[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]



 
   REAUTHORIZATION OF THE CIVIL RIGHTS DIVISION OF THE UNITED STATES 
                         DEPARTMENT OF JUSTICE

=======================================================================




                                HEARING

                               BEFORE THE

                    SUBCOMMITTEE ON THE CONSTITUTION

                                 OF THE

                       COMMITTEE ON THE JUDICIARY

                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 10, 2005

                               __________

                           Serial No. 109-45

                               __________

         Printed for the use of the Committee on the Judiciary


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                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California        ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee        SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah                   MAXINE WATERS, California
SPENCER BACHUS, Alabama              MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina           WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana          ROBERT WEXLER, Florida
MARK GREEN, Wisconsin                ANTHONY D. WEINER, New York
RIC KELLER, Florida                  ADAM B. SCHIFF, California
DARRELL ISSA, California             LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona                  ADAM SMITH, Washington
MIKE PENCE, Indiana                  CHRIS VAN HOLLEN, Maryland
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas

             Philip G. Kiko, Chief of Staff-General Counsel
               Perry H. Apelbaum, Minority Chief Counsel
                                 ------                                

                    Subcommittee on the Constitution

                      STEVE CHABOT, Ohio, Chairman

TRENT FRANKS, Arizona                JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee        JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama              ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana          MELVIN L. WATT, North Carolina
MARK GREEN, Wisconsin                CHRIS VAN HOLLEN, Maryland
STEVE KING, Iowa
TOM FEENEY, Florida

                     Paul B. Taylor, Chief Counsel
                      E. Stewart Jeffries, Counsel
                          Hilary Funk, Counsel
                  Mindy Barry, Full Committee Counsel
           David Lachmann, Minority Professional Staff Member

























                            C O N T E N T S

                              ----------                              

                             MARCH 10, 2005

                           OPENING STATEMENT

                                                                   Page
The Honorable Steve Chabot, a Representative in Congress from the 
  State of Ohio, and Chairman, Subcommittee on the Constitution..     1
The Honorable Robert C. Scott, a Representative in Congress from 
  the State of Virginia, and Member, Subcommittee on the 
  Constitution...................................................     2
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Member, Subcommittee on the 
  Constitution...................................................     3

                               WITNESSES

Mr. R. Alexander Acosta, Assistant Attorney General, Civil Rights 
  Division, U.S. Department of Justice
  Oral Testimony.................................................     4
  Prepared Statement.............................................     6

                                APPENDIX
               Material Submitted for the Hearing Record

Congressional Black Caucus Agenda for the 109th Congress, 
  submitted by the Honorable Melvin Watt, a Representative in 
  Congress from the State of North Carolina, and Member, 
  Subcommittee on the Constitution...............................    46
Letter from Members of the Committee on the Judiciary, dated June 
  23, 2004, to the Honorable John Ashcroft, Attorney General of 
  the United States, U.S. Department of Justice, and response, 
  dated August 13, 2004..........................................    55
Response to post-hearing questions from R. Alexander Acosta, 
  Assistant Attorney General, Civil Rights Division, U.S. 
  Department of Justice..........................................    59





























   REAUTHORIZATION OF THE CIVIL RIGHTS DIVISION OF THE UNITED STATES 
                         DEPARTMENT OF JUSTICE

                              ----------                              


                        THURSDAY, MARCH 10, 2005

                  House of Representatives,
                  Subcommittee on the Constitution,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 10:05 a.m., in 
Room 2141, Rayburn House Office Building, the Honorable Steve 
Chabot (Chair of the Subcommittee) presiding.
    Mr. Chabot. The Committee will come to order.
    Thank you very much for coming this morning. We'd like to 
welcome everyone to this hearing. This is the Subcommittee on 
the Constitution's annual oversight hearing on the activities 
of the United States Department of Justice's Civil Rights 
Division for the purposes of reauthorization.
    I'd like to thank our witness, the Honorable R. Alexander 
Acosta, Assistant Attorney General for Civil Rights at the 
Department of Justice, for appearing this morning. Assistant 
Attorney General Acosta has played a pivotal role in developing 
policies and initiatives to advance civil rights in the United 
States. We look forward to hearing from him on the Division's 
priorities for the upcoming year, its accomplishments since the 
last oversight hearing, and whether we can anticipate any 
changes to the Division's priorities and policies under the 
Justice Department's new leader, Attorney General Gonzalez. 
Again, thank you, Assistant Attorney General Acosta, for making 
yourself available to the Subcommittee here this morning.
    The Civil Rights Division has played an instrumental role 
in protecting civil rights in this country. Established in 
1957, the Division is charged with enforcing Federal statutes 
prohibiting discrimination on the basis of race, sex, handicap, 
religion, and national origin. The breadth of issues falling 
under the Division's jurisdiction demonstrate its importance.
    The Division enforces statutes such as the Civil Rights Act 
of 1957, 1960, 1964, and 1968, the Voting Rights Act of 1965, 
as amended through 1992, the Equal Credit Opportunity Act, the 
Americans with Disabilities Act, ADA, the National Voter 
Registration Act, the Uniformed and Overseas Citizens Absentee 
Voting Act, the Trafficking in Persons Program, Civil Rights of 
Institutionalized Persons Act, or CRIPA, and other civil rights 
provisions and Federal laws that prohibit discrimination in 
education, employment, credit, housing, public accommodations 
and facilities, voting, and certain federally funded and 
conducted programs. The Division also prosecutes several 
criminal civil rights statutes that were enacted to preserve 
personal liberties and safety.
    The Division has taken on additional significance in recent 
years. Since September 11, the Division has devoted additional 
resources to protecting Americans who are or are perceived to 
be of Arab, Muslim, Sikh, and South Asian descent. Since 2001, 
the Division has successfully prosecuted bias crimes and 
incidents of discrimination. In that same year, the Division 
opened its Trafficking in Persons Program.
    Over the last 4 years, the Division has opened 203 
investigations of human trafficking and has charged, together 
with the U.S. Attorney's Office, 59 defendants with 29 cases. 
In 2002, the Division initiated its Religious Discrimination 
Initiative, ensuring that religious freedoms of all Americans 
are enforced. And in 2004, the Division zealously monitored, 
enforced, and resolved voting issues, ensuring that every 
American's right to vote was protected.
    I would like to add a personal note to the ongoing issue of 
voting. I, and I know everyone on the Committee, takes very 
seriously the issue of voting rights and election reform, but 
as a Congressman from Ohio and a resident of the City of 
Cincinnati who went to dozens of urban and suburban polling 
locations throughout the First District of Ohio on election day 
myself, I want to make clear that the election in Ohio was 
conducted professionally, fairly, and freely.
    I know that my colleagues will have questions for Assistant 
Attorney General Acosta and we can expect that a wide variety 
of issues will be addressed this morning. So I again thank you, 
Mr. Acosta, for being here this morning, and before I defer to 
the gentleman from Virginia for the purpose of making an 
opening statement, I just might note that we're being called to 
the floor for votes, but I think we have time for an opening 
statement, and then when we come back, we'll get to your 
testimony, Mr. Acosta.
    The gentleman from Virginia, Mr. Scott, is recognized for 5 
minutes.
    Mr. Scott. Thank you, Mr. Chairman. I'll be brief.
    I want to welcome Mr. Acosta back to us. The work of the 
Civil Rights Division is one of the most important functions of 
Government. Without rigorous enforcement of civil rights laws, 
the promise of our democracy would ring hollow.
    We have come far as a nation, but there is still much that 
needs to be done. Too many people are excluded from the 
mainstream of American life. Many are denied the right to vote 
or are subjected to schemes forcing them to wait 10 hours to 
cast those votes. They're denied the right to own a home, walk 
down the street, or to hold a job, or to enter into a public 
building. Every denial of a basic right is an injury to a human 
being, but also an injury to our nation.
    My colleagues and I have many concerns about the priorities 
of the Division and the way its approach to protection of 
fundamental rights. I'm especially concerned about the extent 
to which large numbers of Americans were again denied the right 
to a free election, a right our soldiers are dying half a world 
away to secure.
    I look forward to Mr. Acosta's testimony and I join you, 
Mr. Chairman, in welcoming him here today.
    I yield back.
    Mr. Chabot. Thank you very much, Mr. Scott.
    Mr. Franks, would you like to make an opening statement 
this morning?
    Mr. Franks. No.
    Mr. Chabot. Okay. Mr. Conyers, would you like to make an 
opening statement?
    Mr. Conyers. I'd like to make an observation, Mr. Chairman, 
and I thank you so much.
    Mr. Chabot. Yes, you are recognized.
    Mr. Conyers. First of all, we join in welcoming our new 
leader in the voter rights area, civil rights area. There are a 
lot of things we've got to talk about and the Committee hearing 
only opens the door. Ohio is one of them. But also the 
guideline process utilized in section 5 in Georgia v. Ashcroft, 
the whole question of the lack of activity around employment 
issues in your shop.
    We've been concerned about, but particularly in the civil 
rights community, about the flagrant disregard for civil rights 
enforcement evidenced by the Employment Section of the Civil 
Rights Division and its apparent hostility to disparate impact 
cases.
    And so I'm looking forward to this beginning discussion 
with us. I know you've got your staff here, and I think we're 
going to be able to make some headway in some areas that I 
think have been sorely ignored in the Civil Rights Division of 
the Department of Justice.
    I thank you, Mr. Chairman, for allowing me to bring this 
opening remark.
    Mr. Chabot. Thank you very much.
    Are there no other opening statements to be made? If not, 
what we'll do at this time is go into recess here briefly, go 
over to the floor and vote, and I'd ask the Members if they 
could come back, although I know we have a new Member being 
sworn in and there could be speeches going on and things over 
there. I intend to come back, and if the Members would like to 
do that, we'd appreciate it and we could get started and have 
Mr. Acosta's testimony.
    Mr. Scott. Miss the speeches? [Laughter.]
    Mr. Chabot. Miss the speeches. I'm sure that would be very 
painful, but---- [Laughter.]
    Okay. So we're in recess here and we'll come back shortly 
for your testimony, Mr. Acosta. We're in recess.
    [Recess.]
    Mr. Chabot. The Committee will come back to order. I want 
to thank all the Members for being so prompt in getting back 
here. We appreciate that very much so we can move on with the 
hearing in a timely manner.
    I'm very pleased to welcome here again this morning R. 
Alexander Acosta. He was selected by President Bush to serve as 
Assistant Attorney General for the Civil Rights Division of the 
United States Department of Justice on August 22, 2003. Prior 
to his service as Assistant Attorney General, Mr. Acosta served 
as a member of the National Labor Relations Board and has also 
served as Principal Deputy Assistant Attorney General in the 
Civil Rights Division.
    After graduation from Harvard Law School, he served as a 
law clerk on the U.S. Court of Appeals for the Third Circuit 
and then worked at the Washington office of the Kirkland and 
Ellis law firm, where he specialized in employment and labor 
issues. Mr. Acosta is the first Hispanic to serve as an 
Assistant Attorney General at the Department of Justice. He is 
the 2003 recipient of the Mexican American Legal Defense and 
Education Fund's Excellence in Government Service Award and the 
D.C. Hispanic Bar Association's Hugh A. Johnson, Jr., Memorial 
Award. He also has taught several classes on unemployment law, 
disability-based discrimination law, and civil rights law at 
the George Mason School of Law.
    We welcome you here this morning again, Mr. Acosta. It's 
the practice of this Committee, as you know, to swear in all 
witnesses appearing before it, so if you would not mind please 
standing and raising your right hand.
    Do you swear that in the testimony that you are about to 
give, that you will tell the truth, the whole truth, and 
nothing but the truth, so help you, God?
    Mr. Acosta. I do.
    Mr. Chabot. Thank you very much, and you can be seated.
    Without objection, all Members will have five legislative 
days within which to submit additional materials for the 
record.
    We generally allow 5 minutes. However, we'll allow you such 
time as you might consume since you're the sole witness at this 
hearing this morning.

 TESTIMONY OF R. ALEXANDER ACOSTA, ASSISTANT ATTORNEY GENERAL, 
       CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE

    Mr. Acosta. Thank you, Mr. Chairman. Mr. Chairman, Ranking 
Member, Members of the Subcommittee, it's a pleasure to appear 
before you once again to represent President Bush, Attorney 
General Gonzales, and the men and women of the Civil Rights 
Division.
    I have been on the job somewhat over a year now and I'm 
still honored and I'm humbled by the trust that the President 
and the Attorneys General whom I have served have placed in me 
by allowing me to serve in this position.
    I am pleased to report that 2004 was an outstanding year 
for the Division. During 2004, we achieved record levels of 
enforcement across the board. My written statement details that 
work. I would like to summarize it and ask that my statement be 
placed in the record.
    Mr. Chabot. Without objection.
    Mr. Acosta. Thank you, Mr. Chairman.
    In brief, fiscal 2004 was a record-setting year. We 
achieved our highest success rate ever in courts of appeals. We 
opened an investigation of the 1955 murder of Emmett Till. We 
prosecuted 96 new criminal civil rights cases, the most ever 
filed in a single year. In another record, we prosecuted 59 new 
human trafficking defendants, a dramatic increase from the five 
in the year 2000. We prosecuted 46 color of law cases, just 
three fewer than the all-time high, achieving a 77 percent 
conviction rate in color of law matters and 8 percent increase 
in the conviction rate.
    We mounted the Division's largest-ever election monitoring 
program, deploying 1,996 observers and monitors to watch 163 
elections in 29 States. We filed and successfully resolved as 
many language minority ballot access cases as had been filed in 
the prior 8 years combined. We filed the Division's first 
lawsuits to enforce HAVA as well as litigating under UOCAVA and 
the National Voting--the NVRA. We conducted extensive outreach 
efforts with State election officials to ensure compliance with 
Federal election laws and the civil rights groups to ensure 
that their concerns were heard during the election.
    With respect to housing discrimination, we saw an 85 
percent increase in pattern or practice lawsuits. In another 
record in the housing discrimination area, we won the largest 
jury verdict ever obtained by the Division in the Fair Housing 
Act case. With respect to redlining, we achieved another 
record, bringing for the first time ever multiple redlining 
cases in a single year, including, in another first, the first 
redlining case to address small business loans.
    We brought and successfully resolved a lawsuit challenging 
allegations of discrimination by Cracker Barrel Old Country 
Stores. Mr. Conyers referenced earlier employment 
discrimination cases. Last year, we filed more pattern or 
practice employment discrimination cases than any year since 
the mid-1990's, including disparate impact cases, which we do 
enforce.
    We concluded the 100th Project Civic Access agreement, 
promoting accessibility in municipal services and facilities. 
We filed and resolved a landmark design and construction case 
under the Fair Housing Act covering 4,000 housing opportunities 
affecting 34 apartment complexes over six States. We settled 
the Division's first case ever enforcing HUD's Rehabilitation 
Act regulations against a public housing authority, providing 
more than 2,000 new housing opportunities for individuals with 
disabilities.
    Our ada.gov website received the most hits ever, 30 
million. We served 100,000 callers on our ADA information line, 
including 48,000 who were personally assisted by specialists. 
We brought the first title IV education case since 1990. We 
successfully resolved, in yet another record, six pattern or 
practice investigations of police departments, more than in any 
prior year. We authorized 14 new investigations under the Civil 
Rights of Institutionalized Persons Act. And we entered into 15 
agreements under that act, the most agreements ever reached in 
a single year. We filed the Division's first contested lawsuit 
to protect the rights of juveniles in State institutions.
    In short, Mr. Chairman, Members, fiscal 2004 was a record-
setting year and I am grateful to the men and to the women of 
the Civil Rights Division whose work and whose accomplishment 
made these records and these cases possible.
    I would like to add, and I would like to close with one 
added observation, if I could. These achievements, in my 
opinion, deserve praise and kudos, but they also serve to 
remind us of a larger and an unpraiseworthy truth, a truth 
which I think needs to be acknowledged. Allow me to explain.
    I recently had the privilege of attending a preview of a 
History Channel documentary entitled ``Voices of Civil Rights'' 
at the Smithsonian Institution. The program was very well done. 
It documented the voices of typical Americans, average 
Americans who experienced segregation firsthand. The stories 
were moving. They were challenging. They were thought 
provoking.
    I was struck in particular by one story. It was a story of 
a nurse, an African-American nurse who remembered the first day 
that her hospital was desegregated. She remembered going down 
to the formerly white floor to treat a white patient for the 
first time, a woman who had surgery that morning. As she went 
to treat the patient, her husband stepped in the way and said, 
``Don't you lay a finger on my wife.'' But the patient had just 
had surgery and needed to be treated, and so the nurse tried to 
treat her, at which point the husband said, now at this point 
yelling, ``Get your blank fingers off my wife,'' using the 
``N'' word. He then picked her up, carried her out of the room, 
and threw her down the hallway. He then unplugged his wife from 
the medical equipment, put her in a wheelchair, and took her 
out of the hospital.
    Well, about a week later, the woman in this documentary 
recounted, she saw the man again. She was on duty at the 
hospital and he came up to her. She feared another 
confrontation, but instead, the man looked defeated and he 
said, ``Ma'am, I shouldn't have laid hands on you when I did, 
because if I'd not done so--I had no right to do so, because if 
I had not done so, I would still have a wife and a mother to 
care for me and for my children.''
    It's difficult today to imagine such blindly self-
destructive behavior, and films like this serve to remind us of 
history. But it is also naive to believe that in 40 years, the 
impulses that drove that man have disappeared entirely from our 
society and from our nation. While discrimination today may not 
take all the same exact stark forms that it once did, and while 
the tools to fight it must and do adapt, it nevertheless 
persists, and that is something that we should acknowledge.
    Our efforts this past year stand testament to that fact and 
to the efforts of all those committed to extending 
opportunities to Americans of all races.
    I thank you, Mr. Chairman, Ranking Member, Members of the 
Committee, and I look forward to your questions.
    Mr. Chabot. Thank you very much, Mr. Acosta.
    [The prepared statement of Mr. Acosta follows:]
               Prepared Statement of R. Alexander Acosta
    Thank you Mr. Chairman; Ranking Member Nadler; Members of the 
Subcommittee:
    It is an honor once again to appear before this Subcommittee, and 
to represent President Bush, Attorney General Gonzales and the hard 
working men and women of the Civil Rights Division in reporting to you 
on our critical work advancing the civil rights of all Americans.
    I am extremely pleased to report that this past year was an 
outstanding year for the Division. Since last I appeared before this 
Committee, the Civil Rights Division has reached record levels of civil 
rights protection across the board. In fact, during fiscal year 2004, 
the Civil Rights Division:

          Achieved its highest success rate ever in the courts 
        of appeal;

          Prosecuted 96 new criminal civil rights cases, in 
        conjunction with the United States Attorneys' Offices, the most 
        ever filed in a single year;

          Assembled a task force to investigate the 1955 murder 
        of Emmett Till;

          Prosecuted, in conjunction with the U.S. Attorneys' 
        Offices, 59 new defendants for human trafficking violations, a 
        dramatic increase from the 5 prosecuted in 2000;

          Mounted the largest election monitoring program in 
        the Division's history; dispatching over 1,900 federal 
        personnel to monitor elections around the country;

          Filed and successfully resolved as many language 
        minority ballot access cases as the Division had filed in the 
        previous 8 years combined;

          Implemented vigorous enforcement of the Help America 
        Vote Act;

          Increased by 85% the number of lawsuits challenging a 
        pattern or practice of discrimination in housing;

          Won the largest jury verdict ever obtained by the 
        Division in a Fair Housing Act case;

          Brought, for the first time ever, multiple fair 
        lending ``redlining'' cases in the same year, including--in 
        another first--claims that a bank failed to make business loans 
        on a non-discriminatory basis;

          Brought and successfully resolved a lawsuit 
        challenging allegations of discrimination in public 
        accommodations by Cracker Barrel Old Country Stores;

          Filed more cases challenging a pattern or practice of 
        employment discrimination that in any year since the mid-1990s;

          Concluded the 100th agreement under Project Civic 
        Access, promoting accessibility in municipal services and 
        facilities;

          Filed and resolved a landmark design and construction 
        suit under the FHA and ADA that covers over 4,000 ground units 
        and affects 34 apartment complexes in 6 states;

          Settled the Division's first case against a public 
        housing authority to enforce HUD's Rehabilitation Act 
        regulations, providing more than 2,000 new housing 
        opportunities for individuals with disabilities;

          Received more than 30 million hits--the most ever--on 
        its ADA homepage, which ranks among the most used federal 
        compliance assistance websites;

          Served more than 100,000 callers on its ADA 
        Information Hotline, including 48,000 who were personally 
        assisted by specialists;

          Brought the first Title IV education case since 1990;

          Authorized 14 new Civil Rights of Institutionalized 
        Persons Act investigations and entered into 15 CRIPA 
        agreements, the most agreements reached ever in a single year 
        in; and

          Filed the Division's first contested lawsuit to 
        protect the rights of juveniles in state institutions since the 
        early 1990s.

    These are only highlights of our accomplishments. It is my pleasure 
to review these accomplishments in detail.
                          federal criminal law
    During FY 2004, the Division remained ardent and vigilant in 
enforcing federal criminal civil rights protections. Our determined 
efforts produced extraordinary results. We filed 96 new criminal civil 
rights prosecutions in conjunction with US Attorney's Office in FY 
2004--more than in any year in the Division's history. Our efforts span 
the full breadth of the Division's jurisdiction. In color of law 
matters, we filed 46 cases--just 3 fewer than the all-time high. With 
respect to human trafficking offenses, the Division, in conjunction 
with the U.S. Attorneys' Offices, filed 29 cases in FY 2004 charging 59 
defendants. This effort compares dramatically with the 5 defendants 
charged in 3 cases during FY 2000. In addition, we prosecuted 20 
instances of bias crime, including 9 instances of cross burning, and 
several cases challenging post-9/11 backlash bias crimes.
Color of Law Prosecutions
    All of us appreciate and respect the difficult task performed daily 
with professionalism by law enforcement officers around the county to 
keep us free from harm. It is my firm conviction that the vast majority 
of police officers and other state agents are committed to providing 
the best, constitutional service possible. In light of the inherent 
dangers in their job, particularly in light of their new role on the 
front line in the war on terror, they well deserve our deep gratitude. 
At the same time, it is of the utmost importance that officers obey the 
very laws that they enforce. The public must have the trust that no 
one, including a law enforcement officer, is above the law. Thus, 
failing to hold officers to account for their conduct, and allowing 
that trust to be undermined, would make the job substantially more 
difficult.
    As I noted, this past year we have had substantial success 
prosecuting color-of-law violations. While these cases are among the 
most difficult criminal prosecutions, our conviction rate in law 
enforcement cases increased from 69% in 2003 to 77% in fiscal year FY 
2004.
    I want to highlight three examples for the Committee:
    In U.S. v. Carson, six police officers ganged-up to attack the 
victim of a traffic dispute with an off-duty police officer. They 
pulled over the victim as he was driving home from work, pulled him 
from his car, and beat him severely. They then wrote false police 
reports to cover up their assault; indeed, some of the officers 
fabricated evidence to trump up false criminal charges against the 
victim. One officer pleaded guilty; four of the remaining five officers 
were convicted at trial.
    In United States v. Hampton, a police officer with the Carlisle, 
Arkansas Police Department used his law enforcement authority to coerce 
young men in his custody to perform homosexual acts. On numerous 
occasions, the defendant arrested individuals for minor infractions and 
threatened them with incarceration if they refused his sexual demands. 
We secured guilty pleas to two felony civil rights counts and obtained 
a sentence of 212 months in prison.
    In United States v. Simmons, the defendant used his status as a 
police officer to sexually assault a helpless teenage victim. After 
pulling over the victim and her boyfriend for a traffic offense, the 
defendant placed the victim in his patrol car and offered to drive her 
home. Instead he took her to a secluded area where he repeatedly raped 
her. Our involvement and investigation followed an unsuccessful state 
prosecution. Just earlier this month, a federal jury convicted the 
defendant, specifically finding that he had committed aggravated sexual 
abuse and caused bodily injury to the victim.
    While the traditional model of color-of-law enforcement relates to 
law enforcement officers and prison guards, it merits mention that our 
authority applies to anyone acting under color of law. This can include 
other state agents such as orderlies in nursing homes and mental 
facilities, others involved in the criminal justice process, and any 
other state employee or agent who willfully deprives an individual of 
his federally protected rights on account of color, religion, sex, 
handicap, familial status or national origin.
    For example, in United States v. Anderson, we convicted an 
internationally renowned cadaver dog handler for repeatedly planting 
false evidence at law enforcement search scenes. Our investigation, 
which included local, state and federal law enforcement agencies from 
Florida to California and from Wisconsin to Louisiana, revealed that 
the defendant had planted human bones, a flesh-covered toe, and her own 
blood at various crime scenes she had been asked to search. The FBI 
laboratory was instrumental in developing inculpatory forensic 
evidence. The defendant pleaded guilty to federal charges of falsifying 
facts and obstruction of justice, and was sentenced to 21 months 
incarceration.
    As you know, the Division has jurisdiction to investigate the 
conditions of confinement at state institutions including nursing 
homes, juvenile facilities, and mental health institutions. Our 
investigations of such facilities frequently turn up shocking accounts 
of abuse, including conduct that is rightly considered criminal. For 
example, in United States v. Brewer and Bratcher, two developmental 
technicians pleaded guilty to conspiring to physically abuse a 
profoundly mentally impaired individual who lived at the facility. The 
abuse culminated when the victim was whipped with an electrical cord 
nearly 30 times, leaving numerous welts and abrasions on his back, side 
and buttocks. Examples such as this, which involve the deliberate 
infliction of cruelty upon those least able to defend themselves, 
rightly shock the conscience. Although in the past the Criminal Section 
has considered referrals from the Special Litigation Section, I believe 
that we can do even better. As such, I implemented a referral procedure 
last year to ensure that instances of potential criminal institutional 
abuse are given a high priority by the Criminal Section.
Bias Motivated Crimes
    Our bias-motivated crimes prosecutions concern some of the most 
disturbing, and to be blunt, disgusting cases. For example, in United 
States v. Derifield, we convicted two avowed white supremacists of a 
racially motivated attack on four teenagers, including a 14-year-old 
girl, who was held at knifepoint by one of the defendants. In United 
States v. Garner, et al., six defendants were sentenced to imprisonment 
for 12 to 46 months for conspiring to burn a five-foot tall cross in 
the driveway of a home occupied by a white woman in Georgia whose 
daughter was dating an African-American man. And in April of last year 
we secured civil rights convictions against five white supremacists in 
United States v. Heldenband. The defendants, angered that the victim 
was with a white woman, stabbed a black man in a Springfield, Missouri 
restaurant.
    Equally disturbing are arsons directed against houses of worship. 
Last year, a Member of this Subcommittee asked us to consider this area 
with particular care--and we have embraced the challenge. We 
strengthened our relationship with the Bureau of Alcohol, Tobacco and 
Firearms, which investigates these crimes. We have met, and continue to 
meet, on several occasions with the Bureau to ensure that neither they, 
nor we, have reason to believe that a new trend has developed. During 
2004 we prosecuted 3 church burning cases, and thus far during FY 2005 
we have filed 5 such prosecutions. However, we have found no national 
pattern or trend that suggests an increase in the rate of this terrible 
offense.
    Of particular importance are our successes in addressing incidents 
of violence and threats against Arabs, South Asians and Muslims, so 
called ``backlash'' crimes following from the September 11th terrorist 
attacks. Since 2001, the Department has investigated more than 630 
``backlash'' incidents, which have resulted in nearly 150 state and 
local prosecutions (many with federal assistance), and the federal 
prosecution of 27 defendants in 22 cases.
    For example, this year, we pursued two separate bias-motivated 
crimes at the Islamic Center of El Paso, Texas. In United States v. 
Bjarnason, the Defendant was convicted of e-mailing a threat to burn 
down the mosque if American hostages held in Iraq were not released 
within 72 hours. Using a provision of the USA PATRIOT Act, federal 
agents were able to identify Bjarnason as the sender before the 72-hour 
period had expired. Bjarnason pleaded guilty to federal charges and was 
sentenced to 18 months imprisonment. In the recent case of United 
States v. Nunez-Flores, we charged the Defendant with throwing a 
``Molotov Cocktail'' at the same Islamic Center of El Paso Mosque.
    Another example is the case of United States v. Middleman. There, 
the defendant pleaded guilty to sending a threatening interstate e-mail 
to Dr. James Zogby, President of the Arab-American Institute. The 
defendant is currently awaiting sentencing. As should be obvious, we 
take these cases very seriously. In fact, this is the second case of a 
threat against Dr. Zogby. In 2002, in United States v. Rolnik, the 
defendant pleaded guilty to leaving a threatening telephone message on 
Dr. Zogby's voice-mail. Similarly, in United States v. Ehrgott, we 
prosecuted a defendant who pleaded guilty to sending a threatening 
interstate e-mail communication to the Washington, D.C. office of the 
Council on American-Islamic Relations.
    Arab, Muslim and Sikh Americans are just that--they are Americans. 
Some died saving lives in the World Trade Center. Salman Hamdani, for 
example, was among the heros of September 11th. He was a New York City 
police cadet and ambulance driver. His remains were found near the 
North Tower of the World Trade Center with his medical bag beside him. 
He died doing everything he could to rescue victims of that attack. We 
must remember, as President Bush has said, that ``those who feel like 
they can intimidate our fellow citizens to take out their anger don't 
represent the best of America, they represent the worst of humankind, 
and they should be ashamed of that kind of behavior.''
Trafficking in Persons
    We have been equally successful continuing our efforts to fight 
human trafficking. I reported to the Committee last year on the 
Division's outstanding efforts on this front. This year has seen no 
let-up.
    As of March 1, 2005, the Division had open 203 trafficking 
investigations, a substantial increase over the 66 open in January 
2001. Of these, 130 were opened during fiscal year 2004, and an 
additional 52 were opened during fiscal year 2005. The Division, in 
conjunction with the United States Attorneys' Offices, charged a record 
59 defendants in 29 cases with trafficking offenses during fiscal year 
2004, as compared to 5 defendants in 3 cases in fiscal year 2000.
    One of our most recent cases is United States v. Garcia, where a 
farm labor contractor and several members of her family were charged 
with conspiring to recruit young undocumented Mexicans from the Arizona 
border and transporting them to New York with false promises of good 
wages. They transported their victims to Albion, New York, where they 
were forced to work in the fields for little or no pay. On December 2, 
2004, defendant Maria Garcia pleaded guilty to forced labor charges; 
her son, Elias Botello, pleaded guilty to conspiring to commit forced 
labor; and her husband and a second son entered guilty pleas to 
harboring aliens.
    The majority of our trafficking cases, however, involve some form 
of sexual abuse. For example, in United States v. Carreto, seven 
defendants are currently facing charges in a sex trafficking 
conspiracy. The defendants allegedly organized and operated a 
trafficking ring that smuggled nine Mexican women into the United 
States illegally and forced them into prostitution in Queens and 
Brooklyn, New York. One defendant has already pleaded guilty.
    Last year, in United States v. Rojas we obtained trafficking 
convictions in Atlanta, Georgia against the Rojas brothers. These 
traffickers smuggled women from Mexico into the United States and then 
forced them into commercial sexual activity.
    In United States v. Arlan and Linda Kaufman,  we charged a husband 
and wife in the State of Kansas who, under the guise of operating a 
residential treatment center for mentally impaired adults, held the 
residents in servitude, forcing them to engage in nudity and sexually 
explicit acts for the defendants' entertainment and profit. Trial in 
that case is pending.
    A judge powerfully captured the truly horrific nature of sex 
trafficking during a defendant's sentencing hearing in one of our 
cases. Shaking his head in disgust at the defendant, the judge stated: 
``he's the worst that I've ever seen in this court. It was worse than 
bad. It was almost like raping children. This gentleman took advantage 
. . . knew they were vulnerable, knew they couldn't cry out. Publicly 
humiliating them. Stripping them in public and throwing them in a 
canal.''
    The fight against human trafficking is supported at the highest 
levels of the Administration. This past July the Department hosted the 
first national conference on human trafficking. Both President Bush and 
the Attorney General attended and addressed the participants.
    At the conference, President Bush stated, ``Human trafficking is 
one of the worst offenses against human dignity. Our nation is 
determined to fight that crime abroad and at home.'' The President 
provided encouragement to the conference attendees:

        You've got a tough job, but it's a necessary job. You're 
        hunting down the traffickers, you're serving justice by putting 
        them behind bars, you're liberating captives, and you're 
        helping them recover from years of abuse and trauma. The lives 
        of tens of thousands of innocent women and children depend on 
        your compassion, they depend upon your determination, and they 
        depend upon your daily efforts to rescue them from misery and 
        servitude. You are in a fight against evil, and the American 
        people are grateful for your dedication and service.

    The Division is proud of its success prosecuting human trafficking 
cases, but we recognize that this is only a start. Much of our focus in 
the area of human trafficking since the July 2004 conference has been 
shifting from the reactive prosecution of human traffickers to 
proactively attacking the problem and seeking out human trafficking 
where it hides. Success in doing so stands on the twin pillars of (1) 
successful state-federal taskforce partnerships, and (2) a victim-
centered approach to enforcement.
    As to the first, during 2004 the Division helped to establish 19 
human trafficking task forces in major urban areas around the country 
including Phoenix, Philadelphia, Atlanta, Tampa, Newark, Houston, 
Northern Virginia, New York, Los Angeles, St. Louis, Miami, Orlando, 
the State of Connecticut, Albuquerque, Las Vegas, San Francisco, 
District of Columbia, San Antonio, and El Paso. Additional task forces 
will be created this year in Nassau County, New York and elsewhere. 
These task forces bring together Federal, state, local, and non-
governmental actors to combat trafficking and provide comprehensive 
assistance to victims. In many instances, the investigative team in 
these cases is led by local law enforcement. Local law enforcement, 
more than we, knows where victims of these unconscionable crimes are 
being hidden. Local law enforcement, in turn, works closely with 
prosecutors from the Civil Rights Division and U.S. Attorney's Office. 
In addition, non-governmental organizations, which are often grantees 
of the Department of Health and Human Services and the Justice 
Department's Office for Victims of Crime, are immediately contacted in 
order to ensure that victims receive prompt restorative care.
    Additionally, public service announcements have been issued in 
Spanish, Russian, Polish, Chinese, and Korean to inform victims of 
their rights. We are extremely grateful to our colleagues in this fight 
at all levels. In addition, the Division has also conducted a series of 
training programs for local law enforcement agencies and non-
governmental organizations in Tampa, Orlando, El Paso, Houston, 
Connecticut, Las Vegas, Albuquerque, St. Louis and San Francisco. All 
the trainings were extremely well received. We are also in the process 
of developing a model curriculum for the victim-centered approach to 
identifying and rescuing trafficking victims and investigating and 
prosecuting their traffickers and abusers.
    States are increasingly recognizing that trafficking is not just a 
federal problem. Texas, Washington, Minnesota, Missouri, and Florida 
already have state trafficking laws. The Division has worked with 
states to find ways to address human trafficking, including publishing 
for consideration a model state anti-trafficking statute.
    Our prosecutors at the Department of Justice have an impressive 
record of convictions on trafficking charges. Convictions, however, 
cannot alone heal the pains and emotional scars inflicted on these 
victims. How does a girl that has been repeatedly forced to engage in 
commercial sex acts--repeatedly raped--fully recover? As we have made 
clear time and time and again, these victims need our help. They need 
our protection. True rescue means providing victims with the assistance 
they need to rebuild and recapture their lives. For this reason, the 
Justice Department requires that each of our prosecutors and 
investigators use a victim-centered approach.
    The needs of the victim must take high priority. We work--and will 
continue to work--with service providers to ensure that the victims of 
trafficking are kept safe. Immediately after we uncover a trafficking 
crime, Department of Justice victim-witness coordinators help place the 
victims in a shelter. We work with the Bureau of Citizenship and 
Immigration Services to obtain Continued Presence and ``T-Visas'' for 
these victims. A ``T-Visa'' permits victims of severe forms of 
trafficking to live and work legally in the United States for three 
years while their cases are investigated and prosecuted.
    We likewise work with the Department of Health and Human Services 
to help victims obtain additional services for these victims--medical 
care, screening for STDs, and emergency food and shelter. We help place 
the victims with NGOs, funded in part by the federal government. Our 
charge, given to us by the President, is to help these victims begin to 
rebuild their lives and that is exactly what we shall continue to do. 
In short, it is the stated policy of the Department of Justice that 
individuals who have been subjected to a severe form of trafficking 
truly are victims in every sense of the word.
    I am proud to say that the Civil Rights Division's record of victim 
protection has been unflagging and robust. Since 2001, the Civil Rights 
Division has helped over 680 trafficking victims from 46 countries 
obtain refugee-type benefits under the Trafficking Victims Protection 
Act. In that same time period, the Division has helped over 500 victims 
extend their stay in the U.S. to assist law enforcement, through 
continued presence or a T-Visa certification.
    Despite our successes, we know that we have much more work to do. 
The fight against human trafficking remains among the Department's 
chief priorities.
                        protecting voting rights
    Of particular importance during 2004 was the Division's 
responsibility to enforce certain federal voting rights statutes. Let 
me be absolutely clear: no civil right is more important to President 
Bush, to Attorney General Gonzales, or to me, than the full and fair 
enjoyment of the right to vote. The ballot is the essential building 
block of our democracy, and it must be protected.
    It merits noting at the outset that ours is a Federal system of 
Government. Article I, Section 4 of the Constitution provides that 
``[t]he Times, Places and Manner of holding Elections for Senators and 
Representatives shall be prescribed in each State by the Legislature 
thereof.'' However, recognizing the national importance of such 
elections, it continues, ``but the Congress may at any time by Law make 
or alter such Regulations. . . .'' Thus, except for where Congress has 
expressly decided otherwise, primary responsibility for the method and 
manner of elections, and for defining and protecting the elective 
franchise lies with the several states.
    Congress has, in a number of distinct areas, determined that a 
federal scheme should overlay the states' election responsibilities. 
The first of these came in 1965 when Congress enacted the Voting Rights 
Act. This statute, which followed the startling and transforming events 
of ``Bloody Sunday''--the beating of peaceful marchers on the Edmund 
Pettus bridge in Selma, Alabama--perhaps more than any other modern-day 
law has changed America for the better. Subsequently, Congress has 
enacted several additional federal voting laws, including the 1970, 
1975 and 1982 amendments to the Voting Rights Act, the Uniformed and 
Overseas Citizen Absentee Voting Act of 1986, the National Voter 
Registration Act of 1993 (``Motor Voter'' or ``NVRA''), and the Help 
America Vote Act of 2002 (``HAVA''). The Civil Rights Division enforces 
the civil provisions of these laws, while the Public Integrity Section 
of the Criminal Division enforces the criminal misconduct and anti-
fraud prohibitions of these laws.
    Nothing so acutely focuses attention on voting rights as a national 
election. Such an election requires early and substantial planning on 
the part of the Division to ensure that it properly carries out its 
mandate to enforce the several statutes entrusted to it. Accordingly, 
starting in April 2004, I met with my voting rights leadership team to 
establish broad goals for the Division's effort. The Division's 
subsequent efforts, set in motion at that time, fall generally into 
three categories: monitoring, transparency, and legal accountability.
Election Monitoring Under the Voting Rights Act
    Robust monitoring of elections is among the most effective means of 
ensuring that voting rights are respected. Monitoring has two primary 
and salutary effects. First, the presence of federal monitors serves as 
a deterrent to wrongdoing in a jurisdiction; second, monitors serve a 
reporting function, bringing to the Division's attention information 
that permits us to determine whether further legal action is necessary, 
and providing the facts necessary to take it. Accordingly, this past 
year the Civil Rights Division mounted the most extensive election-
monitoring program in its history.
    The Division generally employs two types of individual to watch an 
election.
    First, the Voting Rights Act provides for the appointment of 
federal voting observers by order of a federal court pursuant to 
Section 3(a), or, with regard to political subdivisions covered under 
Section 4 of the Voting Rights Act, upon the certification by the 
Attorney General, pursuant to Section 6.\1\ In addition, Section 8 of 
the Voting Rights Act provides for the appointment of federal observers 
within political subdivisions certified by the Attorney General or by 
order of a federal court pursuant to Section 3 of the Voting Rights 
Act.
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    \1\ A total of 148 counties and parishes in 9 states have been 
certified by the Attorney General pursuant to Section 6: Alabama (22 
counties), Arizona (3), Georgia (29), Louisiana (12), Mississippi (50), 
New York (3), North Carolina (1), South Carolina (11) and Texas (17). A 
total of 11 political subdivisions in 11 states are currently certified 
by federal court order: California (3), Illinois (1), Indiana (1), 
Louisiana (1), Michigan (1), New Jersey (1), New Mexico (3), New York 
(2), Pennsylvania (1), South Dakota (1), and Washington (1).
---------------------------------------------------------------------------
    Second, in addition to the statutorily approved monitoring, it has 
become common practice for the Department of Justice to send Department 
personnel to monitor elections in other political subdivisions where 
concerns about elections have been expressed.
    Early in 2004 we identified election monitoring as a chief 
priority. At that point, we notified the Office of Personnel Management 
that we would request a number of monitors greatly in excess of prior 
election years' totals.
    Given the anticipated scope of the 2004 monitor and observer 
program, identifying sufficient personnel to deploy was a challenge. 
Traditionally, the Civil Rights Division has deployed Voting Section 
staff along with a limited number of federal prosecutors experienced in 
election monitoring. This year, the determination was made not to 
employ federal prosecutors as election monitors actually at polling 
places. Rather, we recruited non-prosecutor attorneys and staff widely 
throughout the Division.
    All monitors received substantial training in election-related 
civil rights laws, including, for the first time ever, those laws 
designed to protect the rights of voters with disabilities. The 
Division likewise worked with OPM to ensure quality training of OPM 
election observers.
    Election monitoring in 2004 began with the early primary elections 
and proceeded throughout the year. Prior to the general election, the 
Department sent 802 monitors and observers to 75 elections in 20 
states, as compared with 340 monitors and observers deployed to 21 
elections in 11 states pre-election during 2000.
    On Election Day itself, we deployed an additional 1,073 monitors 
and observers to watch elections in 87 elections in 25 states, as 
compared with 363 monitors and observers in 20 elections in 10 states 
on election day in 2000.
    In short, by way of comparison, during all of calendar year 2000, 
the Division sent 743 monitors and observers to 46 elections in 13 
states. During all of calendar year 2004, including elections that were 
held after November 2, we deployed a total of 1,996 federal personnel 
to observe 163 elections in 29 states, our most extensive monitoring 
effort ever.



Importance of Transparency
    While impressive, this unprecedented monitoring effort by itself 
would have been of little use. Rather, it is just as important that the 
voting public and election officials know that the Division is actively 
monitoring elections and enforcing federal voting rights statutes.
    Accordingly, we made it a point to be substantially more public in 
our election protection work than the Division has been in prior 
election years.
    One area in which this was particularly significant was the manner 
in which election monitors are allocated. Traditionally, the Division 
has assigned monitors based on internal non-public criteria. This past 
year was different. In April, I directed the Voting Section to prepare 
a written explanation of the method by which we have assigned monitors 
to jurisdictions, identifying clearly the criteria upon which 
monitoring decisions would be made.
    On May 4, 2004, Division leadership met with representatives of 
many civil rights and voting-related organizations. During that 
meeting, I presented in detail the Division's plans for preparing for 
the general election. This included a lengthy explanation of the 
process by which we would select jurisdictions to be monitored. 
Moreover, we distributed guidance on how to request monitoring for a 
jurisdiction, along with the information necessary to substantiate such 
requests. In addition to meeting with the Division, leading civil 
rights groups' leaders were also invited to make a presentation at the 
Attorney General's Ballot Access and Voting Integrity Symposium in July 
2004. This Symposium was designed to train Department of Justice 
personnel on the work both of the Civil Rights Division and the 
Criminal Division.
    Ultimately, with regard to election monitoring, the Voting Section 
identified 14 jurisdictions in nine states that were operating under 
federal court orders or decrees, all of which were monitored. Moreover, 
the Voting Section identified 58 additional jurisdictions as 
appropriate for monitoring, often through our vigorous affirmative 
outreach to minority advocates, and all were monitored. In addition, we 
received written requests from civil rights and election organizations 
that we send personnel to an additional 15 jurisdictions. Most of the 
referred jurisdictions satisfied the protocol and were assigned 
monitors or observers.
Law Enforcement & Local Accountability
    As I noted, it is not sufficient only that elections be monitored; 
federal laws also must be enforced. Therefore, the final prong to the 
Division's election protection efforts was a robust litigation and 
enforcement effort.
            Ballot Access: Voting Rights Act Section 203, the National 
                    Voter Registration Act and Uniformed & Overseas 
                    Voters.
    First, during 2004, the Division enjoyed tremendous success 
enforcing those statutes that relate principally to access to the voter 
registration and balloting processes.
    During 2004, we established record levels of protection for 
minority language voters under Section 203 of the Voting Rights Act. 
Section 203 provides that all ``election materials and information'' 
available in English must also be available in the applicable minority 
language for those who need it. This includes ballots, instructions and 
other materials. Often, jurisdictions even provide bilingual 
pollworkers to assist voters. The statute is designed to ensure that 
citizens not only have the opportunity to vote, but also to ensure that 
they cast an informed and knowing vote.
    In 2004, the Civil Rights Division has filed and successfully 
resolved as many Section 203 cases as it had filed in the previous 8 
years combined. These cases have had substantial impact. In Harris 
County (Houston) TX, for example, the Division entered into a 
Memorandum of Understanding with the county to address the language 
needs of citizens of Vietnamese background. Complaints were also filed 
in San Diego to address language needs of Latino and Filipino voters; 
and in Suffolk County, NY; Yakima County, WA; and Ventura County, CA to 
address language needs of Latino voters. Other cases involved minority 
language voters in Passaic County, New Jersey, and Cibola, Soccoro and 
Sandoval Counties, New Mexico. Together, the Division's work last year 
affected more minority language voters than all previous Section 203 
cases combined.
    Under the National Voter Registration Act, better known as ``Motor 
Voter,'' the Division filed lawsuits against Pulaski County, Arkansas 
and against the State of New York; resolved two investigations; and 
opened three new NVRA investigations.
    The Arkansas suit challenged the County's improper voter 
registration and election rolls maintenance for federal elections. The 
resulting consent decree required the county to implement far reaching 
policy and process changes, including restoring improperly removed 
voters; removing the names of deceased, departed, or ineligible voters; 
and providing electronic ``polling place lookup'' systems.
    The New York suit involves inadequate provision of voter 
registration opportunities at offices located at state institutions of 
higher education serving disabled students. This case is still ongoing.
    With so many servicemen and servicewomen oversees, the Division's 
work under the Uniformed and Citizen Overseas Absentee Voting Act 
(UOCAVA) was similarly critical in 2004. During the primary elections, 
the Division filed suit against the states of Georgia and Pennsylvania 
for failing to give overseas voters a meaningful opportunity to 
participate in the election by mailing absentee ballots too late. The 
Division obtained settlement agreements securing the rights of such 
voters under UOCAVA.
            Election Official Accountability--The Help America Vote Act
    Also, the Division was active in enforcing the Help America Vote 
Act of 2002.
    During 2004, we filed the Division's first lawsuits to enforce 
HAVA, against San Benito County, CA and Westchester County, NY. Both 
suits were over the counties' lack of compliance with HAVA because poll 
officials failed to post the required voter information. San Benito 
County also failed to have a system for provisional voters to find out 
whether their ballots were accepted and counted. Consent agreements 
have been reached in both cases.
    The Department also participated in several lawsuits that 
concerned, in part, the scope of HAVA.
    Among its many provisions, HAVA requires that state and local 
election officials permit any individual, whose name does not appear on 
the official registration list for a polling place or whose eligibility 
is otherwise questioned, to cast a provisional ballot if the individual 
declares that he ``is a registered voter in the jurisdiction in which 
[he] desires to vote. . . .'' Congress, however, did not define the 
word ``jurisdiction'' for purposes of HAVA. Some states defined 
jurisdiction to mean a voting precinct, thus requiring a voter to go to 
his precinct to cast a provisional ballot to be counted. This preserves 
these states' traditional precinct-based voting system. These states 
all directed election officials to help voters find the precinct in 
which they were supposed to vote, so they could cast their provisional 
ballot. Other states, however, opted to depart from the traditional 
precinct based system, defining jurisdiction to mean counties, or even 
larger geographic subdivisions. As a result, persons in these states 
could cast a provisional ballot that would be counted in any polling 
place within that larger geographic subdivision, and did not have to go 
to their voting precinct.
    Plaintiffs challenged several states' determinations on this 
matter. One such suit challenged Michigan's decision to maintain its 
traditional precinct-based voting jurisdiction system. At the request 
of Attorney General of the State of Michigan, we provided views on this 
matter to the court. The United States does not view HAVA as 
prohibiting precinct-based voting. Because Congress did not define the 
term jurisdiction, but rather left its definition to each state, state 
law could require a voter to be registered in a particular polling 
place ``jurisdiction'' as a requirement of voter eligibility. This 
matter, it should be noted, was only one of numerous legal issues 
raised in those cases; we appropriately tailored the brief to address 
only this narrow federal issue regarding HAVA. The final court of 
review in each case to consider this issue agreed with the Department's 
view,\2\ although the Sixth Circuit disagreed on the issue of who may 
file a lawsuit on this issue in the first place.\3\
---------------------------------------------------------------------------
    \2\ Although referenced in this statement, no footnote was provided 
in this statement.
    \3\HAVA, expressly delegates to the Attorney General authority to 
enforce the statute in federal court. Separately, HAVA requires States 
to create state-level administrative processes for entertaining private 
HAVA complaints. The degree to which statutes that do not provide a 
private right of action within their own four corners may be enforced 
through Section 1983 has narrowed in recent years. Most recently, in 
Gonzaga v. Doe (2002), the Court held that before a statute may be 
enforced by a private individual through Section 1983, Congress must 
have (i) unambiguously manifested its intent to create an individual 
right, and (ii) not intended for that right to be enforced exclusively 
through one or more specific means other than Section 1983. Moreover, 
where Congress has entrusted a statute to the Department's exclusive 
charge, the Department will defend vigorously Congress' enforcement 
scheme.
---------------------------------------------------------------------------
  The United States argued that these congressionally created, 
distinct, and separate enforcement schemes strongly suggest that 
Congress did not intend for private individuals to bring HAVA-derived 
actions in federal court pursuant to Section 1983. Rather, these 
provisions strongly suggest that Congress intended to avoid prolonged 
election litigation, and intended rather to promote a uniform national 
standard enforced in court by the Attorney General alone.
  The legislative history supports this view. Indeed, Congress debated 
whether to include an express private right of action in HAVA, and 
declined to do so. Senator Dodd, a HAVA sponsor and Senate conferee, 
recognized that HAVA was not privately enforceable, when he said:

      While I would have preferred that we extend [a] private 
      right of action. . . , the House simply would not entertain 
      such an enforcement provision. Nor would they accept 
      federal judicial review of any adverse decision by a State 
      administrative body.

148 Cong. Rec. S10488-02, S10512 (Oct. 16, 2002).
    Matters actually resolved through litigation are but the tip of the 
Division's voting rights efforts. Rather, the Division's Voting Section 
has a strong technical assistance program, which actively promotes 
compliance with federal voting laws, and resolves many matters well 
before they reach the judicial action stage.
    Under Section 203 of the Voting Rights Act, for example, we have 
devoted substantial resources to pre-election outreach, compliance and 
technical assistant. After the results of the 2000 census were 
announced in 2002, we wrote to each jurisdiction covered by Section 203 
to appraise it of its obligations. Moreover, we personally contacted by 
phone each of the newly covered jurisdictions. This massive outreach 
effort promoted substantial awareness of a previously unknown 
obligation.
    As part of the continuing initiative to encourage voluntary 
compliance by covered jurisdictions, I mailed letters on August 31, 
2004 to more than 400 Section 203 and 4(f)(4) covered jurisdictions 
reminding them again of their obligations to provide Spanish and other 
minority language assistance, and offering guidance on how to achieve 
compliance.
    We conducted a similarly extensive outreach and educational 
campaign with regard to the provisions of HAVA, particularly those that 
took effect on January 1, 2004. We wrote each chief state election 
official regarding HAVA's requirements. Then, when HAVA took effect, we 
widely publicized its newly effective provisions. Also during 2003 and 
2004, Division personnel handled numerous inquiries, responding 
informally to many requests from states and organizations. Those 
responses are posted on our web site. Next, in early 2004, we sent 
informal advisories to six states raising specific concerns over their 
ability to comply with HAVA in time for their first elections for 
federal office in 2004. After the first round of federal primary 
elections in February and March 2004, we wrote to 3 states raising 
compliance concerns noted by monitors. Finally, we conducted a detailed 
state-by-state analysis of compliance with HAVA's statewide voter 
registration database requirements. This analysis has resulted in 
contact with several states regarding this issue and on-site visits to 
3 states.
    As of January 2004, HAVA's requirements for provisional voting, 
identification for first-time voters who registered by mail, voter 
information postings, and statewide voter registration databases (for 
those few states that did not apply for a waiver until January 2006), 
went into effect and were required to be implemented for the 2004 
Presidential Election. As of January 2006, all state voting systems 
must meet the federal voting systems standards of Section 301 including 
permitting voters to correct voting errors and verify their votes; 
meeting disability and alternative language accessibility requirements; 
and providing for a manual audit capacity.
    The Division sent warning letters or informal advisories early in 
2004 to six states (Michigan, Mississippi, New York, Massachusetts, 
Connecticut, and Rhode Island) raising specific concerns regarding 
whether they would be in compliance with all of HAVA's new requirements 
(i.e., provisional voting, voter identification and voter information 
postings) by the time of their first federal elections in 2004. After 
the first round of federal primary elections in early 2004, the 
Division sent warning letters to three states (California, Mississippi 
and Texas) to raise specific HAVA compliance issues regarding 
provisional voting, voter identification and voter information postings 
that our observers and monitors had noted in their early elections. 
These letters and follow-up contacts with the states spurred them to 
take additional actions to bring about full HAVA compliance.
    We also offered states technical assistance with respect to the 
requirements of the NVRA and also UOCAVA. We twice wrote each chief 
state election official regarding these obligations. With regard to 
UOCAVA we worked closely with the Department of Defense to ensure that 
ballots were distributed timely to troops serving in the field, and 
again I wrote jointly with the Pentagon to remind States of their 
obligations.
    Finally, we wrote to the chief election official of the several 
Section 5 states affected by the 2004 hurricanes, namely Florida, 
Alabama, Mississippi, Louisiana, and Georgia. We reminded these states 
of their obligation to submit any emergency voting related changes 
necessitated by the hurricanes, such as changes in polling locations, 
to the Attorney General. We also offered to provide expedited review 
and consideration.
Election Day Activities
    The Division's efforts throughout 2004 culminated in Election Day. 
As we approached that deadline, our efforts and their intensity 
increased.
            Complaint Gathering and Review
    Three weeks prior to Election Day, we initiated a comprehensive 
daily review of national media sources and election-related news 
services. Our attorneys combed the Internet and newspapers to identify 
on a daily basis all reported possible voting rights violations. The 
Voting Section opened inquiries into dozens of potential improprieties 
based on this data. In addition, we also gathered allegations of 
potential problems from national civil rights and voting rights groups.
    The vast majority of these matters were resolved almost 
immediately. For example, in response to intimidation concerns, we 
worked out protocols with sheriffs in Duval and Broward Counties, 
Florida to minimize a visible police presence at or near polling 
places. We also met with political party/campaign leaders in both camps 
to discuss the appropriate circumstances for challenging voters. 
Challenges thereafter were few and far between. We also looked into 
fears of possible racial unrest in Arizona, resulting in part from the 
presence of Proposition 200 on the ballot. As a result of our 
inquiries, election officials coordinated with law enforcement to 
develop contingency plans to respond to any Election Day armed 
intimidation.
    We also monitored, inter alia, allegations of improper felon 
purges, allegations of law enforcement intimidation of voters, unequal 
distribution of voting locations and machines, improper efforts to 
disrupt or intimidate legitimate poll watching activities, improper 
demands for identification, improper voter challenges, and improper 
maintenance of voting rolls. As might be expected, many of these 
reports turned out to be less than reported, the result of rumor and 
suspicion. But, wherever allegations bore fruit we fully and diligently 
investigated.
    Many allegations were referred to the Public Integrity Section of 
the Criminal Division. For instance, we noted media reports that a 
voter registration firm operating in Nevada and other locations was 
accused of destroying voter registrations. Such activity, if true, 
implicates the public integrity criminal laws, and a referral to the 
Criminal Division is appropriate, which, under the Department's 
longstanding practice, then takes the lead. This follows as Criminal 
prosecutions proceed under much tighter evidentiary and burden rules. 
That said, once the Criminal Division has completed its work, civil 
rights actions may follow.
    While most of these inquiries were resolved pre-election, some 
raised allegations of serious civil rights violations that required 
additional investigation. I have directed the Voting Section to follow 
up fully on all election-related investigations.
            Administrative Preparations
    On Election Day itself, the Division stood ready. We had increased 
from fewer than five to fifty the number of dedicated phone lines ready 
to handle election complaints. We had also developed a web-based 
complaint system. And, we implemented new methods of record keeping 
making certain that complaints were recorded accurately and responded 
to promptly and properly.
    On Election Day, the Voting Section received 1,088 calls on its 
expanded phone system and 134 e-mail complaints on its specially 
created complaint form placed on its website. Each of these contacts 
was entered on the new automated database created to track complaints. 
Many of these calls asked questions more appropriately referred to 
local election officials, such as where a polling place was located; 
and in these circumstances, referrals were made. Approximately 600 
calls and e-mails were referred to attorneys, who spoke directly with 
the complainant. Approximately 130 were designated for further follow-
up. A significant number of these complaints were subsequently resolved 
over the phone by Section staff and/or follow-up investigations by 
attorney staff on Election Day. Many of these resolutions resulted in 
state and local officials taking steps to ensure the complaining party 
was permitted to vote.
    A few examples of matters resolved quickly by telephone include:

          An 18-year-old in Louisiana told that she could not 
        vote for President--we resolved the matter with election 
        officials;

          Poll workers in Illinois using racially derogatory 
        language towards voters of middle-eastern descent--we resolved 
        the matter with election officials;

          Reports of difficulties properly distributing and 
        segregating provisional ballots--we advised election officials 
        as to the applicable requirements of HAVA; and,

          Reports that individuals in line at the time polls 
        closed would not be permitted to vote--we confirmed with local 
        officials that everyone in line at that time would be permitted 
        to vote;

    Twelve investigations, opened as a result of election-day 
complaints, remain pending. In addition, during the pre-election 
period, the Section received complaints in sixteen jurisdictions where 
Section 203 investigations were ongoing at the time of the election. 
These investigations remain open. Investigations of an additional six 
pre-election complaints remain open, as do several matters referred to 
the Criminal Division's Public Integrity Section for investigation.
            Election Monitoring Program Performance
    On Election Day, our monitors and observers performed 
superlatively. As I noted, last year's monitoring effort was the 
Division's largest ever.
    In short, during 2004, the Civil Rights Division mounted its most 
extensive election protection effort in its history, and accomplished 
much of which to be proud. Looking forward, the coming year should see 
a focus on more traditional voting rights matters. We recently 
assembled a team of attorneys to look at Section 2 matters. We have 
already filed one lawsuit under Section 2 this year against Noxubee 
County, Mississippi, and we are considering the potential for 
investigation in about half a dozen other jurisdictions. In response to 
the Supreme Court's decision in Georgia v. Ashcroft,  we have updated 
our analytical framework for Section 5 analysis of redistricting plans, 
having vigorously litigated the Georgia case on remand before the case 
was dismissed prior to trial. And, with respect to HAVA, we are now 
looking forward to assisting States in the run-up to January 1, 2006, 
when the balance of its requirements take effect.
    By several accounts, the last twelve months have been marked with 
unprecedented access to the ballot. To wit, the Election Assistance 
Commission in its February 2005 ``Report to Congress on Election Reform 
Progress in 2004'' stated:

          1.5 million people cast provisional ballots.

          Over 1 million provisional votes were counted (68%).

          17 states used provisional ballots for the first 
        time.

          Since 2000, at least 25% of voters have used new 
        voting equipment, with another 30% to be using new equipment by 
        2006.

          At least nine states had developed and used a 
        statewide voter registration database to help increase access 
        to the polls.

    Likewise, as stated in the CalTech/MIT Voting Technology Project's 
February 2005 report entitled, ``Residual Votes in the 2004 Election'':

        ``17 million more people voted in 2004 than voted in 2000, a 
        14% increase--approximately 1 million of those can be 
        attributed to reforms in voting machines and administrative 
        practices.

        Of the 37 states that reported total turnout in 2004, the 
        residual vote rate was 1.1% in 2004, a reduction from the 1.9% 
        in 2000--residual votes were those not counted because of 
        mistakes, overvotes, or undervotes--this equals a recovery of 1 
        million lost votes.

        Florida and Georgia saw the biggest decreases in the residual 
        vote rate from 2000 to 2004 at 2.5% and 3.1%, respectively

        Taking the American electoral system as a whole, the emerging 
        evidence is that the election of 2004 was run much better than 
        the election of 2000.''
HOUSING AND CIVIL ENFORCEMENT
    The Civil Rights laws help to guarantee the ability of every 
American to succeed. Obtaining education, employment, housing, access 
to public accommodations, and the financial markets are fundamental 
stepping-stones to personal and professional success--and they must be 
provided without illegal discrimination based on race, national origin, 
and other prohibited factors.
    Indeed, as President Bush recently noted:

        At the start of this new century, we will continue to teach 
        habits of respect to each generation. We will continue to 
        enforce laws against racial discrimination in education and 
        housing and public accommodations. We'll continue working to 
        spread hope and opportunity to African Americans with no 
        inheritance but their character--by giving them greater access 
        to capital and education, and the chance to own and build and 
        dream for the future. In this way, African Americans can pass 
        on a better life and a better nation to their children and 
        their grandchildren, and that's what we want in America.

The work of our housing and civil enforcement section squarely advances 
this mission.
Fair Housing
    President Bush has spoken of the need to create an ``Ownership 
Society,'' an America in which all citizens may find the added measure 
of comfort and security that comes from owning their own home. A 
necessary step in that process is making sure that all Americans may 
buy, sell, or enjoy the home of their choice without fear of illegal 
discrimination.
    The Division is charged with ensuring non-discriminatory access to 
housing, public accommodations, and credit. We have worked hard to meet 
this weighty responsibility. During CY 2004 alone, the Housing Section 
filed 43 lawsuits, including 24 pattern or practice cases, an 85 
percent increase over CY 2003, and an enforcement rate that is 9 
percent higher than the average number of filings over the previous 7 
years. Thus far, in FY 2005, we already filed 17 suits, a pace that 
promises to make this an outstanding year.
    The facts of these cases remind us that unfortunately racism 
persists today.
    In one case, we filed a lawsuit against the owners and managers of 
the Foster Apartments, in St. Bernard Parish, Louisiana, alleging 
discrimination against African-Americans who were seeking housing. 
Specifically, the defendants told black prospective applicants that 
they had no apartments available for rent while at the same time 
telling white applicants that apartments were available. And just last 
month, in a case with disturbingly similar allegations, we filed a suit 
alleging that an apartment complex in Boaz, Alabama discriminated 
against African-Americans by, among other things, falsely telling them 
that no apartments were available
    Likewise, in May 2004, the court entered a Consent Decree in the 
United States v. Habersham Properties Inc., et al.,  resolving our 
allegations of a pattern or practice of race discrimination against 
African-American prospective renters at the Crescent Court apartment 
complex in Decatur, Georgia. This case came to our attention based on a 
complaint from an African-American woman who was told that no 
apartments were available when she went to the complex in person, but 
was informed of availabilities when she called back on the telephone. 
We confirmed the discrimination through the Division's testing program. 
During the testing, the rental agent consistently allowed white testers 
to inspect available apartments and gave them the opportunity to rent, 
while falsely telling black testers that there were no apartments 
available for inspection or for rent. The consent decree in this case 
requires the defendants to: adopt non-discriminatory policies and 
procedures; provide training for employees on the requirements of the 
Fair Housing Act; submit to compliance testing, and maintain records 
and submit reports to the Division. The defendants paid a total of 
$180,000 in damages: $170,000 in damages for aggrieved persons 
(including the African-American woman who brought the case to our 
attention) and a $10,000 civil penalty.
    Discrimination is not limited to the basis of race. Consider, for 
example, the facts of a case we took to trial: United States v. Veal.  
We alleged a pattern or practice of discrimination by the defendant 
landlords, who systematically sought sexual favors from female tenants. 
One of the victims was 19 years old and living in her car with her two 
children when she moved into the top floor of a duplex owned by the 
defendants. On two separate occasions, one defendant came to her house, 
let himself in unannounced, and forced her to have sex with him on her 
bed. After these incidences, she used the medicine she was receiving to 
treat her sickle cell disease to try to kill herself. Another victim 
was homeless and living in her car, separated from her children, when 
she rented a home from the Veal's. After resisting several incidents 
where a defendant fondled her and refused to stop, the victim 
considered committing suicide to escape the harassment. In this case we 
secured a jury award of $1.1 million, the largest FHA award in the 
Division's history.
Fair Lending
    Our lawsuits have not only defended the rights of Americans to 
obtain rental housing, but also to purchase houses. While a lender may 
legitimately consider a broad range of factors in considering whether 
to make a loan, race has no place in determining creditworthiness. 
``Redlining'' is the term employed to describe a lender's refusal to 
lend in certain areas based on the race of the area's residents. This 
is a shortsighted and offensive practice based on stereotypes, and it 
must end.
    During 2004 the Division filed and resolved two major redlining 
cases under the Fair Housing Act and the Equal Credit Opportunity Act 
(``ECOA''). Our lawsuit against Old Kent Bank alleged that the bank 
redlined the predominantly African-American City of Detroit by failing 
to provide either small business or residential lending services within 
city limits. Pursuant to the May 2004 settlement agreement, the bank's 
successor will open three new branch offices, spend $200,000 for 
consumer education programs, and provide $3 million in Bank-subsidized 
loans to the redlined areas.
    Our second case in this area was against First American Bank. We 
alleged that the bank redlined the predominantly African American and 
Hispanic neighborhoods in the Chicago and Kankakee metropolitan areas 
by failing to provide residential, small business, or consumer lending 
services. This case resulted from the first redlining referral ever to 
the Department by the Federal Reserve Board. Pursuant to the July 2004 
consent order, First American Bank will open four new branch offices, 
spend $700,000 on outreach and consumer education programs, and provide 
$5 million in Bank-subsidized loans to qualified residents of the 
redlined areas.
    This was the first time the Division has ever filed two such cases 
in the same year. These lawsuits represented firsts in another area as 
well; they were the Division's first two suits filed under the Fair 
Housing Act and ECOA that challenged redlining not only for residential 
mortgage loans but also small business loans. As President Bush has 
observed repeatedly, small businesses are the engine that drives the 
great American economy. We will remain vigilant in ensuring that 
Americans have equal access to the capital markets that allow small 
businesses to grow and prosper.
Public Accommodations & Equal Land Use
    Last year also saw the Division successfully bring a lawsuit 
against Cracker Barrel restaurants that alleged a pattern or practice 
of racial discrimination in a public accommodation, in violation of 
Title II of the Civil Rights Act of 1964. Following an extensive 
investigation, the Division uncovered evidence that Cracker Barrel 
employees intentionally provided poor or no service to African-American 
customers, segregated seating in their stores, and ignored complaints 
of such discriminatory activity. In May 2004, we resolved the matter 
through a consent decree that required the company to implement 
comprehensive reforms of its policies, training and investigations of 
discrimination complaints. The Section is now working closely with the 
Auditor to ensure full compliance.
    The Housing and Civil Enforcement Section is charged additionally 
with fighting religious discrimination in a variety of contexts. This 
past year we were again active in defending and enforcing the Religious 
Land Use and Institutionalized Persons Act, or RLUIPA, which Congress 
passed in 2000. During 2004, we opened nine investigations, and 
successfully resolved three investigations where the jurisdiction opted 
to comply with the law without the need for formal action by the 
Division. Of particular note, this January the Division dismissed its 
complaint in United States v. Maui Planning Commission,  our first 
contested RLUIPA matter, after the County agreed to issue to the 
religious community a previously denied construction permit. The 
Division also secured two significant appellate victories, cementing 
RLUIPA's constitutionality and reach. In Midrash Sephardi v. Town of 
Surfside, the Eleventh Circuit agreed with us first that RLUIPA 
constitutes a valid exercise of Congressional authority, and second 
that the statute was violated where religious assemblies are barred 
absolutely from a district where fraternal lodges such as Masonic 
temples are permitted to locate. In Sts. Constantine and Helen v. New 
Berlin,  the Seventh Circuit on February 1, 2005, held that a Wisconsin 
city violated RLUIPA by imposing unreasonable procedural requirements 
on a Greek Orthodox congregation seeking to build a church. The Civil 
Rights Division briefed and argued the case as amicus.
                       employment discrimination
    Combating employment discrimination ranks among the Division's most 
longstanding obligations. As the Committee knows, Title VII of the 
Civil Rights Act of 1964 prohibits employment discrimination on the 
basis of race, color, religion, sex or national origin. The vast 
majority of employment discrimination allegations are raised against 
private employers, and are processed and/or prosecuted by the Equal 
Employment Opportunity Commission (``EEOC''). The Civil Rights Division 
has responsibitity for only a small, but vitally important aspect of 
Title VII enforcement: We have responsibility for allegations raised 
against those employers who should set the standard for compliance--
public employers. During 2004, we achieved record levels of enforcement 
in that area.
Section 706--Individual Allegations of Employment Discrimination
    The bulk of the Division's work involves individual claims of 
discrimination asserted under Section 706 of Title VII. Such 
allegations are first filed with and investigated by the EEOC. If the 
EEOC determines that a suit may lie, the matter is referred to the 
Division for enforcement. During FY 2004, we initiated investigations 
on 33 charges of individual discrimination, and filed eight lawsuits 
under Sec. 706, the most filed since 2000, and just 3 short of a 
record-setting year.
    These included several extremely significant actions:
    We sued, for instance, the Pattonville-Bridgeton Fire Protection 
District, alleging that it subjected its only black firefighter to 
egregious racial harassment at work. During the time he was employed, 
he was the target of repeated, offensive racial slurs, which culminated 
in June 2002 when his car was vandalized with the word ``n----r'' 
scratched on its driver's door. Trial has been set for the summer of 
2005.
    In United States v. City of Baltimore,  we alleged severe and 
pervasive sexual harassment of a female carpenter. Specifically, we 
alleged that she had been subjected to acts of indecent exposure by a 
harassing supervisor, who prominently displayed pornography in the 
workplace, simulated sexual acts while telling the female carpenter 
that he wanted to perform those acts on her, and encouraged sexually 
offensive behavior and unwanted touching by her coworkers. The Division 
successfully obtained a comprehensive consent order.
    We similarly filed suit against the District of Columbia Fire 
Department, challenging a policy which allegedly required new female 
emergency medical technicians to undergo a pregnancy test, and which 
required them either to resign or undergo an abortion in the event that 
they ``failed'' that test.
Section 707--Pattern or Practice Cases
    In addition to filing individual claims, the Division is also 
charged with independent authority to investigate on its own and to 
challenge patterns or practices of employment discrimination. This 
pattern or practice jurisdiction is the heart of the Division's 
practice. Such suits are extremely complex, time consuming, and 
resource-intensive. As a result, historically, the Division has managed 
only one per year. This past year, however, we prevailed in a major 
pattern or practice trial and we filed four additional lawsuits, the 
most filed in any given year since at least the mid-1990s.
    In United States v. Delaware State Police,  we filed suit against 
the Delaware State Police alleging that the State Police was engaged in 
a ``pattern or practice'' of discrimination against African Americans 
in violation of Title VII. Specifically, we alleged that a 
qualifications test used by the State Police had a discriminatory 
disparate impact against African Americans, was not ``job related and 
consistent with business necessity'' and, therefore, violated Title 
VII. The case was bifurcated into liability and damages proceedings. In 
August 2003, the court held a trial to determine liability.
    At trial, the Department submitted the names of 97 African-
Americans who failed the test but who nevertheless obtained law 
enforcement certification and employment elsewhere--including the 
United States Secret Service and police agencies in Delaware, Maryland, 
New Jersey and Pennsylvania. On March 22, 2004, the court issued a 
decision agreeing with our position and concluding that the State 
Police had set the cut score for the challenged examination ``at an 
impermissibly high level'' and, accordingly, determined that the State 
Police's use of the examination violated Title VII. We are currently in 
negotiations with the State to attempt to resolve liability issues 
without having to resort to further contested litigation.
    In United States v. Erie (Pa) Police Department,  we have alleged 
that the police department was engaged in a pattern or practice of 
discrimination against women in violation of Section 707 of Title VII, 
by using a physical agility test for entry-level police officers that 
resulted in disparate impact on women. This suit is presently in trial.
    In United States v. Gallup, New Mexico,  we alleged that the City 
engaged in a pattern or practice of employment discrimination in hiring 
in all departments against American Indians based on race. After 
negotiations, we reached a settlement and the Court entered a consent 
decree. The City has agreed to: (1) train employees engaged in hiring 
and recruitment; (2) implement policy changes; (3) pay up to $300,000 
in monetary relief; and (4) accept 27 priority hires in various City 
departments with remedial seniority.
    In United States v. Los Angeles County Metropolitan Transportation 
Authority,  we alleged that the MTA has engaged in a pattern or 
practice of religious discrimination by failing to reasonably 
accommodate employees and applicants who are unable to comply with 
MTA's requirement that they be available to work weekends, on any 
shift, at any location. The lawsuit, also filed under Sec.  706 of 
Title VII, alleges that the MTA failed to accommodate a former MTA 
employee because of his Jewish faith by failing to reasonably 
accommodate his religious practice of observing the Sabbath and 
subsequently discharging him from employment.
    Finally, we took steps to protect Sikhs and Muslims in United 
States v. New York Metropolitan Transit Authority.  We alleged that the 
New York MTA has engaged in a pattern or practice of discrimination in 
employment on the basis of religion in violation of Title VII by: (1) 
selectively enforcing the MTA's uniform policies regarding head 
coverings toward Muslim and Sikh bus and train operators; and, (2) 
failing or refusing to reasonably accommodate the religious beliefs and 
practices of Muslim and Sikh bus and train operators.
Uniformed Service-members Employment Rights and Restoration Act
    In addition to its traditional obligations under Title VII, the 
Division recently took responsibility for enforcing the Uniformed 
Service-members Employment Rights and Restoration Act (``USERRA''). 
USERRA prohibits an employer from denying any benefit of employment on 
the basis of an individual's membership, application for membership, 
performance of service, application for service, or obligation for 
service in the uniformed services.
    USERRA matters are referred to the Civil Rights Division by the 
Department of Labor or by the individual who alleges the 
discrimination. In each matter referred to the Division, we can either 
pursue the case on behalf of the alleged victim or issue a ``right to 
sue'' letter much like the EEOC does in employment cases. Since October 
of 2004, the Division has received approximately 60 referrals. So far, 
we have initiated 16 investigations and authorized one lawsuit.
    Needless to say, in light of the elevated number of reservists and 
National Guard members leaving civilian life to answer their country's 
call, it is imperative that we be ready to meet this challenge. This 
afternoon, I will be attending at training session for Division 
attorneys being held at the Justice Department to better acquaint our 
attorneys with the statute.
Discrimination against Immigrants
    In many areas of the country and in many occupations, new and 
recent immigrants make up a significant portion of the labor force. 
These individuals often face discrimination because they look or sound 
``foreign.'' When work-authorized immigrants, naturalized U.S. 
citizens, or native-born U.S. citizens encounter workplace 
discrimination linked to their ``foreign'' appearance, our Office of 
Special Counsel for Immigration-Related Unfair Employment Practices 
(known as ``OSC'') steps in. OSC enforces the anti-discrimination 
provision of the Immigration Reform and Control Act of 1986 (``IRCA'').
    OSC protects lawful workers from discrimination linked to their 
citizenship status or national origin. Such discrimination often arises 
in the review process mandated by IRCA, which requires employers to 
verify the employment eligibility of each new hire. When employers ask 
individuals who are perceived as ``foreign'' for more documents than 
are required for this process, or reject valid documents, they may be 
engaging in document abuse. While employers may restrict the 
citizenship status of new hires if permitted under law, regulation or 
government contract, OSC also addresses cases where workers are 
wrongfully denied employment because of their citizenship status.
    For example, in Taye v. Crystal Care Center, we reached a pre-suit 
settlement agreement resolving a complaint brought to our attention by 
a work authorized refugee from Liberia who was legally authorized to 
work. It turned out that his employer's eligibility verification 
procedures were discriminatory because the company failed to accept 
unrestricted Social Security cards and driver's licenses from non-
citizens for employment eligibility verification purposes, but accepted 
such documents from citizens. Since the beginning of 2004, we have 
resolved more than 250 charges alleging immigration-related unfair 
employment practices.
    OSC also continues its successful program of telephone 
interventions, allowing employers and workers to contact OSC 
immediately as questions about discrimination arise. Since early 2004, 
we have resolved over 260 employer and worker requests for immediate 
assistance through our telephone intervention program. We also maintain 
national toll-free telephone lines, for both workers and employers, 
fielding over 19,000 calls since the beginning of fiscal year 2004. We 
also distributed approximately 206,000 individual pieces of educational 
materials in FY 2004, about 30 percent of which were in Spanish.
    In addition to resolving complaints, we have been reaching out 
actively to employers and community organizations so that the 
requirements of the law are clearly explained. We operate a grant 
program, through which the Civil Rights Division and its grantees have 
conducted 822 outreach presentations in fiscal years 2004 and 2005. 
Just last month we announced the availability of funds and explained 
the application process for our next round of grants.
            disability rights and the new freedom initiative
    I had the privilege this past August of hosting a ceremony at the 
Department of Justice to commemorate the 14th anniversary of the 
signing of the ADA. The Division marked the event with the signing of 
the 100th settlement agreement reached under Project Civic Access. As 
you know, through Project Civic Access the Division works with 
municipalities to bring all of their public spaces, facilities, and 
services into compliance with federal law. These agreements quite 
literally open civic life up to participation by individuals with all 
sorts of disabilities. The gathering featured the remarks of several 
local officials as well as individuals with disabilities from around 
the nation who have been helped by Project Civic Access.
    Nowhere was the beneficial effect of this program more evident than 
in the comments of Ross Palmer, a 9 year old from Santa Fe, New Mexico, 
who suffers from cerebral palsy. Asked what the changes made under the 
Project meant to him, he said quite simply:

        I want to say that the Americans with Disabilities Act allowed 
        me to get places, gave me more to do. I will be able to go 
        places and get around the neighborhood a lot easier and safer. 
        Thanks.

    That is the simple truth of our work in the disability area. 
Without simple modifications such as curb cuts, many Americans with 
disabilities are quite literally prisoners in their own homes. The New 
Freedom Initiative changes that. Furthering this goal, during 2004 we 
successfully concluded 39 Project Civic Access Agreements, the most of 
any year since the Project began.
Disability Rights Litigation
    The Division has continued to pursue aggressively complaints of 
disability discrimination. During FY 2004, the Disability Rights 
Section resolved 353 such allegations through a combination of formal 
and informal means, including contested litigation, settlement 
agreements, and mediation. These have resolved complaints involving 
such facets of everyday life as car rental agencies, grocery and 
convenience stores, motels, and child care centers.
    Separately, the Housing and Civil Enforcement Section handled 
approximately a dozen cases to enforce the FHA's accessibility 
requirements, including eight new cases. In addition, at the end of the 
year, the Section was conducting pre-suit negotiations in four cases. 
We entered into nine consent decrees in 2004 involving FHA's 
accessibility requirements. Courts also entered six of these consent 
decrees during 2004 and the three other consent decrees were awaiting 
Court approval at the end of the fiscal year.
    Of particular interest, the Division resolved two of the largest 
design and construction cases ever filed.
    In United States v. Deer Run Management Co., Inc.,  we filed and 
resolved a design and construction suit under the FHA and the new 
construction requirements of the Americans with Disabilities Act. The 
consent decree, entered November 24, 2004, covers over 4,000 ground 
units and affects 34 apartment complexes in 6 states. The agreement 
also provides for a $1.2 million fund to compensate individuals who 
were injured by the inaccessible housing, and for a $30,000 civil 
penalty to the United States.
    Separately, we also filed and resolved a suit against the Housing 
Authority of Baltimore City. This was the Division's first case ever 
brought against a public housing authority to enforce HUD's 
Rehabilitation Act regulations. If approved by the court, it would 
require extensive program and policy changes, the provision of more 
than 800 heightened-accessible units, 2,000 new housing opportunities 
for individuals with disabilities, and $1,039,000 in damages. This suit 
is particularly significant in light of the Third Circuit Court of 
Appeals' decision in Three Rivers Independent Living Center v. Housing 
Authority of the City of Pittsburgh,  which the Court concludes that 
private plaintiffs may not sue to enforce HUD's FHA guidelines.
    Of major significance, this past year the Department's position 
prevailed before the Supreme Court in Tennessee v. Lane.  The Supreme 
Court ruled that private individuals may maintain a suit for money 
damages against the States in cases brought to enforce access to courts 
under Title II of the ADA. Since that decision, the Department has 
defended the constitutionality of Title II in 12 lawsuits in areas such 
as education, public transportation, licensing, prisons, and the 
provision of community-based services.
Voluntary Compliance & Technical Assistance Programs
    We have continued to devote substantial resources to promoting 
voluntary compliance with the ADA. Our success in doing so is reflected 
in the significantly high number of matters resolved. The Division 
continues to operate an extremely promising mediation program, which 
during 2004 successfully resolved 74 percent of the matters referred to 
it--this process brings more relief to more individuals faster and with 
less rancor than traditional litigation.
    We also continue to work hard to provide compliance and technical 
assistance to business owners and individuals with disabilities alike. 
During 2004, our compliance assistance website, www.ada.gov, registered 
nearly 30 million hits, the most ever in a single year, ranking it 
among the most used Department websites. Our ADA Information Hotline 
provided service to more than 100,000 callers, including 48,000 who 
were personally assisted by specialists.
    We hosted, during 2004, four ADA Business Connection meetings in 
Houston, Seattle, Atlanta and Washington, D.C. The ADA Business 
Connection was launched in January 2002 to help implement the 
President's New Freedom Initiative. These meetings bring together 
leaders of national business and disability organizations to discuss 
how accessibility can make business sense. The more than 50 million 
Americans with disabilities have $175 billion to purchase the services 
and products offered by accessible business. This represents more 
purchasing power than the sought after teenage market. Accessibility 
and business profit can go hand-in-hand.
    The Division also published Guidance to assist with compliance. Of 
these, two merit particular mention. First, early in 2004, as part of 
our preparation for the primary and general elections, we published a 
33-page ADA Checklist for Polling Places,  which walks local officials 
through the process of improving accessibility at polling places. (And, 
as I mentioned earlier, this year our election monitors were trained in 
accessibility laws as well as more traditional voting rights 
protections).
    A second document that merits mention was a guide to making 
emergency services accessible, An ADA Guide for Local Governments: 
Making Community Emergency Preparedness and Response Programs 
Accessible to People.  When Florida was struck repeatedly by hurricanes 
last fall, we received reports of individuals with disabilities being 
turned away from emergency shelters. Fortunately, local officials and 
emergency response groups resolved these difficulties promptly without 
the need for the Division's intervention. Nevertheless, these anecdotes 
underscored the need for activity in this area. We published a total of 
9 technical assistance documents during 2004, in addition to providing 
Spanish language translations of 12 such documents on the new Spanish 
section of the www.ada.gov website.
    Additionally, the Division is now in the process of working to 
capture its success on the ADA voluntary compliance front in the 
Housing and Civil Enforcement Section, which enforces the disability 
provisions of the Fair Housing Act. We are presently developing a Fair 
Housing Forum to bring together the Division's legal experts with 
housing providers, architects, builders, and disability rights 
advocates. It is our hope that by fostering discussion of respective 
needs and concerns we can establish a dialogue between these important 
constituencies, and at the same time improve understanding of, and 
compliance with, this important civil rights statute.
ADA Rulemaking
    In addition, this year we initiated the process to update the ADA 
Standards for Accessible Design. On September 30, 2004, we published an 
Advance Notice of Proposed Rulemaking (ANPRM) to begin the process of 
revising the Department's regulations implementing the ADA. The 
Department must revise its ADA Standards for Accessible Design to adopt 
requirements consistent with the revised ADA Accessibility Guidelines 
published by the Architectural and Transportation Barriers Compliance 
Board (Access Board) on July 23, 2004. The revised guidelines, which 
would apply to the design, construction, and alteration of any private 
or public facility subject to the ADA, are the result of ten years of 
collaborative efforts between the federal government, disability 
groups, the design and construction industry, state and local 
government entities, and building code organizations.\4\ The public 
comment period for the advanced notice is open until May 31, 2005.
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    \4\ The ADA requires the Justice Department to publish regulations 
that include accessibility standards that are consistent with the 
guidelines published by the Access Board. The Access Board's revised 
guidelines are now effective as rulemaking guidelines for the 
Department of Justice and the Department of Transportation, but they 
have no legal effect on the public until these Departments issue final 
rules adopting them as enforceable ADA Standards.
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                    equal educational opportunities
    Last year, we continued our important work ensuring the 
availability of equal educational opportunities are available on a non-
discriminatory basis.
    The mainstay of the Educational Opportunities Section's work 
remains a substantial docket of open desegregation matters, some of 
which are many decades old. The majority of these cases have been 
inactive for years. Yet, each represents an as-of-yet unfilled mandate 
to root out the vestiges of de jure segregation to the extent 
practicable, and to return control of constitutionally compliant public 
school systems to responsible local officials. We accordingly take 
these cases very seriously.
    To ensure that districts comply with their obligations, the 
Division now actively initiates case reviews to monitor issues such as 
student assignment, faculty assignment and hiring, transportation 
policies, extracurricular activities, the availability of equitable 
facilities, and the distribution of resources. This past year, we 
initiated the largest number of case reviews in any given year, 44. In 
a number of these (17), we identified a need for further relief. All 
told, the Division in FY 2004 obtained additional relief in 23 cases 
through a combination of litigation, consent decrees, and out of court 
settlements.
    Of the Division's active desegregation matters, the most visible 
this past year was the new consent order secured in United States v. 
Chicago Board of Education,  which addressed the school district's 
failure to comply with an earlier agreement. The comprehensive decree 
addressed a variety of subjects in the third largest school district in 
the country, which enrolls over 440,000 students in 600 schools. Among 
the areas addressed are student and faculty assignment, and remedial 
educational programs and funding. As a result of this agreement--and 
our vigorous enforcement of it--minority students were given the choice 
to transfer to better performing schools. One student who took 
advantage of this option told the Chicago Tribune the difference it 
made in his life. At his old school, he said, ``kids walk up to you and 
say, `What's up? Give me your money,''' at his new school they say, 
``Hi, Terrance. How are you doing?'' The consent decree also addresses 
the district's failure to appropriately fund certain majority-minority 
schools, and to provide appropriate services to English Language 
Learners.
    Another notable lawsuit we brought last year involved Lafayette 
High School in Brooklyn, New York. We alleged that school officials 
were deliberately indifferent to the repeated and systematic harassment 
of Asian students. Several Asian students had been violently assaulted 
and abused by fellow students shouting anti-Asian racial slurs. Some 
examples of the harassment included Asian students who were subjected 
to daily verbal and physical harassment in the hallways, stairwells and 
classrooms of the schools. Other students regularly threw food, cans 
and even metal combination locks at Asian students in the school 
cafeteria. We were able to resolve the lawsuit through a consent 
decree, which was approved by the court. This was the Division's first 
ever harassment case filed under Title IV--and the first Title IV case 
filed since 1990.
    Our work in Hearn v. Muskogee School District also drew national 
attention. There we helped Nashala Hearn, a young Muslim girl, who was 
denied the right to wear a religious headscarf--a ``hijab''--to class. 
Rather than embrace the opportunity to educate children regarding other 
cultures and religions, school officials expressed concern that 
children would fear the hijab, and thus suspended Nashala until she 
removed it. We negotiated a consent decree that permitted Nashala to 
wear the hijab and modified the district's policy with respect to the 
dress code as it relates to possible discrimination on the basis of 
religion. After we prevailed, this brave young girl traveled to 
Washington where she testified before the Senate Judiciary Committee. 
``My friends can wear their crosses to school,'' she told the 
Committee. ``Why can't I wear my hijab?'' A good question indeed.
                      limited english proficiency
    While I mentioned earlier the Division's efforts for those who are 
limited-English proficient in the areas of voting and education, 
language access is equally important in other areas.
    As you may know, on June 16, 2002, the Department of Justice 
published in the Federal Register an LEP Guidance Document for 
recipients of federal financial assistance. Executive Order 13166 
requires that all federal funding agencies use the Department's 
document as a model in drafting and publishing guidance documents for 
their recipients, following approval by the Department. To date, 
seventeen agencies have published approved documents.
    The Guidance explains that while most individuals living in the 
United States read, write, speak and understand English, there are many 
individuals, however, for whom English is not their primary language. 
Based on the 2000 census, over 26 million individuals speak Spanish and 
almost 7 million individuals speak an Asian or Pacific Island language 
at home. For these individuals, language assistance is essential. 
Language for LEP individuals can be a barrier to accessing important 
benefits or services, understanding and exercising important rights, 
complying with applicable responsibilities, or understanding other 
information provided by Federally funded programs and activities. In 
certain circumstances, failure to ensure that LEP persons can 
effectively participate in or benefit from Federally assisted programs 
and activities may violate the prohibition under Title VI of the Civil 
Rights Act of 1964 and Title VI regulations against national origin 
discrimination.
    This administration is committed to improving the accessibility of 
these programs and activities to eligible LEP persons, a goal that 
reinforces its equally important commitment to promoting programs and 
activities designed to help individuals learn English. As part of 
President Bush's Firstgov En Espanol initiative, the Civil Rights 
Division has established a Spanish language site. During a two week 
period, nearly 5 percent of visits to our website homepage were to our 
Spanish language homepage--a very significant percentage. As we go 
forward, our focus in this area has turned to training federal grant 
recipients so they will be able to provide language assistance for 
individuals who need access services.
    This year, the Department held the first ever federal LEP 
Conference, and unveiled three major resources in conjunction with that 
conference. Individuals from all over the country discussed the 
importance of, and innovative strategies to ensure, language access. 
Almost 200 representatives from recipient organizations, federal 
government agencies, various community groups, and the fields of 
interpretation and translation attended. Panelists throughout the day 
made presentations about their innovative programs and practices, many 
of which were featured in the resource document issued that day. A 
videotape of the event is being edited so that the information can be 
distributed beyond the participants.
    During the conference, we released an important LEP resource 
document entitled ``Executive Order 13166 Limited English Proficiency 
Resource Document: Tips and Tools from the Field.'' This document 
provides lessons from the experiences of law enforcement, 911 centers, 
domestic violence providers, courts, and DOJ components on meaningful 
access. Although geared to these entities, the general section of the 
document contains useful tips and tools for any entity trying to 
provide language access. We developed the document over many months of 
research to gather useful practices from throughout the country. It is 
now available on the LEP website, www.lep.gov.
     special litigation: civil rights of institutionalized persons
    Many of the Division's statutes focus on protecting the most 
vulnerable in society. This is certainly the case with the Division's 
enforcement responsibilities under the Civil Rights of 
Institutionalized Persons Act (``CRIPA''). CRIPA authorizes the 
Attorney General to investigate patterns or practices of violations of 
the federally protected rights of individuals in state-owned or -
operated institutions. These include nursing homes, mental health 
facilities, and juvenile correctional facilities. The Division's 
investigations and prosecutions continue to uncover manifest abuse and 
appalling conditions, and to successfully arrive at solutions.
    FY2004 saw substantial successes protecting the rights of 
institutional residents. We authorized 14 new CRIPA investigations, and 
entered into 15 CRIPA agreements, the most agreements ever in a single 
year. We released 11 findings letters, and, we remained active in 
ongoing CRIPA matters and cases involving over 164 facilities in 34 
States, as well as the Commonwealths of Puerto Rico and the Northern 
Mariana Islands, and the Territories of Guam and the Virgin Islands. We 
are continuing investigations of 56 facilities, and are monitoring the 
implementation of consent decrees, settlement agreements, memoranda of 
understanding, and court orders involving 105 facilities. Last year, 
these investigations included 121 tours of facilities to evaluate 
conditions and monitor compliance.
    I want to highlight three cases for the Committee. We filed and 
resolved a complaint in United States v. Louisiana regarding the 
Hammond and Pinecrest Developmental Centers. The consent order entered 
in that case resolved an investigation into the conditions of 
confinement at the two facilities. That investigation revealed that 
staff members at one of the facilities had been arrested for abuse, 
including kicking a resident, dragging him to his room, placing a 
blanket over his head, and hitting him. At the other facility, staff 
members had left residents alone for sufficiently long periods of time 
that when the residents were eventually found they were soiled with 
drool, vomit, or urine. This matter has also been referred to our 
Criminal Section for review.
    The Division also filed a complaint and a consent decree in United 
States v. Breathitt County, Kentucky (E.D. Ky.), resolving an 
investigation of the Nim Henson Geriatric Center. The Division's 
investigation suggested unconstitutional conditions including the use 
of inappropriate medications for an elderly population, unnecessary 
medical interventions such as feeding tubes, and residents with 
untreated bedsores. The consent decree contains remedial measures 
addressing these and all of the Division's other findings of 
unconstitutional conditions at Nim Henson.
    Third, on September 15, 2004, the Division filed in federal court a 
comprehensive agreement with the State of Arizona to remedy egregious 
conditions at three Arizona juvenile justice facilities. As identified 
in the Division's findings letter, these conditions included three 
juvenile suicides by hanging at one of the schools in a single year. In 
one suicide, staff lacked the appropriate tool to cut the noose from a 
victim's neck and also did not have oxygen in the tank they brought to 
help resuscitate him. The Division also found that staff sexually and 
physically abused youth.
    Additionally, last year I reported that the Division had just filed 
a contested lawsuit against the State of Mississippi over the 
conditions of confinement at several of the state's juvenile 
confinement facilities. Our findings letters details acts, which should 
not take place in juvenile facilities. We found that staff engaging in 
hogtying of juveniles, binding their hands together and their feet 
together and then binding all four extremities together. We found that 
staff at the facilities placed suicidal girls naked into a ``dark 
room'' with only a hole in the floor for a toilet for extended periods 
of time. We found that children who became ill during physical exercise 
were made to eat their vomit. And, we found deficiencies in mental 
health and medical care, juvenile justice management, and regular and 
special education services. This litigation, referred to us by 
Congressman Benny Thompson, marked the first time in many years that 
the Division filed a contested lawsuit seeking to remedy such 
unconstitutional conditions. Our suit is active, and we are working to 
resolve the matter.
    We have now filed a second contested lawsuit in this context. In 
June of 2004, we filed suit against Terrell County, Georgia over 
conditions of confinement at its jail, after we found that the jail 
routinely and systemically deprived inmates of constitutional rights. 
We identified considerable evidence in support of these allegations, 
including a lack of mental health care for inmates with clear symptoms 
of mental illness, such as a detainee who was left unsupervised despite 
being on ``suicide watch'' and who hanged himself with his jail-issued 
sheet in August 2003.
    As you can see, this work is among the Division's most important, 
and truly changes the lives of those it affects. We will continue these 
efforts during 2005.
      special litigation: promoting constitutional law enforcement
    In addition to CRIPA, our Special Litigation Section is charged 
with implementing Section 14141 of the 1994 Violent Crime and Law 
Enforcement Act. Section 14141 authorizes the Division to investigate 
patterns or practices of violations of federally protected rights by 
law enforcement officers. Since 2001, the Division has successfully 
resolved 14 such matters, as compared with only 4 resolved over the 
prior 4 years. Our efforts continue, as the Division presently has 12 
ongoing investigations, 4 of which were newly opened during 2004.
    When I appeared before the Committee last year I explained the new 
approach we have crafted to such cases. Rather than adopting a purely 
litigation-driven enforcement model, our experience demonstrates that a 
cooperative model produces much better and faster results. Accordingly, 
rather than husband findings of potential violations for use in court, 
we work hard to keep target agencies informed of our findings and 
progress, so that they can begin to develop and implement effective 
solutions. Local police agencies are fully the Division's partner in 
developing constitutional norms for policing. By including them in the 
process, local agencies are more likely to ``buy in'' to the solution, 
making lasting change more likely.
    An example of our success last year in our police misconduct civil 
investigation program is the execution of a settlement agreement and a 
consent decree with Prince George's County, Maryland and the Prince 
George's County Police Department requiring major reforms regarding the 
use of force and use of canines. These agreements resolved an 
investigation that had been ongoing for 5 years. While these 
investigations were ongoing, the Police Department paid nearly ten 
million dollars in police misconduct settlements, court judgments, and 
jury verdicts from fiscal year 2001 through 2003. I am also pleased to 
report that both the Fraternal Order of Police and involved community 
groups welcomed this amicable resolution.
    We also continued to enforce existing agreements. In an effort to 
jump-start the Detroit Police Department's compliance efforts, we 
provided the city last summer detailed on-site technical assistance 
from our police practices experts at no cost. Subsequently, in the face 
of non-compliance with two consent decrees by the Detroit Police 
Department, we filed a pleading with the Court.
    During 2004 we also continued our commitment to provide technical 
assistance to law enforcement agencies under investigation. We provided 
the Bakersfield, California Police Department with a detailed 20-page 
technical assistance letter providing recommendations regarding, inter 
alia, the use of force and investigation of allegations of misconduct. 
We also agreed to provide ongoing technical assistance regarding uses 
of force and use of force investigations to the police department in 
Portland, Maine as part of the resolution of the investigation of that 
department and made our police practices expert available to the 
department for that purpose.
    The Division is carefully monitoring the Cincinnati Police 
Department's compliance with the Memorandum of Understanding we 
negotiated with the City in April 2002. This Agreement has at times 
followed an occasionally bumpy road. Nevertheless, we are hopeful and 
confident that the Cincinnati Police Department will continue to 
correct its prior deficiencies, and that the community will continue to 
develop a greater appreciation for the overwhelmingly fine men and 
women serving in that Department.
    We are also actively engaged with other federal offices and the 
police communities in identifying and understanding emerging issues in 
policing. One such issue is the use of so-called ``less-than-lethal'' 
force, such as the taser device. It is important that such equipment be 
understood and used properly. It is equally important that police 
officers have access to a range of force options, rather than face the 
binary choice of fists or firearms. Accordingly, this spring we will be 
assisting the Office of Justice Programs in hosting a conference on 
less-than-lethal uses of force.
    As I noted earlier, I have particular respect for the difficult 
task performed by Police Departments around the country each and every 
day. To the extent that the Division can both assist further their 
mission and promote Constitutional policing, we are performing a 
valuable task.
                               conclusion
    In closing, I hope my statement today makes clear the scope and 
breadth of what falls within the jurisdiction of civil rights 
protection. I hope too that my statement reflects the outstanding work 
of the men and women of the Division. These accomplishments should 
also, however, remind us of a larger truth.
    I recently attended a special preview of a History Channel 
documentary entitled ``Voices of Civil Rights,'' hosted by the 
Smithsonian Museum of American History. This program recorded the oral 
histories of those who experienced first hand the Civil Rights 
struggles of the 1950s and 1960s. Many of these stories were 
challenging. They recorded from all perspectives the anger of those 
days.
    One story, however, particularly struck me. It was the story of an 
African American woman who had been a nurse in a segregated hospital--
separate floors, two races, no mixing. On the day the hospital 
desegregated, she was sent to the formerly white floor to treat, for 
the first time, a white woman, who had undergone surgery that very 
morning.
    As she approached, the patient's husband stepped forward. ``Don't 
you lay a finger on my wife,'' he said. Loyal to her profession, the 
nurse began to tend the patient. At this, the husband reacted 
violently. ``Get your n----r fingers off my wife,'' he yelled. He 
picked up the nurse, carried her from the room, and hurled her down the 
hallway. Then, he unplugged his wife from the medical equipment, placed 
her in a wheelchair, and took her home.
    A week later, the nurse was on duty when the man returned to the 
hospital. She feared a continued confrontation. Rather, in a defeated 
voice, he said simply: ``I had no right to lay my hands on you. If I 
had not done what I did, I would still have a wife to care for my 
children.''
    It is difficult to imagine such blindly self-destructive behavior 
today. It would also, however, be naive to believe that in a mere 40 
years--a single generation--the impulses that drove it have disappeared 
entirely from our society. While racism may not take all of the same 
stark forms as it once did, and while the tools to fight it must adapt, 
it nevertheless persists.
    Our efforts this past year stand testament to that fact, and to the 
efforts of those committed to improving America for all Americans.
    Thank you, and I look forward to answering any questions that 
members of the Committee may have.

    Mr. Chabot. The members of the panel now will have five 
minutes to ask questions. I recognize myself for 5 minutes for 
that purpose.
    The Civil Rights Division is involved in efforts to address 
allegations of misconduct against police departments. In some 
cases, it's done with consent decree. In other cases, it's a 
memorandum of understanding. In the case of the city that I 
represent, Cincinnati, there is a memorandum of understanding, 
as you well now.
    Now, how does the Division determine whether the parties 
are in compliance? For example, the City of Cincinnati has been 
determined by the monitor to be in compliance in several areas, 
such as implementation of the mental health response team, foot 
pursuits and use of force policies, which include tazer and 
chemical spray, canine and beanbag shotgun, and pepper ball. 
Are there concrete measures from which the police department 
can determine whether they're still making progress, and what 
comments would you have in that area?
    Mr. Acosta. Certainly, Mr. Chairman. Let me say that our 
approach to police cases has been very successful because we 
focus on fixing the problems, not fixing the blame. The 
hallmark of our approach is communication and cooperation where 
possible where cities, as is the case in Cincinnati, are 
looking to make progress to address issues. And in fact, I 
think it should be acknowledged that Cincinnati has made 
considerable progress in implementing the MOU's substantive 
changes.
    The memorandum of understanding, or MOU itself, sets forth 
a lot of the requirements that the city has to achieve in order 
to be in compliance, and so the way we determine these is very 
much on a case-by-case basis based on the city, on the city's 
particular needs, on the situations of the city, on the degree 
to which the city is getting ahead of the curve and coming into 
compliance on its own.
    One very important issue with respect to compliance are the 
provisions that we have in all our agreements and in all our 
consent orders requiring cities and police departments to 
provide us with documents, because certainly we are hopeful 
that jurisdictions come into compliance. We know that 
jurisdictions do make progress. But we have a duty and 
obligation to substantiate that by reviewing documents 
ourselves.
    So I guess I would summarize by saying Cincinnati has made 
considerable progress and we hope that that is documented so 
that we can look at those documents and, in fact, judge for 
ourselves that we have compliance in each of the areas.
    Mr. Chabot. Thank you very much. Let me shift gears, same 
State, but just the overall area. A great deal of press has 
been generated about the alleged flaws about the voting process 
in my State, in Ohio, and in other areas, as well, but the 
principal focus really has been on Ohio. Your testimony doesn't 
reference Ohio or identify Ohio as a problem jurisdiction prior 
to or subsequent to the election. Would you explain why that 
is?
    Mr. Acosta. Certainly, Mr. Chairman. I think it's important 
to recognize that this election, while we're certainly looking 
into some matters, in this election, we had a record turnout. 
Turnout increased by 17 million voters nationally. The turnout 
rate was almost 61 percent, the highest since 1968. In Ohio, 
for example, the turnout was the largest in the State's 
history. The turnout rate was 71, almost 72 percent of 
registered voters.
    If you look at changes that have been implemented since 
2000, for example, under HAVA, the EAC distributed $2.2 billion 
to improve the voting process. As a result, about 25 percent of 
voters nationally voted on new machines. According to one 
study, that has resulted in a million additional votes that can 
be attributed to those new machines. The residual vote rate, in 
other words, the number of uncounted votes, has fallen 
dramatically, from 1.9 percent in 2000 to 1.1 percent in 2004.
    With respect to provisional ballots this year, one million 
new provision ballots were cast and counted. Seventeen States 
used provisional ballots for the first time.
    So in sum, I would say that across the nation and in Ohio, 
more people voted using better voting machines and having their 
votes count. The point, and a point that I think should not go 
unnoticed, is while we're certainly looking at certain matters, 
we saw improvements across the board in the administration of 
the election throughout the nation as well as in Ohio.
    Mr. Chabot. Thank you. My time is about ready to expire. 
Let me just ask one final question. Do you expect that the 
priorities of the Civil Rights Division would change under the 
watch of Attorney General Gonzales from those of Attorney 
General Ashcroft, and if so, in what ways?
    Mr. Acosta. Mr. Chairman, our job is to enforce the law. 
Attorney General Ashcroft took civil rights very seriously and 
I know Attorney General Gonzales does, as well.
    Mr. Chabot. Thank you. I thought you might answer in that 
way, but I wasn't sure, so thank you very much.
    Mr. Scott, you are recognized for 5 minutes.
    Mr. Scott. Thank you. Mr. Acosta, I was a cosponsor of the 
bipartisan Prison Rape Elimination Act. Do you intend to fully 
operate with the Prison Rape Commission in the conduct of its 
work?
    Mr. Acosta. Absolutely, Mr. Scott. As a matter of fact, I 
have already spoken with the Executive Director of the 
Commission and we've already talked about establishing a 
cooperative relationship.
    Mr. Scott. Thank you. I'm also a cosponsor of a bipartisan 
draft bill to address domestic sex trafficking through a focus 
on demand reduction, that is, a focus on enforcement against 
Johns and have more treatment for prostitutes as victims, 
providing services and assistance. Are you familiar with that 
draft bill being circulated?
    Mr. Acosta. I am not familiar with the draft bill, Mr. 
Scott.
    Mr. Scott. Do you believe that some engaged in prostitution 
should be treated as victims eligible for services and 
assistance?
    Mr. Acosta. Mr. Scott, this is a very important issue. The 
Civil Rights Division has prosecuted a record number of 
trafficking cases and the prosecution is not the only thing 
that is important. A victim-centered approach that we apply is 
critical. We have rescued, I believe as of last I checked, 683 
victims from human trafficking, and they are victims and they 
should be treated as victims.
    Some have said that if you treat victims of trafficking as 
victims, that you encourage additional trafficking because it 
is possible that some individuals may want to get the benefits, 
the immigration benefits or the other benefits that come from 
that. We feel very strongly that victims are victims. They need 
to be treated as victims and they have, whether it is health 
care or immigration concerns, we need to rescue them and to 
help them rebuild their lives.
    Mr. Scott. Thank you. The Help America Vote Act provides 
for disabled voters one accessible voting booth per precinct 
where disabled voters can vote with a secret ballot. The 
deadline for that is about 9 months from now. What are you 
doing, what is your Department doing to make sure that we meet 
that deadline?
    Mr. Acosta. Congressman, this is a very important issue. 
I'll tell you what we have already done. For the first time 
ever in this election, we trained our monitors in accessibility 
issues for voting pursuant to the ADA. We issued a document to 
local officials detailing accessibility requirements, which 
also has a helpful sort of last minute fix-it sheet of actions 
that they can take to ensure accessibility in polling places.
    With respect to the 2006 HAVA deadlines, we are in the 
process of surveying the States as we did going up to 2004 to 
ensure that all the States comply fully with the accessibility 
requirements of HAVA in 2006.
    Mr. Scott. And that is not just getting to the polling 
place, into the polling place, it is also being able to cast a 
ballot in secret.
    Mr. Acosta. That is getting to the polling place and it is 
being able to cast a ballot in machines that are consistent 
with the requirements of the Help America Vote Act's 
accessibility requirements.
    Mr. Scott. There were complaints in some States, 
particularly Ohio, that some people had to wait up to 10 hours 
in order to vote. If it were to be determined that an 
insufficient number of voting machines were put in precincts 
that created this backlog, would that be something that your 
Division would be interested in?
    Mr. Acosta. Congressman, we would certainly enforce the 
Federal election laws that would--if it were determined that 
the number of election machines or the distribution was placed 
in a racially discriminatory manner.
    Mr. Scott. Have you looked into that in Ohio?
    Mr. Acosta. We are looking into several matters in Ohio, 
including that matter, as well as throughout the nation more 
generally.
    Mr. Scott. We mentioned the new Attorney General. One of 
the issues that came up in his hearing was torture. What is the 
Civil Rights position on people being tortured or people being 
transferred to another country that will do the torture on our 
behalf?
    Mr. Acosta. Congressman Scott, the President and the 
Attorney General have made clear and I will make clear that the 
Department of Justice does not tolerate torture. We do not 
tolerate abuse. That has been enunciated many times, and I will 
say that once again. We do not tolerate torture.
    Mr. Scott. This Subcommittee had a hearing in Cincinnati 
recently involving black farmers. They're in litigation and 
there is a suggestion that since most of the people that filed 
for relief under the Pickford case were not able to get their 
cases heard on the merits because of a deadline that was 
missed, the suggestion is that that deadline should be waived. 
The Civil Rights Division of the Agriculture Department said 
they couldn't take a position on that waiver to allow people to 
have their cases heard on the merits because some other agency 
in Government was going to make that decision. Has the Civil 
Rights Division of the Justice Department been involved in that 
discussion?
    Mr. Chabot. The gentleman's time has expired, but you can 
answer the question.
    Mr. Acosta. Congressman, I have not discussed this matter 
with the Department of Agriculture.
    Mr. Chabot. Thank you. The gentleman's time has expired.
    The gentleman from Iowa, Mr. King, is recognized for 5 
minutes.
    Mr. King. I thank the Chairman and appreciate the hearing 
and appreciate your testimony, Mr. Acosta. As I listen to some 
of the responses with regard to the HAVA Act, I would direct a 
question to that and discussion about handicap accessible 
voting.
    We will be seeking to meet that 2006 deadline, and as I 
understand it, it's likely to result in electronic voting 
machines in every precinct that are compatible with earphones 
and those type of add-ons that make it so that everyone can 
have a secure vote. I want to make it clear that I support that 
concept, but I would ask you if we could take--multiply this 
out, now, with an electronic voting machine in every precinct 
in America. I don't know how many precincts we have, but I know 
it's a lot. These voting machines are voting machines that are 
either wired in or just simply transferring the memory card to 
the county voting process.
    How would we, not having anything but an electronic record, 
how would we conduct a recount in 2006 under these 
circumstances, especially keeping in the consideration that 
many of these precincts in America in the red zones in America 
are low population, not very many voters in each one, expensive 
for each precinct to provide that voting machine, and then 
they're out in remote locations where that might be the only 
voting machine in many of these precincts.
    Mr. Acosta. Congressman, Congress in HAVA in the provisions 
that go into effect in 2006, in addition to requiring 
accessibility standards for voting machines, also provides for 
a permanent record manual audit trail capacity.
    Mr. King. And could you describe what that might be?
    Mr. Acosta. The HAVA empowers the Election Assistance 
Commission to determine precisely what that is, so this is the 
EAC's decision. To my knowledge, they have not yet set 
standards on that.
    Mr. King. In fact, we may not at this point have the 
vaguest idea what that might entail should we have compliance 
by 2006 with electronic voting machines and no paper trail.
    Mr. Acosta. Congressman, once again, the Election 
Assistance Commission is empowered to set those standards. The 
Department of Justice does not have authority to set those 
standards.
    Mr. King. And if those electronic voting machines were 
placed in a racially discriminatory fashion, though, you would 
have jurisdiction over that?
    Mr. Acosta. That is correct, Congressman.
    Mr. King. Let me move to another subject matter and that 
would be Clinton's Executive Order 13166. I see by the nod of 
your head you're familiar with that. I wonder if you could 
inform the Committee today as to what kind of cost that might 
have entailed at this point and how we could anticipate which 
direction those costs might go in the future under that 
Executive Order.
    Mr. Acosta. Congressman, I do not know the cost assessment 
for the Executive Order. I think it is important to acknowledge 
up front that the Executive Order is an important order that 
does provide for access to important Government services by 
individuals who do not speak English, but that it also 
acknowledges up front the importance of English language 
acquisition, which is something that the Department of 
Education works very closely and very hard on.
    Mr. King. So would you have a sense as to whether those 
costs are increasing or decreasing with regard to the 
obligations imposed by Executive Order 13166?
    Mr. Acosta. Congressman, it's difficult to say. One of the 
economic realities is as something is used more, often, the 
costs go down. So, for example, one of the large costs in this 
Executive Order, obviously, this provides for translation 
services so that if individuals, for example, go to an 
emergency room, there is someone that can speak their language 
in providing medical services.
    Obviously, as more translation services are called for, 
efficiencies can be created, efficiencies of scale, 
efficiencies through language lines via telephone and others 
that may decrease the cost of the service. And so it's 
difficult to say with a moving target whether costs are 
increasing or decreasing.
    Mr. King. I thank the gentleman for his testimony and his 
responses and I'd have no further questions. Thank you, Mr. 
Chairman.
    Mr. Chabot. Okay. Thank you very much.
    The gentleman from Michigan, Mr. Conyers, the distinguished 
Ranking Member of the overall Judiciary Committee, is 
recognized for 5 minutes.
    Mr. Conyers. Thank you, Mr. Chairman.
    I want to begin by acknowledging that we have a number of 
members of the FBI here for this hearing, some of them formerly 
assigned to Detroit and some on the Committee, even, and we 
welcome them to this hearing.
    Now, as Assistant Attorney General, you have, to me, one of 
the most important tasks of helping civil rights become the 
finished business of America, because it's still the unfinished 
business of America. You have a huge burden. I think most of us 
on this Committee are here to help you. I've been with this 
since the Voting Rights act of 1965 under--when Manny Seller 
was the Chairman a number of years back.
    Now, your presentation here is seriously different from the 
warnings that I have been presented by my staff about problems 
that we're having, and this is understandable. You didn't come 
here to confess. This isn't a confessional. I mean, you've got 
to put on the best presentation for your Division that you can, 
and I don't blame you for that. But there are lots of problems, 
because you were telling me the most this and the more cases 
and more of everything. It would lead a lot of people to say, 
well, we're in pretty good shape.
    So I see a couple of challenges here. One, that we have an 
Assistant Attorney General that is willing to confront the 
issues, and I commend you for that, but there are a lot of 
things that 5 minutes won't even begin to clear up. So I wanted 
to, as I mentioned to you before we started, we've got to set 
up some kind of channel of meeting, Mr. Chairman, because these 
issues are way too complex to take in 5-minute bites during 
this hearing.
    But I also would like to ask if you would be willing to 
meet with the leaders of the major civil rights organizations 
in America who, in one sense, have the same responsibility that 
you do, and I don't know--and I'm not presuming that you have 
met or not met before, but it seems to me that that would be a 
hugely important signal and an opportunity for us to vet 
through some of these problems and I'd like to throw that out 
for your reaction.
    Mr. Acosta. Thank you, Congressman. You raised several 
issues that I would like to take one at a time.
    First, I am by no means here to confess. I'm very proud of 
the work we have done. At times, I get a bit frustrated over 
the fact that the work is not recognized, and I'll give you an 
example. Over a year ago when I had a hearing in the sister 
chamber across the way, a Member brought up the issue of 
employment discrimination and I took that very seriously. I sat 
down with my staff and I said, I want to see this move. I want 
to make sure we are making every effort we can make. And, in 
fact, last year, we brought more cases than we have brought 
since the mid-1990's. We brought disparate impact cases. And 
yet, much of that goes unrecognized. I attribute that to 
perhaps a communications issue.
    Last year, Mr. Scott raised the issue of arsons in houses 
of worship. Following Mr. Scott's questions on that, I sat down 
with the Bureau of Alcohol, Tobacco, and Firearms because I 
wanted a briefing to know what was happening in his district 
and in his State and nationally on that issue, and I have 
continued sitting down with them as a result of Mr. Scott's 
questions.
    So I want to first acknowledge that we do take your 
concerns very seriously and it is far from a finished work, as 
I think my allusion to the ``Voices of Civil Rights'' story 
made clear.
    Let me say that I'm very willing to work with yourself or 
with other Members. I sit down on a regular basis with leaders 
of civil rights groups. Last year, for the first time that I'm 
aware of, we invited leaders of civil rights groups to address 
our attorneys during a training on election matters where we 
invited Wade and Hillary and Karen Narasaki and others to come 
in, Barbara, to come in and to address, to talk about their 
concerns. I sit down with them regularly. I was in Selma just 
this past week. I'm going to be at the National Asian Pacific 
Bar Association dinner. I was the keynote speaker at their 
dinner in Texas this past year.
    And so I'm a big believer in communications. I think it's 
important to have open channels, and I think that the leaders 
of civil rights organizations across the country would confirm 
that.
    Mr. Chabot. The gentleman's time has expired.
    Mr. Conyers. I want to thank you for that reaction. We want 
to expand these communications even further to this Committee, 
and I presume that the civil rights community is satisfied with 
their chain of communication with you and your Civil Rights 
Division.
    Mr. Chabot. Thank you very much, Mr. Conyers.
    The gentleman from Florida, Mr. Feeney, is recognized for 5 
minutes.
    Mr. Feeney. Thank you, Mr. Chairman, and thank you, Mr. 
Acosta. In the materials that you submitted along with your 
statement, you referred to the enforcement of certain voting 
rights, and obviously you've got responsibilities in what I 
refer to as the pre-clearance counties. Is that both section 3 
and section 6 identified counties?
    Mr. Acosta. All counties identified by the Voting Rights 
Act for pre-clearance.
    Mr. Feeney. Could be generally referred to as pre-clearance 
counties?
    Mr. Acosta. Correct.
    Mr. Feeney. But you have said that, not because of 
statutory basis, but because of common practice, the Justice 
Department increasingly is paying attention to illegal voting 
activities occurring outside what I refer to as pre-clearance 
counties. Is that right? And by what authority do you do that, 
just out of interest?
    Mr. Acosta. Certainly, Congressman. The President, the 
Attorney General, the Department, and myself take voting rights 
very seriously. They are the bedrock of our democracy. The 
Voting Rights Act does give us specific jurisdiction and 
authorization to send election observers to certain polling 
places.
    What we did this year, what we have done previously, but 
what we did in record numbers this year is we certainly sent 
election observers pursuant to the Voting Rights Act, but I 
asked my own staff, in the number of hundreds, to go out as 
election monitors. And what we do is we go into a jurisdiction 
and we say, ``Would you mind if we watch?'' And the Voting 
Rights Act does not tell us we can do that, but my staff can 
certainly fly somewhere and say, ``Would you mind if we 
watch?'' In several States, we had a presence this year where 
we have not had, and that has several salutary effects.
    First, having the Justice Department Civil Rights Division 
present, I think helps deter election problems. And secondly, 
to the extent that problems may arise, we have individuals 
present who can report back----
    Mr. Feeney. Well, if I can, because I've got a limited 
amount of time, I appreciate the advantages, but it seems to me 
that you don't have any specific statutory authority there if 
you're asking for permission, and I guess I would ask you these 
questions, because I think a lot of us would be interested in 
beefing up enforcement activities.
    Number one, is there anybody that has any authority outside 
pre-clearance counties in voting other than your Department and 
have they exercised that authority, to your knowledge?
    Mr. Acosta. Congressman, not to my knowledge at the Federal 
level, and therefore, they have not exercised it.
    Mr. Feeney. Is it your opinion that somebody that 
intentionally votes multiple times illegally is in violation of 
Federal law, and have you prosecuted anybody for such activity?
    Mr. Acosta. Congressman, certainly, they would be in 
violation. With respect to prosecutions----
    Mr. Feeney. Of Federal law or State law?
    Mr. Acosta. They would be in violation of the law, if I 
could. With respect to prosecutions of Federal law, there is a 
bifurcation of responsibilities. The Civil Rights Division 
enforces the Voting Rights Act and other acts regarding ballot 
access. The Criminal Division, Public Integrity Section, 
enforces violations of Federal criminal laws, violations of 
voting fraud laws, and violations of other Federal election 
laws.
    Mr. Feeney. Is it a Federal crime to vote twice 
intentionally, in two different places, for example?
    Mr. Acosta. It is certainly a crime----
    Mr. Feeney. Is it a Federal crime?
    Mr. Acosta. I do not enforce the public integrity laws and 
so I would defer to the Criminal Division.
    Mr. Feeney. The Criminal Division. How about voting 
illegally, somebody that is not a legal voter but intentionally 
votes knowing full well that they are voting illegally?
    Mr. Acosta. Congressman, again, if I could, my 
jurisdiction----
    Mr. Feeney. That would be the Criminal Division?
    Mr. Acosta. That would be the Criminal Division.
    Mr. Feeney. Do you know anything about whether they have 
prosecuted either multiple voting or deliberate illegal voting?
    Mr. Acosta. We have referred to them several matters of 
which we became aware that involved vote tampering, for 
example, and I would ask that--and I'm happy to take the 
questions back to them----
    Mr. Feeney. One more, because my time is running out. How 
about organized mass protests in multiple areas, that in some 
areas result in trespass, assault, and battery? Would that be a 
violation of Federal law and would that be the Criminal 
Department, as well?
    Mr. Acosta. Again, that would be the Criminal Division and 
I would defer to them on an answer.
    Mr. Feeney. Thank you. I yield back, Mr. Chairman.
    Mr. Chabot. The gentleman yields back. The gentleman's time 
has expired.
    The gentleman from North Carolina, Mr. Watt, is recognized 
for 5 minutes.
    Mr. Watt. Thank you, Mr. Chairman.
    Mr. Acosta, you may be aware that in addition to being a 
Member of this Subcommittee and the Judiciary Committee, I am 
currently the chair of the Congressional Black Caucus. I assume 
you read in the paper that I, along with 40 other members of 
the Caucus, met with the President and delivered to him an 
agenda on January 26. In fact, we delivered seven copies of it 
to him so it would expedite his delivery of it to Department 
heads.
    One of the areas addressed in that agenda is disparities 
that exist in the Justice area. I would simply ask whether you 
are aware of whether the President has delivered that agenda to 
either the Attorney General or to the Civil Rights Division in 
follow-up to our meeting with him.
    Mr. Acosta. Congressman, I am certainly aware of the 
agenda. I am aware that the meeting took place and of the 
concerns, and it would be inappropriate for me to speak for the 
Attorney General, but I would assume that he is sensitive to 
these concerns, as well.
    Mr. Watt. Okay. Well, in the event he has not, I'm going to 
ask unanimous consent to submit for the record a copy of the 
Congressional Black Caucus agenda, which I will also deliver 
personally to you at the end of the hearing.
    Mr. Chabot. Without objection, so ordered.
    [The information referred to is available in the Appendix.]
    Mr. Watt. On June 23, 2004, Mr. Conyers, along with other 
Members of this Judiciary Committee, sent to you, or sent to 
Attorney General Ashcroft a letter regarding the Waffle House 
alleged pattern and practice of discrimination in public 
accommodations and we received a response from William E. 
Moschella dated August 13, 2004, in which he made this 
representation, that the Division is currently evaluating what, 
if any, action may be appropriate pursuant to the Attorney 
General's authority under title 2. Can you tell me what the 
status of that is?
    Mr. Acosta. Certainly, Congressman. The issue that is 
raised--and I need to be a little careful in wording this--the 
issue that is raised is whether----
    Mr. Watt. I know what the issue is. I'm just trying to find 
out what the status of the Department's investigation is.
    Mr. Acosta. Congressman, the status is that I met recently 
with several representatives of plaintiffs, who provided 
information to us, I believe 2 weeks ago, perhaps 3 weeks ago--
no, 2 weeks ago, who provided information to us. We are 
currently evaluating it and we will be making a determination 
once we have completely reviewed that information.
    Mr. Watt. Okay. Would you follow up with us when you move 
along in that so we can monitor the status of it, please?
    Mr. Acosta. I will certainly follow up when we take public 
action.
    Mr. Watt. All right. In follow-up to Mr. Conyers' 
questions, there seems to be a substantial disparity not only 
between what you have reported to this Subcommittee today and 
Mr. Conyers' staff, what they have reported to him, but there 
seems to be a substantial disparity between what you have 
reported today and a non-partisan research center study done by 
Syracuse University in 2003--actually, 2004. I am just going to 
zip through some of those disparities and ask you in follow-up 
to this hearing to respond to why there is such a dramatic 
difference between what you have reported here in your 
testimony and what this study suggests.
    According to this, Federal prosecutors filed criminal 
charges against 159 defendants for violations of civil rights 
laws in 1999, and in 2003, only 84. During the same time 
period, charges against terrorism suspects increased 
dramatically and charges on weapons violations doubled. In 
addition, Federal charges on immigration violations increased 
more than 28 percent, according to this study. So maybe there 
is some double-counting in that area.
    In 2003, prosecutors filed formal charges in only 5 percent 
of civil rights cases referred to them. By contrast, they chose 
to pursue formal charges in 90 percent of referred immigration 
cases. Civil rights complaints to the Government stayed steady, 
but civil rights sanctions against civil rights violators 
declined from 740 in 2001 to 576 in 2003. Civil rights cases 
also dropped--prosecutions in civil rights cases dropped from 
3,053 in 1999 to 1,903 in 2003. During that same period, of 
course, terrorism prosecutions were up, but it seems, according 
to this study, that the Department is devoting substantially 
greater and greater resources to terrorism at the expense of 
civil rights.
    So since our time is up, I would just give you a copy of 
this report and perhaps ask you to follow up in writing, and 
maybe there is some logical explanation for the disparities 
between the figures that you've given us and the figures that 
Syracuse University--this is not our staff, this is an 
independent body that says this.
    Mr. Chabot. The gentleman's time has expired, but Mr. 
Acosta, if you would like to address the question----
    Mr. Acosta. Thank you, Mr. Chairman. I saw that report and 
I was very upset when I saw it. I asked my staff to contact 
Syracuse University to determine their methodology. I also 
asked my staff to get me a list of all our cases going back. I 
wanted the actual case names listed so I could count them.
    Mr. Watt. You can provide that to us.
    Mr. Acosta. Let me say, I'd be happy to provide that.
    Mr. Watt. Okay.
    Mr. Acosta. We have not heard back regarding their 
methodology. They, as far as I understand, had taken 
information from multiple sources, put it in an algorithm, and 
determined a final number. We went through, and I will happily 
provide the case names because last year was a record year.
    With respect to the percentage of charges, let me respond. 
The number of investigations in the civil rights area that 
result in prosecutions is a smaller percentage than other 
areas, but that is a reflection of the fact that the Civil 
Rights Division believes it is better to open an investigation 
and even if there is not a lot there, then subsequently 
determine not to charge. In other words, our erring on the side 
of checking something out is responsible for the fact that the 
percentage of investigations actually charged is lower in that 
area, and I think that's a good thing.
    Mr. Chabot. Thank you. The gentleman's time has expired.
    The gentleman from Maryland, Mr. Van Hollen, is recognized, 
and we also want to welcome you to the Committee. We are very 
pleased to have you as a new Member.
    Mr. Van Hollen. Thank you, Mr. Chairman. It's a privilege 
to join you.
    Mr. Acosta, thank you for your testimony. I had a few 
questions related to the Justice Department's role in the 
faith-based initiative in the White House, and let me just say 
that I think all Americans agree that one of the founding 
principles of this country was to make sure that individuals 
had the right to religious liberty and to make their own 
decisions regarding their faith without interference from the 
Federal Government. And there's no argument about the very 
important role faith-based organizations play probably in each 
of the Congressional districts we live in around the country.
    And there's no dispute, either, as to the fact that faith-
based organizations have received public funds and have done 
great work with public funds in the area of job training, in 
the area of Head Start, tsunami relief internationally, 
Catholic Charities, Jewish Federation, a whole range of 
Protestant groups, other groups around the country. So that's 
not the issue.
    The issue is when these organizations receive Federal 
funds, taxpayer dollars paid by people of all different faiths 
in this country, and they're using those funds for secular 
purposes, because I think we would all agree you can't take 
Federal dollars to promote a particular religion, so they're 
taking these funds for a secular purpose, like job training. 
Why you don't think that it is legally wrong or a violation of 
the Establishment Clause of the Constitution to be able to take 
those taxpayer dollars and then turn around and say it's a job 
training program that's being offered and someone who has long 
experience providing job training experience, has a great 
education applies for the job, secular purpose using Federal 
taxpayer dollars, why you think it's proper that that 
organization should be able to say to that person, we're not 
going to hire you, not because you're not qualified, not 
because we don't think you've got the top person for the job, 
but you just don't pass our private religious test. Could you 
answer that for me, because I know the Justice Department has 
taken a position in several cases.
    Mr. Acosta. Congressman, certainly. You are, in essence, 
alluding to much of what we do under faith-based programs, and 
I'd start off by saying with respect to the legal question, 
Congress itself in title 7 recognized that religious 
organizations should have autonomy and should have the ability 
to preserve their natural character. Congress, when it enacted 
title 7 of the Civil Rights Act, under section 702, exempted 
religious organizations, allowing them to use religion as a 
criteria in hiring. So as a legal matter, Congress itself has 
made the determination that----
    Mr. Van Hollen. I know my time is short. If I could just 
break in, you would agree, would you not, that that act, the 
1964 Civil Rights Act, did not answer the question with respect 
to the use of taxpayer dollars and how that affects whether or 
not a religious institution has the right to discriminate based 
on religion? You would agree with that, would you not, because 
I can tell you, I've got the transcripts from the hearings back 
then. Sam Irvin raised this point. It was very clear that what 
he was worried about at that time was making sure that we 
weren't saying as part of the 1964 act to the Catholic Church, 
for example, that you've got to hire a non-Catholic for a 
priest, or as a priest, I mean, or for those parts of your 
mission which are religiously oriented. It doesn't speak at 
all--in fact, it's very clear they weren't--he went out of his 
way to say he was talking about situations that did not involve 
taxpayer money.
    So this has been discussed. So I just want to make sure I 
understand from a legal point of view, is it your position that 
that act itself contains within it the authorization to say to 
a religious organization that receives public dollars that in 
the use of those public dollars, you can discriminate based on 
religion?
    Mr. Acosta. Congressman, the act in title 7 says that a 
religious organization can consider religion in hiring. That 
organization is then authorized by law to apply for grants, and 
so long as, for example, the Salvation Army is permitted to 
apply for grants and if it competes for a grant, for example, 
to run a soup kitchen or to provide housing or other social 
services, and it provides those services without any religious 
character, without any evangelizing, and it provides those 
services to all individuals without account, taking into 
account religion, there is no legal prohibition in the 
Salvation Army competing on an equal and non-discriminatory 
basis with every other organization to provide grants. And, in 
fact, it might be able to provide those grants more 
effectively.
    Mr. Chabot. The gentleman's time has expired, but if he 
would like to make a follow-up, a brief point here, he may.
    Mr. Van Hollen. I thank you, Mr. Chairman. I appreciate 
that. I don't think the question is whether they're allowed 
equal opportunity to apply for grants. Of course, they are. Any 
faith-based organization, whether it's a Catholic organization, 
Jewish, or whatever, obviously has an equal right to apply for 
Federal grants.
    The issue at stake here, and Mr. Chairman, thank you for 
the little additional time and I'll just end with this 
statement--this issue is not whether they have an equal right 
to apply for Federal funds. The question is whether it's right, 
both from a moral perspective, from a legal perspective, or 
just the right thing to do, to say to somebody who's been 
paying taxes and applies to that job, in the case of the 
Salvation Army, someone from the Jewish faith, to provide a job 
training service or provide help in the soup kitchen, whether 
the Salvation Army should be able to say to them, ``Sorry, 
you're the wrong faith.''
    Thank you, Mr. Chairman.
    Mr. Chabot. Mr. Acosta, did you want to respond to that or 
not?
    Mr. Acosta. We could go on and on. I'll leave it at that.
    Mr. Chabot. Very good. Thank you very much. Thank you.
    The gentleman from Arizona is recognized for 5 minutes, Mr. 
Franks.
    Mr. Franks. Thank you, Mr. Chairman, and thank you, Mr. 
Acosta. I appreciate your report here. There's a lot of very 
encouraging elements of it. I was particularly impressed by 
your efforts with regard to trafficking. It looks like you've 
started about 19 different trafficking task forces, and as it 
happens, one of them is in the Phoenix area, where I'm from. It 
just looks like you're making a lot of progress in that regard, 
especially the fact that it's become victim-focused and this 
new T-visa that you have is pretty exciting.
    Having said that, these trafficking people that are 
essentially modern-day slaveholders, what are we doing at this 
point to even further intensify our efforts in this regard and 
do you have any things that you see as a matrix that you think 
is really the heart of the problem and the way to address it?
    Mr. Acosta. Thank you for the question, Congressman. You 
raise a very important issue, an issue that I think is getting 
more national attention, and as a result, we are getting more 
cases.
    We currently have 208 open investigations. By way of 
comparison, in the year 2000, there were three cases brought 
and charging five defendants, to give you an example of the 
numbers. I'm very gratified by the progress we have seen, but I 
think we need to recognize that it is only a start, that the 
problem of trafficking is much larger.
    I think going forward into the future, it's important that 
we work with jurisdictions and we work with localities. That is 
why following the President's attendance at our national 
conference in Tampa, we started opening these task forces 
around the country, because local police are the boots on the 
ground that know where trafficking takes place. Local service 
providers and faith-based organizations are important parts of 
our effort in this because victims often don't speak the 
language. They are scared. They are not going to come to us. 
But they will go to a local faith-based organization. They will 
go to a local service provider. And so we make sure that those 
providers are always involved in the task forces.
    Lastly, as part of the effort to emphasize the importance 
of local enforcement, I think it's important to note that it's 
important for States to have strong anti-trafficking laws. 
Congress a few years ago took strong efforts to intensify our 
trafficking laws through the Trafficking Victims Protection 
Act. We have placed a model law in public circulation, a model 
State law. We're not encouraging or discouraging States in any 
appropriate way, but we just thought it would be useful to 
further discussion, because the majority of States have not 
updated their trafficking laws.
    It's important to recognize that traffickers don't use 
physical force often. They use fraud or psychological coercion 
or threats of violence or document abuse, and it's important 
for prosecutors to have those additional tools available when 
we go to prosecute.
    Mr. Franks. I think it's just an astonishing statistic to 
go from three cases that are being investigated to 208. Did I 
hear you correctly?
    Mr. Acosta. Correct.
    Mr. Franks. Do you attribute that to prevalence, to greater 
focus, to kind of getting dialed in on what these people are 
doing? What is--that's an amazing increase.
    Mr. Acosta. Congressman, several factors. First, the 
President has made this a top priority. He has spoken on the 
issue several times before the United Nations. He attended our 
national conference in Tampa. He has made this an issue for his 
Administration.
    Second, we are working much more closely with State and 
local jurisdictions. It's very difficult from Washington to 
find these cases. These task forces in cities like Phoenix and 
in other cities really are the way to find these cases and we 
need to decentralize the effort so that we can find these cases 
much more.
    Mr. Franks. I just appreciate your good efforts, sir, very 
much. Thank you. Thank you, Mr. Chairman.
    Mr. Chabot. Thank you. The gentleman yields back his time.
    The gentleman from Virginia has requested, and we've 
granted, he's going to ask a couple additional questions. He's 
assured me he'll keep them relatively brief and you can keep 
your responses succinct, if possible. Thank you.
    Mr. Scott. Thank you. Mr. Acosta, are you familiar with the 
Death in Custody Act?
    Mr. Acosta. Congressman, I am not.
    Mr. Scott. It requires any death in the custody of the 
State that is during arrest, in prison, to be reported to the 
Justice Department.
    Mr. Acosta. Yes.
    Mr. Scott. Okay. Are you doing anything with that 
information?
    Mr. Acosta. Congressman, a special litigation section 
enforces a statute CRIPA, Civil Rights of Institutionalized 
Persons Act. We review instances of problems in juvenile 
facilities or in jails, and where there is a higher or where 
there is an unacceptable degree of violence, then we do open 
investigations. We opened 14 investigations under CRIPA last 
year.
    Mr. Scott. Are you looking for patterns and practices, how 
you can try to--the purpose of it is to get a database so you 
can see what's going wrong and looking for patterns. I mean, 
I'd assume that if it had been done a few years ago, you'd find 
that chokeholds would probably not be a good idea because 
you're killing people, and you wouldn't get that information 
without that database. I would ask you to review the data to 
see if there's anything we ought to be doing legislatively as a 
result of this information that we didn't have before.
    Second question is, under the pre-clearance provision, 
there's some requests that are pre-cleared that some of us 
found, frankly, disagreed with. The letter of submission is 
just a terse statement that you reviewed it and approve it. Who 
would we contact to get the staff memos so we would find what 
the analysis actually was?
    Mr. Acosta. Congressman, as you're aware, whatever 
deliberations take place at the Department of Justice are 
internal and are privileged attorney communication.
    Mr. Scott. Okay. But you don't have to make it privileged. 
I mean, you can release it if you want.
    Mr. Acosta. Congressman, the Department of Justice for 
decades has exerted deliberative and attorney privilege with 
respect to internal attorney-to-attorney discussions.
    Mr. Scott. The third question is a follow-up to the 
gentleman from Maryland, Mr. Van Hollen, on whether or not a 
religious organization has the statutory right to discriminate 
based on religion, and you kind of went back and forth on that. 
Under the Clinton administration, the interpretation was that a 
religious organization couldn't get direct funding, so the 
issue would never come up.
    The Cleveland voucher case went to great lengths to point 
out that it wasn't the State making the decision as to which 
school got the money, it was the parent. That discussion would 
be bizarre if the State could have written a check straight to 
the parochial school. I think there's an understanding that you 
cannot directly fund a pervasively sectarian organization.
    Is it your contention that the Federal Government can 
contract directly with a church, directly fund a church and 
contract with that church for the provision of Government 
services?
    Mr. Acosta. Congressman, first, let me say I don't think I 
went back and forth. I think I made clear that there was no--
responding to the question that there was no legal prohibition. 
And, in fact, Executive Order 13279 makes clear that except as 
otherwise----
    Mr. Scott. Is that President Bush's Executive Order?
    Mr. Acosta. Yes, it is----
    Mr. Scott. It's not President Johnson's Executive Order.
    Mr. Acosta. It is the Executive Order in effect. It's the 
Executive Order that has been signed by a President. It makes 
clear that it's perfectly appropriate for organizations to 
apply on an equal basis, on a nondiscriminatory basis, for 
distribution of Federal funds so long as--or for Federal grants 
so long as they do not, one, inject religion into their 
programs or services, and two, do not discriminate in the 
provision of programs and services to recipients.
    Mr. Scott. Well, I think you're aware that you can never 
waive the Establishment Clause with an Executive Order. Are you 
saying that the Establishment Clause allows or does not allow 
direct funding of a pervasively sectarian organization like a 
church? Can the Federal Government contract directly with a 
church for the provision of Government services?
    Mr. Acosta. Congressman, the Establishment Clause does not 
prohibit an organization like the Salvation Army or a similar 
religious group from providing services pursuant to a 
Government grant so long as it does so without injecting 
religion into the provision of services and so long as it does 
so on a non-discriminatory manner in the selection of 
recipients of those funds.
    Mr. Scott. That means, yes, you can directly fund a 
pervasively sectarian organization?
    Mr. Acosta. That means that organizations can receive 
Federal grants----
    Mr. Scott. Okay. Now just one other kind of question. If 
the religion is intertwined in the services, like a prison 
program where you have to--where there's a Christian prison 
program, would that qualify for direct funding?
    Mr. Acosta. Congressman, I would certainly want to look at 
the degree of intertwining, the nature of the program, the 
extent to which religion is part of that program, and that is 
something we'd have to look at.
    Mr. Chabot. The gentleman's time has expired.
    Mr. Watt, did you want to----
    Mr. Watt. I just wanted to make a couple of unanimous 
consent requests.
    Mr. Chabot. Okay. Without objection, you're recognized.
    Mr. Watt. I ask unanimous consent, just to complete the 
record, that a letter from Members of this Committee to John 
Ashcroft dated June 23, 2004, and the response from Assistant 
Attorney General Moschella dated August 13, 2004, related to 
the Waffle House case be made a part of the record so that 
everybody would know what I was asking about.
    Mr. Chabot. Without objection, so ordered. Those are 
entered into the record.
    [The information referred is available in the Appendix.]
    Mr. Watt. And I think I already got unanimous consent to 
put the agenda in, didn't I?
    Mr. Chabot. I believe that is correct, but if not, it's 
entered at this time, as well.
    Mr. Watt. Thank you.
    Mr. Chabot. Okay.
    Mr. Scott. Mr. Chairman?
    Mr. Chabot. Yes, Mr. Scott?
    Mr. Scott. Mr. Chairman, I'd ask unanimous consent that all 
Members have five legislative days to revise and extend their 
remarks, include additional materials in the record, and to 
submit to the witness additional questions in writing for 
written response.
    Mr. Chabot. Without objection, so ordered.
    Mr. Watt. And can I just be clear, Mr. Chairman, that we're 
going to get some follow-up on the questions that we asked 
about?
    Mr. Chabot. Yes, and Mr. Acosta has just indicated in the 
affirmative.
    Mr. Acosta, we want to thank you for your testimony here 
this morning. There's nothing that this Committee has 
jurisdiction over or deals with that's more important than 
making sure that the civil rights laws in this country are 
enforced to the letter. And I want to commend you for your, I 
believe, very candid testimony here this morning. You have 
always been very open with the Committee and we appreciate that 
very much.
    If there is no further business to come before the 
Committee, we are adjourned. Thank you.
    [Whereupon, at 11:32 a.m., the Subcommittee was adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

Congressional Black Caucus Agenda for the 109th Congress, submitted by 
the Honorable Melvin Watt, a Representative in Congress from the State 
    of North Carolina, and Member, Subcommittee on the Constitution





 Letter from Members of the Committee on the Judiciary, dated June 23, 
 2004, to the Honorable John Ashcroft, Attorney General of the United 
States, U.S. Department of Justice, and response, dated August 13, 2004





Response to post-hearing questions from R. Alexander Acosta, Assistant 
  Attorney General, Civil Rights Division, U.S. Department of Justice






                                 
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