, 1966, S. Treaty Doc. No. 95-2, 999 U.N.T.S. 171
(ratified by United States on June 8, 1992) (creating protections
through guaranteeing freedom of liberty and security of person, the
right to be free from torture or cruel, inhuman, or degrading treatment
and equal and effective protection against discrimination, inter alia,
on the basis of sex).
\15\ See, e.g., Compilation of General Comments and General
Recommendation Adopted by Human Rights Treaty Bodies, at General
Recommendation 19, p. 112 U.N. Doc. HRI/GEN/1/Rev. 2 (29 March 1996)
(referencing United Nations Committee on the Elimination of All Forms
of Discrimination Against Women (``CEDAW'')); Inter-American Convention
on the Prevention, Punishment, and Eradication of Violence Against
Women, opened for signature 9 June 1994, 3 IHRR 232 (adopted by
acclamation of the General Assembly of the Organization of American
States).
---------------------------------------------------------------------------
determining gender-motivation
In order to ensure that federal resources are used appropriately,
the HCPA only would apply to cases in which prosecutors could establish
that the crime was committed because of gender bias, rather than
another non-discriminatory or random motive. Assessing when acts of
violence against women are gender-motivated is not a novel inquiry,
particularly for federal courts. If Section 245 is amended to include
gender, prosecutors and courts evaluating criminal bias crime
allegations can employ the same analysis used in other civil rights and
discrimination cases to determine whether a particular violent act was
committed because of the victim's gender.
Courts already assess whether violent acts were gender-motivated in
other contexts. For example, a series of discriminatory epithets
combined with evidence of discriminatory views about women led one
court to recognize a gender-based conspiracy by anti-abortion
protestors that violated 42 U.S.C. Sec. 1985(3) (``Section 1985(3)''),
the federal statute prohibiting conspiracies to violate an individual's
civil rights.\16\ A few other courts have recognized that sexual
harassment and discrimination at work could reflect gender-motivated
conspiracies that also violate Section 1985(3).\17\ Courts also have
begun to recognize that sexual assaults and domestic violence may be
forms of gender-motivated violence that violate the Civil Rights Remedy
of the 1994 Violence Against Women Act.\18\
---------------------------------------------------------------------------
\16\ See Libertad v. Welch, 53 F.3d 428, 449 (1st Cir. 1995).
\17\ See, Saville v. Houston County Healthcare Auth., 852 F. Supp.
1512, 1537-40 (M.D. Ala. 1994); Larson v. School Bd. of Pinellas
County, 820 F.Supp. 596, 602 (M.D. Fla. 1993).
\18\ See, e.g., Brzonkala v. Virginia Polytechnic, 132 F. 3d 949
(4th Cir. 1997) (gang rape with comments evincing gender-bias), rev'd
on other ground, 1999 U.S. App. LEXIS 3457, No. 96-1814 (4th Cir. en
banc Mar. 5, 1999); Culberson v. Doan, No. C-1-97-965 (S.D. Ohio Apr.
8, 1999) (allegations of domestic violence with circumstantial evidence
gender bias); Liu v. Striuli, No. 96-0137 L, 1999 WL 673629 (D.R.I.
Jan. 19, 1999) (allegations of rapes of graduate student by professor
with lewd comments, threats and lack of other apparent motive); Ziegler
v. Ziegler, 28 F. Supp. 2d 601 (D. Wa. 1998) (allegations of domestic
violence with gender-specific epithets, acts that perpetuated
stereotypes of women's submissive role, attacks during pregnancy and at
times when plaintiff asserted her independence); Kuhn v. Kuhn, No. 98 C
2395, 1998 WL 673629 (N.D. 111. Sept. 16, 1998) (allegations of
criminal sexual assault by husband with evidence of derogatory gender
based comments); Mattison v. Click Corp., No. 97-CV-2736, 1998 U.S.
Dist. LEXIS 720, at *23 (E.D. Pa. Jan. 27, 1998) (sexual assault,
sexual harassment and battering by supervisor); Crisonino v. New York
City Housing Auth., 985 F. Supp. 385 (S.D.N.Y. 1997); Anisimov v. Lake,
982 F. Supp. 531 (N.D. Ill. 1997) (inappropriate sexual advances,
including fondling, attempting to remove clothing, grabbing breasts,
assault and rape by boss); cf, McCann v. Rosquist, No. 2:97-CV-0535-S,
1998 U.S. Dist. LEXIS 3685 (D. Utah Mar. 19, 1998) (stating that sexual
assault and harassment by boss were gender-motivated while rejecting
claims on other grounds).
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Similarly, in evaluating sexual harassment claims brought under
Title VII of the Civil Rights Act of 1964 (``Title VII''), courts
routinely analyze the totality of the circumstances to assess whether
the offensive conduct was committed because of the victim's gender.\19\
Applying that test to allegations of workplace sexual harassment,
courts have found certain conduct to be indicative of gender
motivation. That conduct includes: repeated lewd or sexually suggestive
comments;\20\ derogatory epithets or nicknames ;\21\ display of
pornographic pictures that was part of a pattern of harassment;\22\
comments reflecting negative and stereotypical views of women;\23\ or
patterns of similar conduct toward other women.\24\ Looking at the
totality of the circumstances, courts analyzing workplace sexual
harassment cases specifically have concluded that rapes or sexual
assaults at work may reflect sufficient gender-motivation to create a
hostile environment.\25\ Applying the same type of analysis, courts can
analyze whether rapes or sexual assaults reflected gender-motivation
under HCPA.
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\19\ See, e.g., Oncale v. Sundowner Offshore Servs., Inc., 118
S.Ct. 998 (1998); Harris v. Forklift Sys., Inc., 114 S.Ct. 367 (1993);
Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).
\20\ See EEOC v. Hacienda Hotel, 881 F.2d 1504, 1514-15 (9th Cir.
1989) (sexual remarks, vulgarities, requests for sexual favors and
disparaging comments about pregnancy created a hostile environment);
Bundy v. Jackson, 641 F.2d 934, 944-45 (D.C. Cir. 1982) (sexually
stereotyped insults and demeaning propositions created a hostile
environment).
\21\ See, e.g., Carr v. Alison Turbine, 32 F.3d 1007, 1009 (7th
Cir. 1994 (derogatory sexual remarks, sexual epithets, playing sex- or
gender-related ``pranks'' contributed to hostile environment); EEOC v.
A. Sam & Sons Produce Co., 872 F. Supp. 29, 34 (W.D.N.Y. 1994)
(evidence included company vice-president's repeated references to
female co-worker as a ``* * *'').
\22\ See, e.g., Andrews v. City of Philadelphia, 895 F.2d 1469,
1482 n.3 (3rd Cir. 1990).
\23\ See, e.g., Harris, 114 U.S. at 369 (``you're a woman, what do
you know?''); cf. Price Waterhouse v. Hopkins, 490 U.S. 228, 235-36,
288 (1989) (sex discrimination case in which woman was charged with
being ``overly aggressive, unduly harsh,'' ``macho'' and directed to go
to charm school because ``it's a lady using foul language'').
\24\ See, e.g., Paroline v. Unisys Corp., 879 F.2d 100, 103 (1989),
vacated in part on other grounds, 900 F.2d 27 (4th Cir. 1990) (several
female clerical workers subjected to pattern of sexually suggestive
remarks and unwelcome touching).
\25\ See, e.g., Brock v. United States, 64 F.3d 1421, 1423 (9th
Cir. 1995) (``every rape committed in the employment setting is also
discrimination based on the employee's sex''); Tomka v. Seiler Corp.,
66 F.3d 1295, 1305 (2d Cir. 1995) (``even a single incident of sexual
assault sufficiently alters the conditions of the victim's employment
and clearly creates an abusive work environment''); Yaba v. Roosevelt,
961 F. Supp. 611, 620 (S.D.N.Y. 1997) (sexual assault and harassment by
law firm partner created a hostile work environment); Al Dabbagh v.
Greenpeace, Inc., 873 F. Supp. 1105, 1110-11 (N.D. Ill. 1994) (pattern
of sexual assaults at work created a hostile environment).
---------------------------------------------------------------------------
Bias crimes based on race, color, religion or national origin that
have been prosecuted under Section 245 and under Section 1985(3) also
show that federal courts readily analyze the circumstances surrounding
violent incidents to determine whether they were motivated by bias.
Courts have relied on evidence similar to that cited in the cases
described above: racial slurs or epithets;\26\ derogatory comments
about members of a particular race made in connection with the violent
incident;\27\ prior acts and statements reflecting racial
animosity;\28\ prior acts of violence committed against the members of
a protected group;\29\ and membership in a group espousing racially
biased views.\30\ Undoubtedly, courts can analyze similar types of
evidence to determine whether and when violent crimes committed against
women were gender-motivated.
---------------------------------------------------------------------------
\26\ See, e.g., United States v. Makowski, 120 F.3d 1078, 1080 (9
Cir. 1997); United States v. Dunnaway, 88 F.3d 617, 618 (8th Cir.
1996); Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987);
Fisher v. Shambur , 624 F.2d 156, 158 (10th Cir. 1980); Lac Du Flambeau
v. Stop Treaty Abuse, 843 F. Supp. 1284, 1292-93 (W. D. Wis.), aff'd,
41 F. 3d 1190 (7th Cir. 1994), cert. denied, 514 U.S. 1096 (1995); Hawk
v. Perillo, 642 F. Supp. 380, 392 (N.D. Ill. 1985).
\27\ See, Griffin v. Breckenridge, 403 U.S. 88, 103 (1971);
Makowski, 120 F.3d at 1080; United States v. Bledsoe, 728 F.2d 1094,
1095 (8th Cir. 1984); United States v. Franklin, 704 F.2d 1183, 1186
(10th Cir. 1983); Johnson v. Smith, 878 F. Supp. 1150, 1155 (N.D. Ill.
1995).
\28\ See, e.g., United States v. Woodlee, 136 F.3d 1399, 1410 (10th
Cir. 1998); United States v. Dunnaw, 88 F.3d 617, 618 (8th Cir. 1996);
United States v. Lane, 883 F.2d. 1484, 1496 (10th Cir. 1989).
\29\ See, e.g., United States v. Bledso, 728 F.2d 1094, 1098 (8th
Cir. 1984); United States v. Franklin, 704 F.3d 1183, 1187 (10th Cir.
1983).
\30\ See, e.g., United States v. Dunnaway, 88 F.3d 617, 618 (8th
Cir. 1996).
---------------------------------------------------------------------------
not all violent crimes against women will be prosecuted under the hcpa
Since the HCPA is a limited federal remedy, it would not authorize
Section 245 to be used in every crime of violence committed against a
woman or even in every case of sexual assault. Just as not all crimes
committed against racial, religious or sexual minorities constitute
bias crimes, only those crimes containing evidence of gender-bias would
be subject to federal prosecution.\31\ Generally-accepted guidelines
for identifying bias crimes direct courts to look at a range of
factors, including language, severity of the attack, absence of another
apparent motive, patterns of behavior, and ``common sense.'' \32\
Congress recognized the applicability of those guidelines to gender-
motivated crimes when it enacted the 1994 VAWA.\33\ Drawing from these
guidelines, prosecutors and courts can evaluate the totality of the
circumstances in gender-based bias crime allegations to determine which
cases contain sufficient evidence that the crimes were committed
because of the victim's gender, and therefore, are subject to federal
prosecution.
---------------------------------------------------------------------------
\31\ See generally Anti-Defamation League, Hate Crimes Laws 2-3
(1997); Northwest Women's Law Center et al., Gender Bias Crimes: A
Legislative Resource Manual 12-14 (1994).
\32\ See U.S. Dep't of Justice, Federal Bureau of Investigation,
Hate Crime Data Collection Guidelines 1-4; Center for Women Policy
Studies, Violence Against Women as Bias Motivated Hate Crime: Defining
the Issues 8-12 (1991).
\33\ See S. Rep. No. 103-138, at 53 n.61 (1993) (``1993 Senate
Report'').
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HCPA contains two additional limitations on the cases that would be
subject to prosecution. First, Section 245's certification requirement
preserves the states' primary role in prosecuting criminal laws by
requiring the Attorney General to certify that each prosecution is ``in
the public interest and necessary to secure substantial justice.\34\ In
addition, the bill only authorizes prosecutions of bias crimes based on
gender, sexual orientation or disability where the crime is connected
to interstate commerce.\35\
---------------------------------------------------------------------------
\34\ 18 U.S.C. Sec. 245(a)(1).
\35\ See S. 622 (4)(2)(B); H.R. 1082 (4)(2)(B).
---------------------------------------------------------------------------
adding gender to 18 u.s.c. Sec. 245 is constitutional
Adding gender to the protected groups against whom bias crimes may
be prosecuted is well grounded in Congress' constitutional authority.
Courts have upheld Section 245 as a valid exercise of Congress' power
under the Commerce Clause, the Thirteenth Amendment and Section 5 of
the Fourteenth Amendment.\36\ Since it regulates conduct and not
speech, it implicates no first amendment rights.\37\
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\36\ See, e.g., United States v. Lane, 883 F.2d 1484 (10th Cir.
1989) (Commerce Clause); United States v. Bledso , 728 F.2d 1094 (8th
Cir. 1984) (13th and 14th Amendments).
\37\ The Supreme Court has upheld against first amendment-based
challenges the constitutionality of bias-crime statutes that regulate
conduct and not speech. See Wisconsin v. Mitchell, 508 U.S. 476, 487-90
(1993).
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Most important, since any gender-based prosecutions would require
proof that the offense had some impact on or was committed in
connection with any activity involved in or affecting interstate
commerce, there can be no doubt that HCPA firmly is grounded in
Congress' Commerce Clause powers.\38\ The Supreme Court has upheld the
constitutionality of statutes like HCPA, which require the crossing of
a state line, because they regulate conduct that squarely is in
interstate commerce.\39\ Courts have upheld analogous criminal
provisions of the 1994 Violence Against Women Act against
constitutional challenges, finding them within Congress' Commerce
clause powers because both felonies contain a jurisdictional
requirement similar to that in the HCPA.\40\ Courts have uniformly
upheld other similar federal criminal statutes containing
jurisdictional elements as well.\41\ Moreover, HCPA poses none of the
federalism issues that concerned the Supreme Court in Lopez,\42\
because civil rights enforcement is an area of traditional federal
jurisdiction.\43\
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\38\ Congress' Commerce Clause authority includes three categories
of permissible regulation: (1) regulation of the channels of interstate
commerce; (2) regulation of persons and things in interstate commerce;
and (3) regulation of activity that substantially affects interstate
commerce. United States v. Lope, 514 U.S. 549, 558-59 (1995).
\39\ See Lope, 514 U.S. at 562 (noting that jurisdictional element
would ensure an otherwise-ambiguous statute's connection with
interstate commerce); Cleveland v. United States, 329 U.S. 14 (1946)
(upholding Mann Act, which regulates regulating interstate transport of
a woman or girl for immoral purposes); Caminetti v. United States, 242
U.S. 470 (1917) (upholding White Slave Traffic Act, which regulates
interstate transport of another for purposes of debauchery).
\40\ See, e.g., United States v. Page, 167 F. 3d 325 (6th Cir.
1999); See, e.g., U.S. v. Hayes, 135 F.3d 133 (2d Cir. 1998); United
States v. Von Foelkel, 136 F.3d 339 (2d Cir. 1998); United States v.
Wright 128 F.3d 1274 (8th Cir. 1997), cert. denied, 118 S.Ct. 1376
(1998); United States v. Bailey, 112 F.3d 758 (4th Cir.), cert. denied,
118 S.Ct. 240 (1997). While a jurisdictional element is not required,
its presence in the HCPA eliminates concerns that have arisen in
challenges to the VAWA Civil Rights Remedy, 42 U.S.C. Sec. 13981, which
contains no such jurisdictional element.
\41\ See, e.g., United States v. Cobb, 144 F.3d 319 (4th Cir. 1998)
(federal car jacking statute); United States v. Well, 98 F.3d 808, 810-
11 (4th Cir. 1996) (federal firearms statute); United States v.
Robinson, 119 F.3d 1205, 1214 (5th Cir. 1997), cert. denied, 118 S.Ct.
1104 (1998) (Hobbs Act, which criminalizes interstate robbery or
extortion); United States v. Corona, 108 F.3d 565, 570-71 (5th Cir.
1997) (federal arson statute).
\42\ See, e.g., 514 U.S. at 567.
\43\ See, e.g., City of Riverside v. Rivera, 477 U.S. 561, 575
(1986) (noting ``highest importance'' of vindicating civil rights
violations).
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conclusion
Women's continued subjugation to gender-motivated bias crimes
combined with the limitations of state law enforcement systems provide
compelling justification to amend Section 245 to include gender as one
of the protected categories. Existing case law and standards for
federal prosecution of other bias crimes show that discerning which of
the violent crimes committed against women are committed because of the
victims' gender is not a novel, unique, or overwhelming inquiry, but
draws on analytical tools familiar to federal courts in similar
contexts. Including gender in Section 245 will provide redress to women
currently denied access to criminal justice and will substantially
advance our country's efforts to fight this devastating epidemic of
violence against women.
______
Real-Life Gender Bias Crimes
The following are all true stories of violence against real women
summarized from newspaper articles and court cases. These examples have
been identified as gender-bias crimes by using the widely accepted FBI
guidelines for identifying bias crimes. Under these guidelines,
analysts use common sense and look at a range of factors, including
whether there is: a history of misogynistic behavior, a pattern of
assaulting women, sexual violence, bias language, epithets, extreme
brutality, mutilation and seemingly motiveless cruelty that
characterizes bias crimes.\1\ While a few of these examples demonstrate
that states with gender bias crime laws are able to identify violence
motivated by gender bias, others demonstrate why federal jurisdiction
over these crimes is imperative.
---------------------------------------------------------------------------
\1\ See U.S. Dep't of Justice Federal Bureau of Investigation, Hate
Crimes Data Collection Guidelines 1-4; Northwest Women's Law Center et
al., Gender Bias Crimes: A Legislative Resource Manual 12-14 (1994);
Center for Women Policy Studies, Violence Against Women as Bias
Motivated Hate Crimes: Defining the Issues 8-12 (1991). Decisions
analyzing other civil rights laws, such as Title VII or 42 U.S.C.
Sec. 1985 (3) also demonstrate how circumstantial evidence can
establish bias motivation underlying violent acts.
---------------------------------------------------------------------------
Arkansas: A woman's badly mutilated body was discovered just two
days after her second wedding anniversary. She had been stabbed
approximately 130 times in the breasts, vagina, buttocks, eyes and
forehead. Her husband was ultimately charged with the murder.\2\
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\2\ Suzanne Pharr, ``Hate Violence Against Women: A Long Killing
Season,'' Violence Against Women (National Network of Women's Funds,
Spring 1991).
---------------------------------------------------------------------------
California: On November 3, 1998, a man was arrested after walking
into the Humboldt County Sheriff's Department and admitting that he had
``hurt a lot of people.'' He pulled a woman's severed breast from his
coat pocket, saying the evidence was ``the tip of the iceberg.'' The
man confessed to killing four women, describing how he picked up one
woman as she walked near a shopping mall. He decapitated her, severed
her arms and breasts and cooked one breast in the oven. He burned the
woman's clothing and disposed of her body parts in various locations.
Her nude torso was discovered 12 days later in a slough. The man
admitted to authorities that he often picked up prostitutes and other
women and that it was not uncommon for women to stop breathing while
they were having sex with him.\3\
---------------------------------------------------------------------------
\3\ Trucker Describes Slaying to Jury,'' The Eureka Times-Standard
( April 8, 1999).
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Connecticut: Two police officers have been charged with having
coerced sexual favors from women under threat of arrest. While in
uniform and on duty, Officer Rivera is alleged to have repeatedly
coerced five different women to engage in sexual acts under threat of
arrest. He forced one woman into his police vehicle and took her to a
remote location, ordered her to pose nude while lewd photos were taken
and forced her to engage in fellatio. He forced another to lie on the
seat of the vehicle while he masturbated over her face and chest,
forced her to masturbate with the police baton, and to engage in
fellatio. He coerced another into engaging in sexual acts in exchanged
for promises that his official actions would be influenced thereby. He
grabbed another woman who was walking with her minor daughter, forced
her into his patrol car, and told her: ``* * *, you are going to
jail.'' ``You * * *. One of these days you are going to suck my * * *
and my * * *'' and forcibly ejected her from the car. Officer Basile is
alleged to have: forced a woman into his vehicle, driven her to a
remote location and coerced her to engage in fellatio with him, under
threat of arrest; coerced another to engage in fellatio with him, under
threat of arrest; and coerced yet another woman to engage in fellatio
with him on numerous occasions, also under threat of arrest. While
these two officers have pleaded innocent to these charges, a third
officer who was present and did not intervene in the incidents has
pleaded guilty to aiding and abetting the officers, and a fourth man, a
former officer, pleaded guilty to providing the camera that was used to
take the lewd photos of the first victim.\4\
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\4\ U.S. v. River No. 3:99CR63AWT (D. Conn. Apr. 8, 1999) (Grand
Jury Indictment); U.S. v. Basile No.3:99CR64AWT (D. Conn. Apr. 8, 1999)
(Grand Jury Indictment).
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Illinois: Upon his confession, a man was convicted for the horrific
murder of a 21 year old woman who was abducted on her way to work and
whose mutilated body was later found in a cemetery. Authorities believe
the man belonged to a cult blamed for the kidnappings, rapes, and
mutilation murders of 18 Chicago-area women in the early 80's.\5\
---------------------------------------------------------------------------
\5\ ``IL Executes Man for 1982 Murder,'' The Associated Press
(March 17, 1999).
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Florida: The media reported that a serial murderer ``has a taste
for petite brunettes.'' One by one, the bodies of his women victims
were discovered horribly mutilated. Women in the community slept in
groups with guns. According to USA Today, women left the college town
by the hundreds, many refusing to return. The murderer was eventually
identified when his DNA matched semen from the crime scenes.\6\
---------------------------------------------------------------------------
\6\ Deborah Sharp, ``Trial begins in college slayings,'' USA TODAY,
p. 3A (February 14, 1994).
---------------------------------------------------------------------------
Florida: A woman ran from a fraternity house, naked and crying. She
called the police, alleging that she had been raped and that it had
been videotaped. The police found the video tape in which at least one
man assaulted the woman while several of his fraternity ``brothers''
commentate for the video, stating ``This is what you call * * * Rape,
Rape, Rape, Rape white trash,'' ``The night we rape a white-trash
crack-head * * *,'' ``It is Rape-thirty in the morning,'' and ``Notice
the struggle of the hands.'' After viewing the video, local police
claimed the video clearly demonstrated consent and arrested the woman
for making a false report. The men 7 have not been arrested.\7\
---------------------------------------------------------------------------
\7\ See Statement of UF/SFCC Campus NOW (April 1, 1999) (on file
with NOW LDEF); Brian Geller, ``Videotape a Focus of Controversy,''
Gainesville Sun (April 2,1999).
---------------------------------------------------------------------------
Maine: A serial batterer was found to have violated that state's
civil bias law for his bias crimes against women. Two former
girlfriends and his ex-wife recounted his abuse, including severe
physical battering, death threats, assault on his wife while she was
pregnant, constant slurs and profanities, calling the women ``* * *,''
``* * *,'' and ``* * *,'' and telling them that they made him sick. He
was ordered to stay away from the three women and to refrain from
violence against other women.\8\
---------------------------------------------------------------------------
\8\ Maine v. Cabana No. CV-98-034 (Maine Sup. Ct. Feb. 9, 1998).
---------------------------------------------------------------------------
Massachusetts: A Massachusetts state court found a serial
batterer's abuse constituted bias crimes against women under the
state's bias crime law. Four women testified that his abuse included
severe physical battering, rape, death threats, unlawful restraint and
constant verbal abuse. He called the women ``* * *,'' ``* * *'', and
``* * *'', and made derogatory comments that they and all women are
weaker than men, and not as smart as men.\9\
---------------------------------------------------------------------------
\9\ Massachusetts v. Aboulez No. 94-0984H (Mass. Sup. Ct. Mar. 14,
1994).
---------------------------------------------------------------------------
Michigan: A young woman was severely and repeatedly beaten by her
husband. He kicked her with steel-toed boots, broke her arm, and
repeatedly penetrated her vagina with the barrel of a loaded handgun,
all the while threatening to kill her. After she left him he stalked,
harassed, threatened, and assaulted her. She filed for divorce and got
an order of protection, but the police refused to enforce the order.
One day as she was on her way to work, he abducted her in public at gun
point. He battered her, raped her repeatedly, and attempted to take her
across state lines. She escaped and her testimony got him convicted.
Four and one-half years later he was released from prison. Two weeks
after that, he was back stalking, threatening, and harassing her.
Perhaps realizing that the law does not protect her and those like her,
the commission granted her an unrestricted license to carry a concealed
weapon.\10\
---------------------------------------------------------------------------
\10\ Pam Maples, ``Domestic Violence: Old Problem, New Attitudes;
Attacks on Women are a Form of Hate Crime, Many Feminists Argue,'' p4B
St. Louis Dispatch (June 13, 1993).
---------------------------------------------------------------------------
Nevada: A woman befriended a man on the internet and agreed to meet
him, but for security reasons insisted that he meet her at her parents
home, where she lives. He and another man came to the home, handcuffed
her, stuffed her into the trunk of the car, kidnapped, raped and
assaulted her. They then drove her home telling her that no one would
believe her. When she reported the assault, local police laughed at
her, called her a liar, and told her that if she was lying she would
have to pay for the cost of the lab tests. The case was not pursued
until months later after a second victim, a seventeen year old girl,
was lured to the same man's apartment, raped and escaped half naked.
After learning how the case was handled, four other women in the
community reported similar treatment by the local authorities.\11\
---------------------------------------------------------------------------
\11\ The Associated Press, ``Woman: Nev. Cops Called Me a Liar,''
Newsday, p. A24 (March 24,1999).
---------------------------------------------------------------------------
New Hampshire: Although convicted on five occasions for assaulting
one woman, a batterer never served time for the assaults. Upon his next
misdemeanor assault conviction, a trial court judge held that the
batterer had a pattern of assaulting, terrorizing, and demeaning women
and that his actions were motivated by gender bias. The judge used the
state hate crime law to impose a sentence of more than double the jail
time that would have otherwise been given for a misdemeanor assault
conviction. As a result, the man will now serve two to five years in
jail.\12\
---------------------------------------------------------------------------
\12\ Laura Kiernan, ``N.H. Judge Applies Hate-Crimes Law in Case of
Man's Assault on Woman,'' The Boston Globe, p.38 (June 13, 1993).
---------------------------------------------------------------------------
Washington: Raped, restrained, battered, disfigured, threatened
with a loaded shotgun, and verbally threatened and harassed upon
attempting to leave, a Washington woman sought justice from the legal
system. She sued her ex-husband under the VAWA civil rights remedy. The
federal court judge found that the allegations of rape and sexual
violence were sufficient to conclude that the violence was gender
motivated. These allegations included gender-specific epithets, acts
that perpetuated stereotypes of a woman's submissive role, severe and
excessive attacks, especially during pregnancy, and acts of violence
committed without provocation and at times when the plaintiff asserted
her independence.\13\
---------------------------------------------------------------------------
\13\ Ziegler v. Ziegler No. CS-97-0467-WFN (E.D. Wa. Sept. 24,
1998).
---------------------------------------------------------------------------
Virginia: A college student was raped in her dorm three times by
two men within minutes of first meeting them. During a college
disciplinary hearing, one of the men conceded that she twice told him
``no'' before he raped her. The young woman eventually dropped out of
school and returned home after the school permitted one of the alleged
assailants to return on a full athletic scholarship with no discipline
other than being required to attend a one-hour educational session.
Although her VAWA civil rights case against the men was eventually
dismissed on other grounds, each court to analyze the facts found
evidence of gender bias. Indeed, one judge said the case had ``all the
earmarks of a hate crime.'' \14\
---------------------------------------------------------------------------
\14\ Brzonkala v. Virginia Polytechnic and State Univ. 132 F.3d
949, 963 (4th Cir. 1997), rev'd on other grounds, 169 F.3d 820 (4th
Cir. en--banc 1999).
---------------------------------------------------------------------------
__________
Prepared Statement of Riki Anne Witchins
My name is Riki Anne Wilchins, and I serve as the Executive
Director of the Gender Public Advocacy Coalition (``GenderPAC''), which
is an association of groups that share the goal of eliminating
discrimination based upon gender, race and affectional preference. On
behalf of GenderPAC, I want to thank Senator Hatch for holding this
hearing on the subject of S. 622, the Hate Crimes Prevention Act (the
``HCPA''), and for providing GenderPAC and other interested parties an
opportunity to submit written testimony concerning the HCPA. GenderPAC
strongly supports the HCPA, and we wish to thank Senator Kennedy and
his colleagues in the Senate who are sponsoring this important
legislation.
GenderPAC collects reports of apparent hate crimes directed against
persons whose physical appearance and/or manner of self-expression do
not conform to our culture's bimodal (i.e., male or female)
heterosexual norms and racial/ethnic stereotypes. The at-risk
population to which I am referring includes not only mannish-appearing
heterosexual women and feminine-appearing heterosexual men, but also
persons who identify as gay, lesbian, bisexual, transgendered and/or
intersexed, particularly those who are economically marginalized and/or
persons of color. Millions of Americans fall within this group.
Recently we have noted an increase in the frequency and viciousness
of incidents directed against this population. For example, in January
1999, 18-year old Donald Scott Fuller, who also was known as ``Lauryn
Paige,'' was brutally stabbed to death in Austin, Texas. Among the
multiple stab wounds on Fuller's body was a cut across his throat nine
inches long and three inches wide. In October, 1998, Matthew Shepard, a
young gay man, died in Laramie, Wyoming after he was beaten nearly to
death with a pistol and crucified on a fence.
Matthew's case illuminates the complexity of these incidents. His
murder was portrayed as a hate crime directed against sexual
orientation. Yet Matthew, like so many gay hate crime victims, also was
small, blond, and slight in stature. That is, Matthew may have been
targeted not only because of his sexual orientation, but also because
of his ``feminine'' gender characteristics.
These incidents and the many others like them merely are the most
recent in a long and distressing stream of murders apparently directed
against gender, affectional and/or racial difference. Unfortunately,
local law enforcement authorities often share common stereotypes about
this population, and sometimes cannot be counted upon to discharge
their investigatory and prosecutorial duties in a fair and unbiased
manner.
An incident that occurred in 1994 illustrates this problem. Brandon
Teena was an anatomically female person who self-identified and lived
as a man in Falls City, Nebraska. Brandon was raped by two men,
presumably to ``put her in her place,'' i.e., to demonstrate that he
was a woman, not a man. The local sheriff, referring to Brandon as
``it,'' refused to apprehend the rapists, and they murdered Brandon
several days later, as they had threatened to do if he told anyone
about the rape.
Because they are members of a stigmatized population, people like
Brandon Teena may encounter difficulties in obtaining the aid of local
law enforcement authorities. Consequently it is important that
alternative sources of assistance be available. The HCPA could provide
one such alternative, because it would provide the Department of
Justice with investigative and prosecutorial jurisdiction under 18
U.S.C. Sec. 245 when bias against a victim's ``actual or perceived * *
* gender [or] sexual orientation'' appears to motivate an incident
involving willfull bodily injury, in which an appropriate connection
with or affect upon interstate commerce is present.
Although I am not sufficiently acquainted with the details of
Brandon's case to understand whether it would have presented a
sufficient connection to interstate commerce, it certainly appears to
have been an incident motivated by bias against Brandon's perceived
gender (i.e., the murderers perceived Brandon as a woman transgressing
norms of gender expression and affectional preference, and apparently
killed Brandon to teach him and--from the killers' point of view--other
women like him, an object lesson about the penalty for nonconformity).
Many of us see diversity as a source of strength and adaptability
which is inextricably connected with the ideals that are central to the
American experience. To put it another way, freedom means other people
get to do what you don't like. Still, we recognize that this is a view
not shared by all Americans. Some perceive diversity as a threat, and
react to it hatefully and violently. We encourage the Senate to support
the Hate Crimes Prevention Act as a reasonable, limited, and sadly,
sometimes necessary federal response to such incidents.
Respectfully submitted,
Riki Wilchins,
Executive Director, Gender Public Advocacy Coalition.
__________
Criminal Justice Legal Foundation,
Sacramento, CA, May 7, 1999.
Senator Orrin Hatch,
Chairman, Senate Judiciary Committee
Dirkseon Office Building, Washington, DC.
Dear Senator Hatch: The Criminal Justice Legal Foundation submits
these comments regarding S. 622, the Hate Crimes Prevention Act of
1999.
As part of its mission to support the interests of victims of crime
and the law-abiding public, CJLF has supported hate-crime laws. In
particular, we filed a ``friend of the court'' brief in Wisconsin v.
Mitchell, 508 U.S. 476 (1993), supporting the constitutionality of the
Wisconsin hate-crime penalty enhancement statute and providing the
argument which appears on pages 489-490 of the opinion. However, the
bill presently before the committee raises concerns very different from
those involved in the Wisconsin case.
Crimes which one individual commits against another, with no claim
or exercise of government authority and no commercial character, are
generally matters for state and local authority. This is an essential
part of America's federal system. The matters that touch people most
closely are generally handled by the level of government closest to
them, by officials more responsive to local concerns. See The
Federalist Nos. 45 and 46 (Madison).
Exceptions to the general rule require a compelling justification.
When the local government itself deprives people of their rights or
when, by systemic failure to prosecute crimes against disfavored
groups, it deprives them of the equal protection of the laws, a strong
case can be made for federal action. No such justification exists for
the present bill, as section 2(9) effectively acknowledges.
S. 622 seeks to prevent hate crimes through deterrence. To have a
deterrent effect, the penalties must be significantly greater than
those which would otherwise be imposed, and those greater penalties
must be substantially likely to be imposed. This bill does not satisfy
the first requirement in the most egregious cases, and it does not
satisfy the second in any case.
The new 18 U.S.C. Sec. 245(c)(1), as added by section 4 of the
bill, is almost certainly unconstitutional. It has no state action or
interstate commerce requirements at all. If cases prosecuted under this
section are not dismissed in the trial court, any convictions obtained
will be reversed eventually under United States v. Lopez, 514 U.S. 549
(1995). Those cases would then have to be reprosecuted on stale
evidence by state or local prosecutors, with all the difficulties that
entails. The federal law would thus have the effect of decreasing
rather than increasing the swiftness and certainty of punishment.
The most egregious hate crimes are, of course, those in which the
victim is killed. This bill punishes such crimes by life in prison. In
most cases, that will be no increase at all, as murder is generally
punished by life in prison. In some cases, it may be a decrease in
punishment.
Hate-crime murder is a capital offense in several states. See Cal.
Pen. Code Sec. 190.2(a)(16); Del. Code, Tit. 11, Sec. 4209(e)(1)(v),
Nev. Rev. Stat. Sec. 200.033(11). In many other states, torture murder
or an equivalent is a capital offense. See, e.g., Wyo. Stat. 6-2-
102(h)(vii). For atrocious crimes such as the notorious cases in
Wyoming and Texas, this bill provides a lower penalty.
In states which have rejected the ``dual sovereignty'' doctrine,
see, e.g., Cal. Pen. Code Sec. 656, a federal prosecution will preclude
a state prosecution for the same offense. About half the states are in
this category. See 3 W. LaFave and J. Israel, Criminal Procedure
Sec. 24.5 (1984). Suppose, hypothetically, a case like the Jasper,
Texas case were to occur in California after enactment of S. 622. This
would be a capital offense under state law. See Cal. Pen. Code
Sec. 190.2(a) (16) and (18). Yet if the United States Attorney chose to
prosecute the case under the new 18 U.S.C. Sec. 245(c)(1), the maximum
penalty would be life in prison, and the state prosecution would be
precluded. In that event, this bill would have the effect of reducing
rather than increasing the penalty for hate-crime murder and torture
murder.
This hypothetical is not idle speculation. This is essentially what
happened in the notorious Unabomber case. The case fell under the
overlapping jurisdiction of state and federal courts and was prosecuted
in federal court. The United States Attorney accepted a plea bargain of
life imprisonment over the strong objection of the Sacramento District
Attorney. The Unabomber has permanently escaped the full measure of
punishment for his cowardly campaign of terror as a result of the
exercise of federal jurisdiction.
This bill is clearly drafted with good intentions in an attempt to
address a matter of grave concern. Good intentions, however, are not
enough. The measure adopted should substantially contribute to
redressing the problem. Simply transferring cases from the state to the
federal system would accomplish little, and changing capital offenses
to noncapital ones would be counterproductive.
The beginnings of a better approach lie in sections 6 and 7 of the
bill. Crimes of this type can and should continue to be prosecuted in
state court. The federal government can assist by cooperation with
local agencies, sharing information, and financial assistance. Drafting
a model statute and finding research to determine what kinds of
measures are most effective in reducing crimes of this type would also
be appropriate avenues of federal involvement.
I hope these thoughts are helpful to the committee. If I can be of
any further assistance, please do not hesitate to call.
Very truly yours,
George Deukmejian,
Vice Chairman.
__________
Michigan Citizens With Disabilities Caucus,
Detroit, MI, May 7, 1999.
Re: Our testimony before the Senate judiciary committee Hearing on the
Hate Crime Prevention Act of 1999
The Honorable Senator Orrin Hatch,
Chairman, Senate judiciary Committee,
Senate of the United States, Washington, DC.
Dear Senator Hatch: Please include this as testimony in the record
of the hearing on Hate Crimes on May 111 1999.
The Michigan Citizens With Disabilities Caucus asks you to place
additional wording in the Hate Crimes Prevention Act of 1999.
Intentionally causing death or injury of patients without
their consent or discriminatory denial of care or treatment by
doctors, health care providers, administrators or staff of
health care facilities will also be considered hate crimes,
when such acts are motivated by prejudice against a patient's
race, religion, ethnicity, sexual orientation, gender, or
disability.
We believe that so far as those with disabilities are concerned and
to a great extent for other groups it is supposed to protect, the bill
will be woefully incomplete,, unless it deals with hate crimes in
health care facilities, including the violence of involuntary
euthanasia (both active and passive).
First, it is essential to say that we support the idea of special
federal action against crimes of prejudice on the basis of disability,
gender, and sexual orientation.
Some good and intelligent people that we know argue that making a
special category of crimes for those victimized because of prejudice,
is actually a form of special treatment, because it gives them more
protection than the rest of the population. Under this argument, it
would be unfair to create a law giving a member of a racial lynch mob a
higher sentence than a common murderer. We feel this misses two points.
(1) Under our constitution, America has undertaken a commitment to
assure our citizens equal protection of the law, or in the words of
our Pledge of Allegiance ``liberty and justice for all.'' Victims
of intense and continuous prejudice are more vulnerable than the
rest if the population, more threatened. We have seen what has
happened in the old Yugoslavia. Those who are in particular
Jeopardy, because of prejudice need extra safeguards to ensure
their lives and security, if they are truly to have equal
protection of the law. If our society can give special protection
to endangered species of animals, it can certainly give special
protection to endangered groups of our citizens.
(2) Crimes of prejudice represent attempts to undermine and subvert
equal Protection of the law. They represent a special danger not
only to the individual victims, but the basic values most Americans
believe in and passionately want to live up to.
Hate crime legislation has also been criticized, because it
penalizes someone not simply for criminal acts, but for the emotions
that motivated the crime. This is far from new in our legal system. The
difference between first and second degree murder is ``Premeditation,''
involving not only the motivation, but when the idea of committing the
crime came into someone else's mind. I know of no one claiming under
this system someone killed in a well planned out murder receives more
consideration than a victim killed spontaneously in a crime of passion.
The same thing is true of the definition of treason in our
constitution. Under this, an act of sabotage with the intent of
threatening the United States is treated much more severely than
malicious destruction of property. It seems clear to us that acts of
violence aimed at subverting equality under law and basic human rights
ought to be punished more severely.
Because of this, we do support the Hate Crimes Prevention Act of
1999.
Having said this, though, we must repeat there is one glaring
defect in dealing with citizens who have disabilities. It does not
apply to health care institutions or health care workers, doctors,
nurses, or administrators. This would make the bill far less relevant
to the lives of those with disabilities and the conditions that
threaten them.
If a group of neo-Nazi skinheads beat up a man in a wheel chair on
the street, (as some have done all too recently in Germany), this would
be a hate crime under the Hate Crimes Prevention Act and they could be
prosecuted under it. If, on the other hand, the same group of neo-Nazi
skinheads had the shrewdness to get employed in the staff of a nursing
home and beat up patients there, this would not be considered a hate
crime and they could not be prosecuted for violating the Hate Crimes
Act. If a skinhead shot someone in a wheel chair, because he believed
in the teachings of Hitler that people had no right to live, he could
be prosecuted under this law. If, however, this particular skinhead had
the patience to go through medical school, become a doctor, and
administer involuntary euthanasia, this would not be applicable under
this law.
If the Congress of the United States determines in its wisdom to
protect those with disabilities from crimes based on prejudice, it
ought to consider where they are most threatened. Someone attacked on
the street has an easier time getting away than Someone in a nursing
home. Staff members and administrators in an institutional setting are
likely to have more power over their patients than bigoted punks on the
street. Brutality in an institution, which is suppose to provide health
care, is a violation of trust, which strikes at the heart of society in
a way no street attack or lynch mob possibly could.
One congressional aide I spoke with argued that the hate crimes act
deals with attacks on people using public facilities, because such
attacks restrict the ability of certain groups to use such facilities.
It is necessary, he noted, for a federal law to stop attacks on gays in
college, because such attacks may make gays reluctant to go to college.
He meant this as an argument for excluding health care institutions,
but it is actually a compelling argument for getting them included.
Health care institutions are public facilities. Attacks in health care
institutions do indeed make people reluctant to use them. One woman
told me if she got a certain illness, she would ``see Dr. Kevorkian,''
because she did not want to experience the brutality of a nursing home.
Columnist Nat Hentoff noted one of his elderly relatives was afraid to
go to the hospital and suggested that with attitudes in hospitals
today, this may have had some justification.
One must add that since most hospitals do receive federal funding,
they are engaged in interstate commerce.
Currently one of the most profound dangers those with disabilities
are facing is that of involuntary passive euthanasia--denial of
effective lifesaving treatment, not because of lack of funds, I might
add, but because of pure, prejudice.
Over 25 years ago, a young woman named Sondra Diamond wrote of how
she was rushed to a hospital with third degree burns. Because she was
born with cerebral palsy and was severely paralyzed, the doctors did
not want to give her the routine treatment they gave to other patients.
They claimed she was incapable of living ``a normal life.''
Her parents made heroic efforts to convince the physicians she was
already leading a normal life. They patiently showed them photos of her
swimming and playing the piano and explained she was a junior in
college.
The doctors were still not convinced and finally treated her only
because her parents insisted. Sondra recovered and lived a ``normal''
enough life to finish college and become a consulting psychologist.
What is even more amazing, she was able to keep her sense of humor.
However, as she ominously noted, hers was not ``an unusual case.''
In December, 1996, in its policy on ``futile care,'' the American
Medical Association noted some doctors wanted to withhold lifesaving
treatment, which was both effective and long lasting, even when the
patients and their families wanted it, because they felt the patients
did not have a ``worth-the-effort quality of life.'' If they had their
wishes, patients in the position of Sondra Diamond would be allowed to
die, no matter how much she and her parents insisted on routine care.
In short, to use star Trek terminology, patient freedom of choice is
irrelevant. The wishes of the family are irrelevant. Care is futile and
the patient's life is futile. End of discussion. what is most
horrifying about these attitudes is the reaction of the AMA to them,
The AMA, the Major medical organization in this country, declared it
wanted to ``accommodate'' these views. It urged hospitals, nursing
homes and other health care institutions to set up policies to
determine who had a not ``worth the effort quality of life.'' In order
to demonstrate its sense of fairness, the AMA also urged the
establishment of in-house procedures where patients and their families
could appeal such determinations. Under the AMA system, Sondra Diamond
and her family would be magnanimously granted the opportunity to run
through a special maze of administrators, directors, and duly appointed
``ethical boards'' in order to justify her existence.
The AMA policy statement also noted that patients should be allowed
to transfer to another institution (if one would accept them). However,
the AMA policy statement makes it clear that under its guidelines, if
administrators remain unconvinced of the value of a patient's life and
transfer is impossible, the institutions would not have to provide
treatment. In such circumstances, the patient's only recourse would be
to die quietly.
According to Wesley L. Smith, attorney for the International Anti-
Euthanasia Task Force, hospitals are already using such procedures to
``browbeat patients and their families.'' Smith also states that
hospitals are convincing the courts to permit the values of doctors and
medical ethicists to ``prevail over patient and family decision
making.''
Let us look again at the phrase ``worth the effort quality of
life.'' in general conversation, the term ``quality of life'' usually
refers to an individual's capacity to enjoy life or to benefit from
life. Obviously, though, this is something the individual patient can
decide better than anyone else. In the context of the AMA policy
statement, it is obvious that by ``quality of life,'' the AMA means a
judgment about the value of a patient's life. The AMA wants health care
facilities to take it upon themselves to decide that some lives are not
created equal, that some individuals have inferior ``quality'' second
or third class, Grade B, C, and D lives, which it is not ``worth the
effort'' to save.
This is a direct assault on the principle of human equality, which
Abraham Lincoln noted our nation was ``dedicated to'' from the very
moment our forefathers ``founded'' it ``upon this continent.'' Allowing
such policies to go unchallenged would strike at the heart of our
constitution's commitment to equal Protection under the law.
There is also a question of the laws of nations. Last year at a
press conference on prison conditions, I asked an official of Amnesty
international, whether it would be against international law to deprive
a prisoner of health care, because the prison authorities were shocked
at the crimes he committed. The Amnesty International representative
declared it certainly would be. If it is against international law for
physicians to judge a mass murderer or serial killer as an inferior
quality life, which it is not worth the effort to save, then it should
be equally reprehensible for health care workers, staff,
administrators, bureaucrats or ethical boards to make the same,
determination about people who have never violated the law or harmed
another human being.
In this now system, how will quality of life be determined? More to
the point, whose life will be secure? Who will be recognized as a first
class human being with a full quality of life?
The AMA, policy statement is hauntingly vague. It states that this
will be defined by each health care facility on the basis of
``subjective'' values, ``institutional values'' and community values''
on a ``case by case basis.'' Obviously a patient who is treated in one
hospital may be left to die in another. If things are done on a ``case
by case basis,'' the health care facilities may be operating without
any real consistency. If things are done under ``subjective values,''
it seems likely the facilities may be operating according to emotional
prejudice. Can we trust anyone--even doctors--with such powers? Is it
likely to result in enlightened decisions by philosopher kings?
One answer may come from examining what has happened in the past. I
have a copy of a 1984 letter by Dr. Richard Yerian, then chief medical
officer for the Michigan Health Department, stating that the medical
profession considered giving treatment to a ``malformed infant'' to be
an ``ethical question,'' not standard procedure. This suggests some
doctors considered it justifiable to let babies dies, because society
did not like the way they looked. Our caucus chairperson, Tommy
Meadows, notes the same thing has been done with adults. Meadows
recalled that when his own wife had a stroke, doctors questioned
whether it was worth while preserving her life, because she had been
born with spina bifida and seemed to them ``deformed.''
In the October, 1983 issue of the official organ of the American
Academy of Pediatrics, doctors from the University of Oklahoma Health
Services Center, wrote they actually used a pseudo mathematical formula
to ``measure'' an infant's quality of life. The American Civil
Liberties Union charged this formula allowed babies to die on the basis
of race and class.
What is more to the point, according to the International Anti
Euthanasia Task Force newsletter for January-March 1999, a recent study
by Georgetown University found that both the race and sex of patients
influenced whether doctors recommend state-of-the-art cardiac testing
for chest pain. The data showed that women and Black people were only
60 percent as likely to receive cardiac testing for chest pain than
white men. Under the test, Black women were recommended for the test 40
percent as often. Under the test 720 doctors were presented a computer
program and video interviews with patients complaining about chest
pains, describing identical pain symptoms, identical health insurance
coverage, the same professions and the same stress test results,
identical ages, clothing and even hand movements. Lead researcher Dr.
Kevin Schulman suggested that the findings indicated that doctors'
racial and sexual bias affects the type and degree of care patients
receive. As the international Anti Euthanasia Task Force puts it, this
also suggests that physicians may view some patients as being ``more
worthy'' of high-tech or expensive treatment than others, only because
of their race and gender.
In addition to this, Elizabeth Bauer, Director of the Michigan
Protection And Advocacy Service, personally told me her agency found
that gays and lesbians face discrimination in hospitals.
Involuntary euthanasia through policies that define some lives as
being of inferior ``quality'' and ``not worth saving'' would not only
directly involve direct denial of equality on the basis of disability,
but at the very least a de facto denial of equality on the basis of
race, gender, and sexual orientation. This would affect most of the
groups in the Hate Crimes Prevention Act.
Our Chairperson, Tommy Meadows, had once warned other prosecuted
minorities, ``Don't say this [situation with health care
discrimination] is our problem. Our problem may become your problem.''
That has come true with a vengeance.
Several questions remain what is the reason for such prejudice
against those with disabilities?
Part of this undoubtedly comes from economic pressures to cut
medical care by hospital administrators and HMOs.
To be honest, though, this can not be the whole answer. I must ask
why have so relatively few people working for civil rights been ready
to speak out about the denial of our basic right to live, including
those who have been most vociferous in their opposition to capital
punishment? Indeed, to be perfectly honest, I have felt indications
that some who consider themselves liberal and in the forefront of the
struggle for equality actually accept the idea that those with
disabilities are inferior quality lives.
To be fair, we have been very grateful to find in the last few
months, that our amendment has the pledged support of several civil
rights organizations, associated with two pioneers of the civil rights
movement, who put their lives on the line in the 60s, and names will
live in history.
However, I have to fear that on a psychological level, there is a
growing Handicap Phobia. To some, the presence or even the existence of
those with handicaps may represent unpleasant reminders of traits in
themselves they want to repress or deny. Psychotherapist Alice Miller
has noted that children who are valued only for their accomplishments
or the reflected glory they give their parents may grow up feeling that
without superior qualities, a person is ``worthless'' and can never be
loved. To super achievers who push themselves toward success in
medicine, those with disabilities may trigger uneasiness about
``imperfections'' they were unable to accept as children. It may remind
them of the child within them, the part of themselves which is
incapable, dependent, and helpless. Sexual stereotypes are involved
too. A person with a disability is often labeled ``less than a full
man'' or ``losing feminine attractiveness.'' In these different ways,
those with disabilities symbolize weakness and trigger other's fears of
being weak.
Miller suggests that once an individual associates a group of
people with qualities he wants to kill in himself, it becomes, natural
to wish such people dead. I must add that aversion can be easily
disguised as pity. Someone takes for granted a group of People is
without dignity and comes to believe the only way they can regain their
dignity is in death. From there it is easy for him to convince himself
that they are ``better off dead.'' After all, he notes, ``I would not
want to live like that,'' which essentially means I would not accept
myself, if I were like that.''
Such prejudices will flourish unless they are confronted. it has
been my goal today to try to confront them. The reason for the length
of this testimony is that the fear that it may not be easy to do so.
One final piece of speculation. Such attitudes are aggravated by
the growing acceptance and glamorization of violence in society and
serves to accelerate the process. Looking over the Littleton, Colorado
tragedies, I cannot help but feel that the young killers in Colorado,
who destroyed others in revenge for insults and taunts, and the
perpetrators of teenage violence in many other areas of this country,
who have killed to preserve their ``respect'' or sense of ``manhood,''
were reacting out of fear of weakness. Is it possible that the
acceptance by society of the idea that weakness merits death in our
institutions of healing, helped send a subliminal message that creating
death was a way to avoid feelings of weakness and gain a sense of
strength. How can we teach our youngsters respect for human life, when
respected adults--adults in the foremost positions of the most
prominent organization in the profession of healing, declare that some
lives are ``futile,'' of inferior ``quality,'' and not worth the effort
to save.
When voting on this issue, I ask all of you on this committee to
follow your duty to assure all citizens equal protection of the law.
I ask those on the conservative side of the fence not to deny equal
protection to citizens, you disapprove of on moral or religious
grounds, such as gays or lesbians.
I ask those on the liberal side of the fence not to deny equal
protection of the law to citizens, like those with disabilities, just
because it is not considered fashionable to fight for them. I ask you
not to be swayed by the influence of medical elitists and their
pretensions of creating a brave new world.
As a representative of the Michigan Citizens with Disabilities
Caucus, I ask you to approve the Hate Crimes Prevention Act of 1999
with our proposed amendment.
Enclosed are some articles on this subject. For further
information, please feel free to call me. Thank you for allowing us to
give this testimony and your patience in going through it.
Sincerely,
Ronald Seigel,
First Vice Chairperson,
Michigan Citizens With Disabilities Caucus.
__________
Ripple Effects,
San Francisco, CA, May 7, 1999.
Senator Orrin Hatch,
Chair, Senate Judiciary Committee,
Senator Dirksen Office Building, Washington, DC.
Dear Senator Hatch: Columbine has made clear that we need to take
action to prevent violence and hate, and promote tolerance throughout
our society.
I am writing to express my support for the hate crimes legislation
before your committee, and to let you know of a private sector
initiative that is making a difference.
For the past decade, I have developed and disseminated
groundbreaking and clinically validated youth violence prevention
programs, now used in over 60,000 US classrooms. My contributions to
children's safety and health education have been recognized with a host
of national awards, and eight regional Emmys. I have been a keynote
speaker in 15 states, headed a national nonprofit, and have lectured
widely on how to prevent youth violence.
Two years ago I turned to technology as the best platform to create
the next generation of prevention materials. I started a software
company called Ripple Effects, and last fall we released Relate for
Teens, an interactive CD-ROM that effectively prevents violence and
hate, and promotes positive, prosocial behavior.
Backed by ten years of research, Relate integrates best practices
in prevention, intervention, and social learning into an easy-to-use,
engaging, and media-rich database of social topics and life skill
training. Leaders call the program a ``breakthrough,'' and it has won
national acclaim and awards since its release.
The day after the Columbine tragedy, policeman Jim Hernandez, a
former gang member who now teaches life skills to teens in Concord,
California high schools, asked his students: Could it happen here?
Fearfully, students answered: Yes.
``The way you can prevent this,'' Hernandez told them, ``is to
change the way you treat people. We need to move from mean-crude-and-
rude, to nice-kind-and-polite.'' Hernandez has been working with Relate
for Teens to do just that. ``This program is helping to make nice-kind-
and-polite cool.''
The United States is more diverse than almost any society in the
world. With that diversity comes conflict and the need for skills to
resolve it. In addition, a sea of change in the nature of families,
work patterns, cultural imagery and sexual values have all contributed
to a drastically different social-emotional landscape for today's
youth, with higher incidences of social conflict than at any time in
the past.
In an era where many teens trust their computers more than they
trust their parents, this program creates a much needed bridge between
young people and the parents, teachers, friends, and community that
surround them. I believe that this innovative product can have an
impact on the lives of young people across the nation, preventing
violence and prejudice, and promoting tolerance.
This legislation expands federal jurisdiction to reach serious,
violent hate crimes, and authorize grants to state and local
prosecutors for combating hate crimes committed by juveniles. Ideally
this should go even further to secure funds that support prevention
programs in our schools.
All sectors of society need to take action on this important and
vexing issue. I urge you to vote in favor of this legislation.
Yours truly,
Alice Ray,
President and CEO.
__________
Victim Services,
New York, NY, May 11, 1999.
Senator Orrin G. Hatch, Chairman,
Senator Patrick J. Leahy, Ranking Minority Member,
U.S. Senate Judiciary Committee, Dirksen Senate Office Building,
Washington, DC.
Dear Senators Hatch and Leahy: I write to set out Victim Service's
support of S. 622, The Hate Crimes Prevention Act, and ask that this
letter be included in the record of the Judiciary Committee's hearing
on that bill.
Victim Services is the nation's largest victim assistance agency.
Our mission is to heal the wounds of violence and prevent
victimization. We run over 100 programs in courts, police precincts,
domestic violence shelters, schools, and community offices. We assist
over 200,000 clients in the City of New York each year. Our positions
on policy and legislation derive directly from what we learn from our
clients about their experiences of victimization and their needs for
justice and healing.
Victims of hate crimes reach out to Victim Services for help
through many of our programs including our city-wide 24-hour crime
victim hotline. We have been funded by the U.S. Department of Justice
to develop a model community response to bias crime through a
neighborhood-based working group comprised of activists from one of the
most diverse communities in the nation--Jackson Heights, Queens. We
know from our work against hate crimes that, when a bias attack occurs,
it visits two traumas on the victim. First is the physical violence
itself. Second is the crisis of recognizing that one's personhood has
been stripped away; not one's wallet or car, but one's identity and
very notion of self. This experience is devastating to the victim. Bias
crimes are not only a criminal assault on the individual victim, but
carry an additional message of hate to the entire community to which
the victim belonged or was perceived to belong. The implications of
this for each and every one of us are chilling.
Numerous recent bias-related crimes, including the killings of
James Byrd and Matthew Shepard and here in New York the crime-by
shooting of Sonya Thompson in Albany, have raised our nation's
awareness of the culture of hate and the violence to which it leads.
While violent crime has deceased in general, bias crimes are on the
rise. According to New York City Police Department statistics, for
example, anti-gay attacks in 1998 were up approximately 83 percent over
1997 figures.
We urge the Senate Judiciary Committee to vote in favor of S. 622,
which would strengthen the federal weapons against hate crimes send a
powerful message that hate and the violence it breeds will not be
tolerated as part of our American culture. It is essential that the
federal criminal hate crimes law be expanded to acknowledge the reality
that people are victimized because of their gender, disability, and
sexual orientation. S. 622 would provide encouragement to individual
state, like New York, that need to strengthen their own bias crime
laws, and would allow the federal government to partner with states and
localities in investigating and prosecuting hate crimes.
On behalf of Victim Services, I thank you for considering our
support of S. 622.
Sincerely,
Gordon J. Campbell.