    [House Hearing, 110 Congress]
    [From the U.S. Government Publishing Office]

            LOCAL LAW ENFORCEMENT HATE CRIMES PREVENTION ACT OF 2007

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

                                    HEARING

                                   BEFORE THE

                       SUBCOMMITTEE ON CRIME, TERRORISM,
                             AND HOMELAND SECURITY

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                           ONE HUNDRED TENTH CONGRESS

                                 FIRST SESSION

                                       ON

                                   H.R. 1592

                                   __________

                                 APRIL 17, 2007

                                   __________

                               Serial No. 110-71

                                   __________

             Printed for the use of the Committee on the Judiciary

          Available via the World Wide Web: http://judiciary.house.gov

                                   ----------

                            U.S. GOVERNMENT PRINTING OFFICE

    34-756 PDF                    WASHINGTON : 2007

    For sale by the Superintendent of Documents, U.S. Government Printing
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                           COMMITTEE ON THE JUDICIARY

                     JOHN CONYERS, Jr., Michigan, Chairman
    HOWARD L. BERMAN, California         LAMAR SMITH, Texas
    RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr.,
    JERROLD NADLER, New York                 Wisconsin
    ROBERT C. (BOBBY) SCOTT, Virginia    HOWARD COBLE, North Carolina
    MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
    ZOE LOFGREN, California              BOB GOODLATTE, Virginia
    SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
    MAXINE WATERS, California            DANIEL E. LUNGREN, California
    MARTIN T. MEEHAN, Massachusetts      CHRIS CANNON, Utah
    WILLIAM D. DELAHUNT, Massachusetts   RIC KELLER, Florida
    ROBERT WEXLER, Florida               DARRELL ISSA, California
    LINDA T. SANCHEZ, California         MIKE PENCE, Indiana
    STEVE COHEN, Tennessee               J. RANDY FORBES, Virginia
    HANK JOHNSON, Georgia                STEVE KING, Iowa
    LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
    BRAD SHERMAN, California             TRENT FRANKS, Arizona
    TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
    ANTHONY D. WEINER, New York          JIM JORDAN, Ohio
    ADAM B. SCHIFF, California
    ARTUR DAVIS, Alabama
    DEBBIE WASSERMAN SCHULTZ, Florida
    KEITH ELLISON, Minnesota

                Perry Apelbaum, Staff Director and Chief Counsel
                     Joseph Gibson, Minority Chief Counsel
                                     ------

            Subcommittee on Crime, Terrorism, and Homeland Security

                  ROBERT C. (BOBBY) SCOTT, Virginia, Chairman

    MAXINE WATERS, California            J. RANDY FORBES, Virginia
    WILLIAM D. DELAHUNT, Massachusetts   LOUIE GOHMERT, Texas
    JERROLD NADLER, New York             F. JAMES SENSENBRENNER, Jr.,
    HANK JOHNSON, Georgia                Wisconsin
    ANTHONY D. WEINER, New York          HOWARD COBLE, North Carolina
    SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
    MARTIN T. MEEHAN, Massachusetts      DANIEL E. LUNGREN, California
    ARTUR DAVIS, Alabama
    TAMMY BALDWIN, Wisconsin

                          Bobby Vassar, Chief Counsel

                        Michael Volkov, Minority Counsel

                                C O N T E N T S

                                  ----------

                                 APRIL 17, 2007

                                                                       Page

                                    THE BILL

    H.R. 1592, the ``Local Law Enforcement Hate Crimes Prevention Act
      of 2007''......................................................   142

                               OPENING STATEMENTS

    The Honorable Jerrold Nadler, a Representative in Congress from
      the State of New York, and Member, Subcommittee on Crime,
      Terrorism, and Homeland Security...............................     1
    The Honorable Louie Gohmert, a Representative in Congress from
      the State of Texas, and Member, Subcommittee on Crime,
      Terrorism, and Homeland Security...............................     2
    The Honorable John Conyers, Jr., a Representative in Congress
      from the State of Michigan, and Chairman, Committee on the
      Judiciary......................................................     4

                                   WITNESSES

    The Honorable Mark L. Shurtleff, Attorney General of the State of
      Utah
      Oral Testimony.................................................    17
      Prepared Statement.............................................    26
    Mr. Timothy Lynch, Director, Project on Criminal Justice, CATO
      Institute
      Oral Testimony.................................................    32
      Prepared Statement.............................................    34
    Mr. Frederick M. Lawrence, Dean, The George Washington University
      Law School
      Oral Testimony.................................................    39
      Prepared Statement.............................................    41
    Mr. David Ritcheson, Harris County, TX
      Oral Testimony.................................................    67
      Prepared Statement.............................................    39
    Mr. Brad W. Dacus, President, Pacific Justice Institute
      Oral Testimony.................................................    70
      Prepared Statement.............................................    73
    MR. JACK McDEVITT, ASSOCIATE DEAN, NORTHEASTERN UNIVERSITY
      Oral Testimony.................................................    83
      Prepared Statement.............................................    85

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Prepared Statement of the Honorable Sheila Jackson Lee, a
      Representative in Congress from the State of Texas, and Member,
      Subcommittee on Crime, Terrorism, and Homeland Security........     8
    Prepared Statement of the Honorable J. Randy Forbes, a
      Representative in Congress from the State of Virginia, and
      Ranking Member, Subcommittee on Crime, Terrorism, and Homeland
      Security.......................................................   131

                                    APPENDIX

    Material Submitted for the Hearing Record........................   141

                            OFFICIAL HEARING RECORD
          Material Submitted for the Hearing Record but not Reprinted

    Publication entitled ``Hyperlink to Hinduphobia: Online Hatred,
        Extremism and Bigotry Against Hindus,'' Hindu American Foundation.
        This submission is available at the Subcommittee and can also be
        accessed at:

        http://www.hinduamericanfoundation.org/pdf/hate_report_2007.pdf

            LOCAL LAW ENFORCEMENT HATE CRIMES PREVENTION ACT OF 2007

                                  ----------

                            TUESDAY, APRIL 17, 2007

                  House of Representatives,
                  Subcommittee on Crime, Terrorism,
                                  and Homeland Security
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Subcommittee met, pursuant to notice, at 2:08 p.m., in
    Room 2141, Rayburn House Office Building, the Honorable Jerrold
    Nadler presiding.
        Present: Representatives Nadler, Conyers, Waters, Johnson,
    Jackson Lee, Baldwin, Gohmert, Coble, Chabot, and Lungren.
        Mr. Nadler. Good afternoon. I am Congressman Jerrold
    Nadler. I thank you all for attending today's hearing.
        Unfortunately, the Chairman of the Subcommittee, Bobby
    Scott, is in Virginia at a memorial service for the victims of
    yesterday's tragedy at Virginia Tech. My thoughts, of course,
    are with the victims' families and loved ones.
        At this point, I ask that we take a moment of silence in
    the memory of these victims.
        I know that addressing the issue of hate crimes is a big
    priority for Chairman Scott, as it is for me, and in that
    spirit, we will begin this important hearing.
        Today's hearing deals with one of the most destructive
    crimes in our society, crimes committed against victims who
    have been singled out solely because someone does not like who
    they are. Whether it is because of the actual or perceived
    race, color, religion, national origin, sexual orientation,
    gender, gender identity or disability of the victim, these
    violent acts often can cause death or bodily injury and are
    absolutely reprehensible.
        They target not just an individual but an entire group.
    These crimes do and are often intended to spread terror among
    all members of the group, and they are intended not merely to
    do so, but often to deter members of the group from exercising
    their constitutional rights, sometimes from simply walking down
    the wrong street or, indeed, any street.
        As with most criminal activity, bias crimes are properly
    investigated and prosecuted at both the Federal and State or
    local levels, depending on the facts of the case and the needs
    of the investigation.
        The FBI has the best national data on reported hate crimes,
    although the reporting program is voluntary. Since 1991, the
    FBI has documented over 113,000 hate crimes. For the year 2005,
    the most current data available, the FBI compiled reports from
    law enforcement agencies identify 7,163 bias-motivated criminal
    incidents that have been reported to them. Law enforcement
    agencies identified 8,795 victims arising from 8,373 separate
    criminal offenses.
        As in the past, racially motivated bias accounted for more
    than half, 54.7 percent, of all incidents. Religious bias
    accounted for 1,227 incidents, 17 percent, and sexual
    orientation bias for 1,017 incidents, 14 percent, followed by
    ethnicity/national origin bias with 944 incidents, 14 percent.
        While these numbers are disturbing, it is important to note
    that for a variety of reasons, hate crimes are seriously under-
    reported. These reported numbers are a serious understatement
    of the problem.
        The proposed legislation that we are going to be
    considering would provide real penalties and address the
    problem as it actually exists. It would deal not just with
    crimes designed to deprive someone of a narrow list of
    federally protected rights, but with all hate crimes committed
    where there is Federal jurisdiction. It also provides
    assistance for law enforcement back home to help them cope with
    this problem.
        Let us be clear: This is not an issue of free speech. What
    is covered here are criminal acts in which the victim is
    actually harmed and is selected because of his or her status.
    The law routinely looks to the motivation of a crime and treats
    the more heinous of them differently. Manslaughter is different
    from premeditated murder, which is different from a contract
    killing, though the result is the same in all cases.
        We all know how to make these distinctions and the law does
    it all the time. The only question for Members is whether they
    believe that singling out a person for a crime of violence
    because of his or her race or religion or because of any other
    trait mentioned in this bill is sufficiently heinous to require
    strong action by law enforcement. Do we want to give law
    enforcement the tools to deal with this very real problem? I,
    for one, hope the answer is yes.
        For many years, Congress debated what were known as the
    Federal lynch laws. These were designed to deal with the
    widespread practice of lynching primarily African-Americans.
    There was staunch resistance of these laws here in Congress,
    and their enactment was delayed for decades. It was not a proud
    moment or, I must say, a series of moments lasting for decades
    in our Nation's history. We now have the opportunity to do the
    right thing. I hope we can agree to do so.
        I thank you.
        I now yield to the distinguished Ranking Member, Mr.
    Gohmert, for opening comments.
        Mr. Gohmert. Thank you, Mr. Chairman.
        We all do extend our prayers and sympathy to the families
    of those who have been hurt or killed at Virginia Tech and, in
    fact, to the entire Virginia Tech family itself.
        Some might think why should we be taking this matter up on
    a day after such a tragedy when today the Crime Subcommittee
    here will have this hearing on the new hate crime bill. We know
    that people who act out of hate can and do cause terrible
    devastation and hurt. There is no question about that. Those
    who cause such harm deserve and should be punished.
        A couple of the most often cited cases as a basis for
    creating new hate crimes laws usually include the case,
    tragically, where the African-American in Texas was dragged to
    death and another horrible case in Texas where a young man was
    killed for being a homosexual. In both of those cases, the main
    perpetrators got the death penalty they deserved.
        These and other cases are often cited as reasons for hate
    crime laws. These are cases in which hate crime laws actually
    would have made no difference at all.
        In the dragging death case, I would personally support
    punishment where the victim's family in that case could choose
    the rope or the chain used to drag and then the terrain they
    want to drag the defendant over to bring about the death
    penalty. But that is not what this does. In fact, the death
    penalty is not even an issue here. So it would have had
    absolutely no effect on some of the cases that are heralded as
    poster examples.
        The new hate crime bill creates a vague, ambiguous Federal
    offense that sends a message that random, senseless acts of
    violence, possibly like yesterday at Virginia Tech, are far
    more preferable in society than the same violent actions with a
    motive.
        Never mind that sociopaths and antisocial personalities who
    commit random, senseless acts of violence are normally more
    than likely difficult to be rehabilited. They will not get
    punished under this new law. Gang members who commit some of
    the most senseless and tragic acts of violence, sometimes
    simply as an initiation ritual, will be punished not under this
    bill.
        This hate crimes bill says to the world that sexual
    orientation--and not just gender, but gender identity, whatever
    that vague definition means--are in the same category as those
    persons who have suffered for the color of their skin or their
    religion. It says to the world that in the priorities of the
    majority of the United States Congress, a transvestite with
    gender identity issues will now be more important to protect
    than a heterosexual, than college or school students, or even
    senior citizens and widows with no gender identity issues.
        Whatever happened to the idea that we were all created
    equal and that we were all matter equally in God's eyes? We all
    deserve equal protection.
        Think about the plain meaning of the word ``sexual
    orientation.'' Regardless of the definitions society puts on
    those words today, the courts will one day say sexual
    orientation means exactly what they say, that sexual
    orientation one of these days will be taken to mean those very
    words that includes you are sexually oriented toward children,
    sexually oriented toward corpses, sexually oriented toward
    animals. Someday, these words can be easily cited by an
    appellate court as having the very plain meaning, not just the
    meaning that socially and culturally is accepted right now.
        One other aspect that is not usually discussed will come in
    the new law would be applied along with Article 18 U.S. Code
    Section 2(a) of the Federal criminal code that says, ``Whoever
    aids, abets, counsels, commands, induces or procures a crime
    commission is punishable just as if he is the principal.''
        You should understand what that means. If a Christian,
    Jewish or Muslim religious leader teaches or preaches that
    homosexuality is wrong or is a sin or someone in the leader's
    flock commits a crime against a person who practices such act,
    that religious leader may have counseled or induced under the
    argument and someday someone will say so and ministers will be
    arrested for their preaching. They will be said to have incited
    such conduct through their teaching from the Bible, the Torah
    or Koran.
        As a matter of fact, some people already blame religious
    ministers for acts of violence, even though none of them defend
    anyone who supports those acts of violence. They are wrong, and
    they are already punishable under existing laws.
        As a judge, I have harshly sentenced people who have
    committed crimes of hate and also those who have committed
    crimes as random, cold-blooded, heartless thugs, and I can tell
    you the victims and their loved ones in each case are all
    traumatized and distraught and deserving of sympathy and
    compassion.
        Proponents of this legislation say hate crimes are more
    deserving of special punishment because they send, ``fear or in
    discomfiture'' across an entire community, but if you look at
    the fear and discomfiture that is created by crimes like we saw
    yesterday, you understand everyone deserves equal protection.
    It was not apparently a hate crime unless it is true that he
    killed people because they were rich. It still sent fear and
    discomfiture to every college campus.
        This hate crime legislation, though, tells the country that
    victims like those young people yesterday, if they are killed
    randomly, they are not nearly as important to the country as
    transvestites with gender issues.
        So the message of the hate crime legislation today is
    apparently this: If you are going to shoot, brutalize or hurt
    someone, the majority in Congress begs you not to hate us while
    you are shooting or brutalizing us. Please make it a random,
    senseless act of violence,'' and that does not make sense.
        Thank you.
        Mr. Nadler. Thank you.
        I will now recognize for 5 minutes the distinguished
    Chairman of the full Committee, Mr. Conyers.
        Mr. Conyers. Well, thank you for giving me enough time to
    get my breath after that presentation, Mr. Chairman.
        As the author of this subject matter, hate crimes, for the
    last decade, I have never started a hearing with that much
    opposition to this legislation. But then that is what we are
    here for, to see if we can talk and reason our way across this
    understanding that we are not giving anybody superior
    protection; we are bringing in a group that have been excluded
    for a long time.
        You yourself referred to lynchings, which were tragically
    one time commonplace in this country. Nearly 4,000 African-
    Americans were killed, lynched, tortured between 1880 and 1930,
    and during the same period, thereafter, religious groups of
    Jewish faith, Mormons also, and others were subject to attack.
    Arab-Americans are now coming into that category as well.
        As we all understand, hate violence against minority groups
    of all kinds in this Nation has a long and ignominious history
    that continues even today. We have seen and we heard the
    statistics that Chairman Nadler has referenced, and so to
    protect against this hate violence, to protect the Nation
    against hate violence, I have introduced the Hate Crimes
    Prevention Act for the last decade with ever-increasing
    support.
        The measure before us today has more than 130 cosponsors
    and will provide assistance to State and local enforcement
    agencies to amend Federal law to facilitate the investigation
    and prosecution of violent, bias-motivated crimes. It does not
    take the original jurisdiction away from the States. This
    complements some very important support that frequently is
    needed in some areas for these crimes to be prosecuted.
        I am proud that over 230 educational, religious
    organizations, civic groups, civil rights organizations,
    virtually every major law enforcement organization in the
    country has endorsed the proposal that is before us. It is a
    proposal that is very little different from the one I
    introduced in the last Congress that passed the House of
    Representatives.
        So, despite the deep impact of hate violence on
    communities, current law limits Federal jurisdiction over hate
    crimes to incidents only if the victim is engaged in federally
    protected activities, and that we propose to modify.
        And so, like the Church Arson Prevention Act of 1996 which
    helped Federal prosecutors combat church arson by addressing
    unduly rigid jurisdictional requirements under Federal law,
    State and local authorities currently prosecute the
    overwhelming majority of hate crimes and will continue to do so
    under this legislation. The Federal Government will continue to
    defer to State and local authorities in the vast majority of
    cases. The Attorney General or high-ranking Justice Department
    official must approve any prosecutions taken in this sense.
        So we come together to reaffirm in even greater numbers and
    with greater understanding the need for hate crime legislation,
    and I have every confidence that it will pass in the House of
    Representatives, and we are hoping to get it through this time
    in the other body.
        Thank you for this opportunity, Mr. Chairman.
        Mr. Nadler. Thank you.
        In the interest of proceeding to our witnesses and mindful
    of our busy schedules, I would guess that other Members submit
    their statements for the record. Without objection, all Members
    will have 5 legislative days to submit opening statements for
    inclusion in the record.
        Without objection, the Chair will be authorized to declare
    a recess of the hearing if any reason arises.
        As we ask questions of our witnesses, the Chair will
    recognize Members in the order of their seniority on the
    Subcommittee, alternating between majority and minority
    Members, provided that the Member is present when his or her
    term arises. Members who are not present when their turn begins
    will be recognized after the other Members have had the
    opportunity to ask their questions. The Chair reserves the
    right to accommodate a Member who is unavoidably late or who is
    only able to be with us for a short time.
        I would now like to welcome our distinguished panel of
    witnesses.
        Our first witness, the Honorable Mark Shurtleff, is
    currently in his second term as the attorney general for the
    State of Utah. In addition to his current office, Mr. Shurtleff
    serves as chairman for the internal relations and civil rights
    committee of the National Association of Attorneys General. He
    has previously served in the United States Navy, Judge Advocate
    General's Corps, as an officer and attorney. Mr. Shurtleff
    received his bachelor's degree from Brigham Young University
    and his law degree from the University of Utah School of Law.
        Our next witness, Mr. Timothy Lynch, is the associate
    director of the project on criminal justice for the Cato
    Institute. Prior to his current position, Mr. Lynch served on
    the National Committee to Prevent Wrongful Executions. He has
    also filed several amicus briefs in the United States Supreme
    Court in cases involving constitutional rights. Mr. Lynch holds
    a bachelor's and law degree from Marquette University.
        Next is that Dean Frederick Lawrence, dean and professor of
    law at the George Washington University Law School. Dean
    Lawrence began his legal career as a clerk to Judge Amalya L.
    Kearse in the U.S. Court of Appeals for the Second Circuit. He
    was later named an assistant U.S. attorney to the Southern
    District of New York where he became chief of the civil rights
    unit. Dean Lawrence has a bachelor's degree from Williams
    College and a law degree from Yale University.
        Our next witness is Mr. David Ritcheson who survived a
    horrendous act of hate violence nearly 1 year ago on April 22,
    2006, in Harris County, TX. Two individuals attacked him
    because he is a Mexican-American. He has agreed to speak about
    this terrible experience and to explain why legislation like
    the Local Law Enforcement Hate Crimes Prevention Act of 2007 is
    so very important.
        Our next witness, Mr. Brad Dacus--I hope I am pronouncing
    that right--served as legislative assistant to U.S. Senator
    Phil Gramm and went on to receive his law degree from the
    University of Texas Law School. For the next 5 years, Mr. Dacus
    coordinated religious freedom and parental rights cases
    throughout the western States. In 1977, Mr. Dacus was the
    founder and president of the Pacific Justice Institute whose
    mission is to defend religious liberty and parental rights.
        Our final witness is Dean Jack McDevitt, associate dean for
    research and graduate students and the director of the
    Institute on race and justice in the College of Criminal
    Justice at Northeastern University. In addition to his current
    post, Dean McDevitt has testified as an extra witness before
    the U.S. Senate Judiciary Committee and the U.S. Civil Rights
    Commission. He has also served as a consultant to the FBI and
    the Bureau of Justice Statistics.
        On behalf of the Subcommittee, I want to extend a warm
    welcome to all of you.
        And I want to recognize, for the purpose of extending a
    welcome to a constituent, the distinguished gentlelady from
    Texas, Ms. Sheila Jackson Lee.
        Ms. Jackson Lee. Let me thank the Chairman of the Committee
    and let me thank you very quickly, recognizing the kindness
    that you have extended.
        Let me also acknowledge the Chairman of the full Committee
    and the Chairman of the Subcommittee for this very important
    hearing.
        My statement and my welcome is to welcome David for his
    courage. As a freshman at Klein Collins High School, he had to
    experience a horrific experience that no child--and he is a
    young man--should ever have to have as part of his memory.
        David, we thank you and your family, Mr. and Mrs. Galvan,
    and your wonderful counselor for allowing me to sit with you
    and to hear your story so many, many, many months ago.
        Might I say that I enthusiastically support the underlying
    bill, and I am delighted to have the opportunity to raise your
    bill, David Ray's Law, that speaks to the issue of young people
    and the horrificness of young people being engaged in hate
    crimes and being solicited by adults, and I hope that the David
    Ray's Law can be a part of the underlying bill to make this a
    complete response to the tragedy and the disaster and the
    devastation of hate crimes.
        Welcome, David. We are all so very proud of you.
        And I yield back.
        [The prepared statement of Ms. Jackson Lee follows:]
           Prepared Statement of the Honorable Sheila Jackson Lee, a
        Representative in Congress from the State of Texas, and Member,
            Subcommittee on Crime, Terrorism, and Homeland Security

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Nadler. I thank the gentlelady.
        Without objection, the written statements from the
    witnesses will be made part of the record in their entirety.
        I would ask each witness to summarize your testimony in 5
    minutes or less. To help you stay within that time, there is a
    timing light at your table, which you will see. When 1 minute
    remains, the light will switch from green to yellow, and then
    to red when the 5 minutes are up.
        I will recognize--I suppose, left to right--Mr. Shurtleff
    first.
        Push the button.

    TESTIMONY OF THE HONORABLE MARK L. SHURTLEFF, ATTORNEY GENERAL
                          OF THE STATE OF UTAH

        Mr. Shurtleff. My name is Mark Shurtleff, Utah attorney
    general. Mr. Chairman, Members of the Committee, I appreciate
    the opportunity to be here today and speak in support of H.R.
    1592.
        For the second year in a row now, the attorney general of
    Illinois, Lisa Madigan, and I have co-authored a letter signed
    by both sides of the aisle, if you will, of attorneys general.
    We have submitted a letter dated April 16, signed by 26
    attorneys general, and, in fact, we just had another letter
    passed out of the same date, signed by your former colleague
    and now my colleague, Attorney General Bill McCollum of
    Florida, in support of hate crimes legislation.
        [The information referred to follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Shurtleff. You know, as chief law enforcement officers
    of our States and jurisdictions, we work very closely on the
    front lines to protect our citizens, both their civil rights as
    well as protect them from crime. And as we all reflect on the
    horrific event of yesterday--and, clearly, at this point, we do
    not know the motives involved in that circumstance--we are
    seeing that obviously first responders are State and local
    officials are now working with the Federal officials in
    figuring out what went on and how we might be able to address
    these and protect our citizens more fully.
        So I am particularly interested today in coming before you
    and asking for your support in giving additional authority to
    Federal authorities. Now most often, you will see attorneys
    general come in and say, ``Do not federalize every crime. We
    are on the front lines. We will do it. We do not need the
    Federal Government stepping in every chance they can and
    federalizing every thing.'' In this case, we believe it is very
    important. We need your help.
        A number of States have passed similar hate crimes
    legislation over the years and, in fact, the 6 years I have
    been in office, we have worked every year diligently to try to
    pass an enforceable hate crime statute in the State of Utah. I
    am proud to say that last year, again, working across the
    aisle, we were able to do that. It was not what I had hoped for
    or the best law, but it is a good start.
        The bottom line is we need additional Federal legislation
    in order to better protect our citizens and to be able to
    cooperatively work with Federal Government to determine which
    appropriate punishment is the most effective.
        It is important in particular to amend Federal law, we
    believe, to include those additional categories and to make
    sure that those who commit these types of heinous crimes with
    premeditation and with a bias or prejudice, that we can prove
    beyond a reasonable doubt that they not just be engaged in a
    federally protected activity, but that we would be able to
    enhance the punishments if, in fact, we can show that bias or
    prejudice.
        In the 6 years, I have testified every year both before
    statehouse and senate committees. We have addressed every one
    of these issues that you are now facing. They are important
    issues, and there is a great deal of concern over these types
    of things. In my written comments, I include an amended version
    of what I call the hate crimes primer because there is so much
    misinformation, there is so much important education that needs
    to go along with this.
        This is what I used--and we used--in the State of Utah to
    pass effective, enforceable hate crimes legislation. I will
    just summarize this, if I can, in a few minutes some of those
    topics that I am talking about.
        First and foremost, I think, is we need to begin with the
    correct definition of hate crimes. We are not asking you to
    pass crimes that punish hate, that punish thought. We all
    support the first amendment of the Constitution, the right for
    people to hate, the right for people to say mean and horrible
    things.
        We are only supporting--in fact, this law, as proposed
    supports and makes a crime--actual criminal conduct--felonious,
    serious criminal conduct--that we as prosecutors can prove
    beyond a reasonable doubt was motivated by bias or prejudice
    against a particular group or member of that group.
        Another common myth or concern is that there are different
    types of crime; we ought to treat all crimes the same. For
    hundreds of years of our criminal jurisprudence in this
    country, we have recognized that we treat different crimes
    differently. For example, let's say, God forbid, a child is
    killed by a drunk driver and another person's child is killed,
    raped and assaulted in a premeditated way. Both children are
    dead, and it does not mean disrespect to the child killed by
    the drunk driver that we have a different penalty attached,
    based on the motivation, circumstances, at the time of the
    crime.
        So, clearly, it has been known in this country for hundreds
    of years that we punish, in the words of William Blackstone,
    those crimes most severely which are the most destructive of
    public safety and happiness, and literally, there is nothing
    more destructive of public safety than hate crimes, as
    recognized by the United States Supreme Court unanimous
    decision, a decision written by Chief Justice William Rehnquist
    in Wisconsin v. Mitchell.
        Bias-motivated crimes are more likely to provoke
    retaliatory crimes, inflict distinct emotional harms on their
    victims and incite community unrest than any other. They are a
    more serious crime that should be punished more severely, and
    we strongly urge you to pass this legislation.
        Thank you.
        [The prepared statement of Mr. Shurtleff follows:]
             Prepared Statement of the Honorable Mark L. Shurtleff

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Nadler. And I thank the gentleman.
        Mr. Lynch?

                 TESTIMONY OF TIMOTHY LYNCH, DIRECTOR,
              PROJECT ON CRIMINAL JUSTICE, CATO INSTITUTE

        Mr. Lynch. Thank you, Mr. Chairman. I appreciate the
    invitation to share my views with the Committee this afternoon.
        I know our time is short, so I am just going to outline
    three reasons why I think the proposed bill ought to be
    rejected: First, as a matter of law, the bill is inconsistent
    with our constitutional structure. Second, as a matter of
    policy, the bill is not necessary. And three, it is actually
    counterproductive. I think the bill is actually going to create
    more problems than it is going to solve.
        The bill is unconstitutional because it violates the legal
    doctrine of federalism. The 10th amendment to our Constitution
    says that the powers that are not delegated to the Federal
    Government are reserved to the States.
        Fighting crime is obviously a very important governmental
    responsibility, but it is one of those powers that was reserved
    to the State governments. Chief Justice John Marshall said it
    was clear that murders and felonies generally could not be
    punished by the Congress under our Constitution.
        As we know, the Federal criminal code has nevertheless
    expanded over the years. Past Congresses have relied upon the
    Commerce Clause to federalize crimes that are already on the
    books at the State and local level. But, from a historical
    perspective, much of that expansion has occurred in recent
    years. According to a report by the American Bar Association,
    more than 40 percent of the Federal criminal laws that have
    been enacted since the Civil War have been enacted just in the
    last 30 years.
        More importantly, the Supreme Court declared the Violence
    Against Women Act unconstitutional in 2000. In the Morrison
    case, the court said that if Congress could regulate gender-
    motivated violence, it could follow that Congress could bring
    murder and all of the other violent offenses within the Federal
    sphere. Since the Court is going to preserve the Constitution's
    distinction between what is national and what is local
    authority, I expect the Supreme Court would invalidate this
    bill following the rationale of the Morrison ruling.
        But even if we put this fundamental constitutional
    principle to one side, I think there are additional reasons to
    reject the proposed legislation. This law is not necessary. All
    of the violent acts that would be covered by the bill--arson,
    explosive devices, shooting people--are already on the books,
    and these offenses are investigated and prosecuted every day.
        The bill is called the Hate Crimes Prevention Act, but it
    is not going to prevent anything. Any thug who is already
    inclined to stab or shoot another human being is not going to
    put down his weapon because Congress passes some new law.
        The argument has been made that hate crimes are different
    because they affect not only just the victim, but the entire
    community. Now, for some hate crimes, I think that is
    undeniably true, but the same thing can be said for other
    crimes as well, and the tragedy at Virginia Tech University
    yesterday, I think, is an example of this.
        I heard reporters last night and this morning talk about
    that it is not just the students who were shot and wounded and
    their families that are grieving. It is that entire Virginia
    Tech campus. The entire campus of 20,000 people has been deeply
    impacted by what happened.
        Now some people argue that there is no harm in passing a
    bill like this. Some people I have debated over the years on
    hate crimes have said, ``Well, look, maybe this law will have a
    positive impact. Maybe it will not. Why not give it a try?''
    They do not see any downside to enacting bills like this. I
    think that view is mistaken because I think this bill can
    actually create more problems than it will solve.
        Now, given our time constraints, I will mention my most
    serious concern in this regard. I think the FBI needs to stay
    focused on al-Qaeda and terrorist groups. Former Attorney
    General Richard Thornburgh has made the point that one of the
    reasons the 9/11 terrorists were able to avoid detection prior
    to the attacks was because the FBI had gotten distracted by
    other missions assigned by the Congress. Federal law
    enforcement resources are limited. Every time a State offense
    is federalized, investigative resources are distracted from the
    fight against terrorism into investigating street crimes.
        In my view, the primary reason we have not suffered another
    terrorist attack here at home is because our defense and law
    enforcement agencies have been very vigilant when it comes to
    investigative leads having to do with terrorists, sleeper cells
    that might be here on U.S. soil. We need to maintain this
    vigilance.
        I know 5 years have passed since the 9/11, but we have to
    remember that it took 8 years. Eight years passed between that
    initial attack on the World Trade Center in 1993 and when the
    terrorists came to finish the job in 2001.
        Let me conclude with one final point. At the end of the
    day, there is a supposition to the idea of bias crimes, and
    that is the proposition that vicious crimes that are motivated
    by a hatred, rooted in jealousy, envy and greed should be
    punished less severely than crimes that are motivated by racial
    and religious prejudice. It is not necessary or desirable for a
    hierarchy of hatred to be written into our criminal code.
        Thank you.
        [The prepared statement of Mr. Lynch follows:]
                      Prepared Statement of Timothy Lynch

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Nadler. I thank the gentleman.
        Our next witness is Dean Lawrence.

               TESTIMONY OF FREDERICK M. LAWRENCE, DEAN,
              THE GEORGE WASHINGTON UNIVERSITY LAW SCHOOL

        Mr. Lawrence. Thank you, Mr. Chairman.
        Mr. Chairman, I am honored to be asked to testify here
    today in support of H.R. 1592, the Hate Crimes Prevention Act.
        Mr. Lynch has called up the concerns of terrorism and the
    post-9/11 world. I would say that it is precisely because we
    live in a post-9/11 world that we have to remember precisely
    what is most precious about this society, and that is the right
    not only to be different and to be an American, as one who
    chooses to be an American, but to be safe and physically
    secure. It is precisely that that underpins what this
    legislation is about.
        There are a number of issues that this legislation raises,
    Mr. Chairman. I would like to, in my brief time here, address
    four.
        First, much is said of ``Why punish motivation?'' We punish
    motivation in a bias crime law, such as the Hate Crimes
    Prevention Act, not because we are punishing thoughts; we are
    punishing harm, and it is precisely the motivation of a bias
    crime that makes the harm worse.
        I would say two additional things about motivation that we
    should focus on. One is that motivation is the key to the
    definition of bias crimes because, in fact, that is what causes
    the greater harm to the individual, to the entire target
    community, to the society.
        The second is that we are not breaking new ground here when
    we look at a motivation in the criminal law. As General
    Shurtleff said earlier, motivation has always been looked at,
    and it is not just that it says who is more punishable; it
    actually says whether the harm is worse.
        The great Justice Oliver Wendell Holmes observed, ``Even a
    dog knows the difference being tripped over and being kicked.''
    It could be the exact same physical injury, but the difference
    between being tripped over and kicked over is that notion of a
    personal physical invasion of the self and that a hate crime is
    precisely not just being kicked because of where you are or who
    you are; it is being kicked because of what you are.
        I would also add that a whole host of civil rights statutes
    dealing with employment and housing and a whole array of
    antidiscrimination laws turned precisely on motivation and the
    issue of motivation. An act of firing an individual in most
    States that could be perfectly legal for any reason becomes
    illegal because of the motivation of the actor.
        Similarly, when we turn to my second issue, that of free
    expression and the first amendment, as has been said earlier,
    in Wisconsin against Mitchell, a unanimous Supreme Court upheld
    the constitutionality of a bias crime law. And why? Because, as
    Chief Justice Rehnquist said, we are not punishing thoughts. We
    are punishing action. We are not punishing expression. We are
    punishing the acting on those expressions in a violent way.
        Similarly, when the Supreme Court upheld the cross burning
    statute in Virginia, in Virginia against Black, the court said
    that one may focus on act, not on expression of ideas.
        And the concern that had been raised earlier with respect
    to complicity, what about those who give speeches that others
    may rely on? Complicity is a well-known doctrine in the
    criminal law that requires an intent to see the crime happen.
        There will be no punishment under this statute or any
    statute for someone expressing views. There will certainly be
    the potential for punishment for someone who acts with the
    intent to see a bias crime happen, and there should be.
        This law would add to the arsenal of Federal law protectin
    gender, sexual orientation, gender identity and disability. All
    of these are aspects of violence that we have seen in the
    society. They have been measured by the FBI pursuant to its
    authority under the Hate Crimes Statistic Act and by private
    civil rights groups, such as the Anti-Defamation League and the
    Human Rights Campaign, in monitoring the existence of bias
    crimes.
        The inclusion of gender, sexual orientation, gender
    identity and disability in the Hate Crimes Prevention Act fills
    an important gap left in Federal bias crime law enforcement,
    both by the Violent Crime Control and Law Enforcement Act of
    1994 and by the Civil Rights Act of 1968.
        Let me conclude, Mr. Chairman, by addressing the federalism
    issues. First as to the Constitution, the constitutional basis
    for this statute is found with respect to many of the groups,
    particularly race and ethnicity, in the 13th amendment, but
    with respect to all of the groups in the Commerce Clause.
        Mr. Lynch mentioned earlier the Morrison case in which the
    court struck down the Violence Against Women Act, but, in fact,
    precisely what the court said in Morrison is there was no
    jurisdictional predicate in that law, and this bill precisely
    had a jurisdictional predicate. So there certainly is
    jurisdictional authority.
        With respect to the relations between Federal and State
    governments, I would say several things. First of all, those
    who would protect the province of local law enforcement would
    do well to listen to district attorneys and attorneys general
    who have embraced this legislation, as we just heard earlier.
    Secondly, all we would do is bring bias crimes within the realm
    of law enforcement generally, where Federal and State entities
    have managed to work together in a cooperative way.
        What we would expect is what I saw as an assistant U.S.
    attorney for 5 years in the Southern District of New York where
    local and Federal authorities worked together, and depending on
    the case, depending on who has the best statute, the case will
    be brought appropriately. This law will permit that to happen.
        Thank you, Mr. Chairman.
                  Prepared Statement of Frederick M. Lawrence

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

            TESTIMONY OF DAVID RITCHESON, HARRIS COUNTY, TX

        Mr. Ritcheson. Mr. Chairman and Members of the Committee,
    thanks for inviting me today to be a witness. My name is David
    Ritcheson, and I appear before you as a survivor of one of the
    most despicable and shocking acts of hate violence this country
    has ever seen in decades.
        Nearly 1 year ago on April 22, 2006, I was viciously
    attacked by two individuals because of my heritage as a
    Mexican-American.
        After a crawfish festival, I returned to a friend's house
    where I was going to spend the night. Shortly after arriving at
    this home, a minor disagreement turned into a pretext for what
    I believe was a premeditated hate crime. This was a moment that
    would change my life forever.
        After I was sucker-punched and knocked out, I was dragged
    into the backyard for an attack that would last for over an
    hour. Two individuals, one an admitted racist skinhead,
    attempted to carve a swastika on my chest. After they stripped
    me naked, they burned me with a cigarette, and I was kicked by
    the skinhead's steel-toed army boots.
        Witnesses recall the two attackers calling me a wetback and
    a spic as they continued to beat me as I lay unconscious. Once
    the attack came to an end, I was dragged to the rear of the
    backyard and left for dead. Reportedly, I lay unconscious in
    the backyard of the private residence for the next 8 to 9
    hours. Fortunately, God spared me the memory of what happened
    that night.
        Weeks later, I woke up in the hospital with so many
    emotions: fear, uncertainty, humiliation. America is the
    country I love, and it is our home. However, the hate crime
    committed against me illustrates that we are still, in some
    aspects, a house divided.
        These are some of the many reasons I am here before you
    today asking that our government take the lead in stopping
    individuals like those who attacked me from committing crimes
    against others because of where they are from, the color of
    their skin, the God they worship, the person they love or the
    way they look, talk or act.
        I spent 3 months in the hospital and had over 30 surgeries.
    Most of these operations were essential to saving my life, and
    others were necessary just to make my body able to perform what
    would be normal functions. My family would not have been able
    to afford these surgeries without help from our community and
    from all over the world.
        My family told me of the crowded waiting rooms full of
    great friends. I heard about prayer groups in front of my
    school, the Klein Collins Campus.
        As the recovery process continued, my family began to
    slowly tell me what had happened to me. I learned that one of
    the attackers, David Tuck, was a self-proclaimed racist
    skinhead who had viciously attacked at least two other
    Hispanics in the past few years, almost killing one of them. I
    learned that he had been in and out of several juvenile
    facilities and had just been released from the Texas Youth
    Commission. I was told that he had White power and swastika
    tattoos on his body.
        How could this type of hate crime have occurred just miles
    from my home in a city as diverse as Spring?
        I benefited from the support of groups such as the Anti-
    Defamation League and the League of United Latin American
    Citizens. There are so many people to thank for the support
    they have given me, including the ongoing encouragement to
    appear before you today.
        Last November and December, I sat in a courtroom in Harris
    County, Texas, and I faced my attackers for the first time as
    they went on trial. I am glad to say that justice was done, and
    both individuals who attacked me received life sentences.
    Specifically, I want to recognize the great job that Assistant
    District Attorney Michael Trent did during the prosecution of
    these two individuals.
        However, despite the obvious bias motivation of the crime,
    it is very frustrating to me that neither the State of Texas
    nor the Federal Government was able to use hate crime laws to
    prosecute my attackers. I am upset that neither the Justice
    Department nor the FBI was able to assist in the investigation
    of my case because the crime did not fit the hate crime laws.
        Today, I urge you to approve the Local Law Enforcement Hate
    Crimes Prevention Act. I was fortunate to live in a town where
    police had the resources, the ability and the will to
    effectively investigate and prosecute the hate violence
    directed against me. But other bias crime victims may not live
    in such places. Local prosecutors should be able to look to the
    Federal Government for support when these types of crimes are
    committed. Most importantly, these crimes should be prosecuted
    for what they are: hate crimes.
        I believe that education can have an important impact by
    teaching against hate and bigotry. In fact, I have encouraged
    my school and others to adopt the Anti-Defamation League's No
    Place for Hate program. If these crimes cannot be prevented,
    the Federal Government must he have the authority to support
    State and local bias crime prosecutions.
        My experience over the last year has reminded me of the
    many blessings I took for granted. With my humiliation and
    emotional and physical scars came the ambition and strong sense
    of determination that brought out the natural fighter in me. I
    realized just how important family and the support of community
    truly are.
        I will always recall my parents at my bedside providing me
    with strength and reassurance. They showed me how to be strong
    during my whole recovery, a process I am still going through
    today. Seeing the hopeful look of concern in the faces of my
    siblings, cousins, aunts and uncles every day was the direct
    support I needed to get through those terrible first few
    months. As each day passed, I became more and more aware of
    everything I had to live for. I am glad to tell you today that
    my best days still lie ahead of me.
        Thank you for the opportunity to tell my story. It has been
    a blessing to know that the most terrible day of my life may
    help put another human face on the campaign to enact a much-
    needed law such as the Local Law Enforcement Hate Crimes
    Prevention Act. I can assure you, from this day forward, I will
    do whatever I can to help make our great country, the United
    States of America, a hate-free place.
        Thank you.
        [The prepared statement of Mr. Ritcheson follows:]
                      Prepared Statement of David Richeson
        I appear before you as a survivor of one of the most despicable,
    shocking, and heinous acts of hate violence this country has seen in
    decades. Nearly one year ago on April 22, 2006, I was viciously
    attacked by two individuals because of my heritage as a Mexican-
    American. After hanging out with a few friends at a local crawfish
    festival, my friend and I, along with the two individuals who would
    eventually attack me, returned to the home in Spring, Texas where I was
    to spend the night. It was shortly after arriving at this private
    residence that a minor disagreement between me and the attackers turned
    into the pretext for what I believe was a premeditated hate crime. This
    was a moment that would change my life forever. After I was
    surprisingly sucker punched and knocked out, I was dragged into the
    back yard for an attack that would last for over an hour. Two
    individuals, one an admitted racist skinhead, attempted to carve a
    swastika on my chest. Today I still bear that scar on my chest like a
    scarlet letter. After they stripped me naked, I was burned with
    cigarettes and savagely kicked by this skinhead's steel toed army
    boots. After burning me in the center of the forehead, the skinhead
    attacker was heard saying that now I looked like an Indian with the red
    dot on my forehead. Moreover, the witnesses to the attack recalled the
    two attackers calling me a ``wetback'' and a ``pic'' as they continued
    to beat me as I lay unconscious. Once the attack came to an end, I was
    dragged to the rear of the back yard and left for dead. Reportedly, I
    lay unconscious in the back yard of this private residence for the next
    8-9 hours. It was not until the next morning that I was found and the
    paramedics came to my aid. I am recounting this tragic event from the
    testimony I heard during the trial of the two attackers this past fall.
    God spared me the memory of what happened that night. As I sit before
    you today, I still have no recollection of those life changing twelve
    hours or the weeks that followed.
        Weeks later I recall waking up in the hospital with a myriad of
    emotions, including fear and uncertainty. Most of all, I felt
    inexplicable humiliation. Not only did I have to face my peers and my
    family, I had to face the fact that I had been targeted for violence in
    a brutal crime because of my ethnicity. This crime took place in
    middle-class America in the year 2006. The reality that hate is alive,
    strong, and thriving in the cities, towns, and cul-de-sacs of Suburbia,
    America was a surprise to me. America is the country I love and call
    home. However, the hate crime committed against me illustrates that we
    are still, in some aspects, a house divided. I know now that there are
    young people in this country who are suffering and confused, thirsting
    for guidance and in need of a moral compass. These are some of the many
    reasons I am here before you today asking that our government take the
    lead in deterring individuals like those who attacked me from
    committing unthinkable and violent crimes against others because of
    where they are from, the color of their skin, the God they worship, the
    person they love, or the way they look, talk or act.
        I believe that education can have an important impact by teaching
    against hate and bigotry. In fact, I have encouraged my school and
    others to adopt the Anti-Defamation League's No Place for Hate(r)
    program. If these crimes cannot be prevented, the federal government
    must have the authority to support state and local bias crime
    prosecutions.
        As the weeks in the hospital turned into months, I began hearing
    the stories of support that came from literally all over the world. The
    local community pulled together in a really majestic way, reaffirming
    my hope in the good of humanity. My family told me about the crowded
    waiting rooms full of the great friends from past and present. I heard
    about prayer groups before school in front of my school, the Klein
    Collins Campus. The donations that helped my family and me get through
    an unthinkable time poured in from generous people scattered across the
    globe. These donations would help pay for the enormous hospital bills
    from the over thirty surgeries I underwent during the first three
    months after the attack. Most of these operations were essential to
    saving my life--and others were necessary just to make my body able to
    perform what would be normal functions.
        As the recovery process continued, my family began to slowly inform
    me of what had happened to me. They went on to tell me of the effective
    response by the Harris County Sheriff's Department and the Harris
    County Constables who had investigated the hate crime committed against
    me. I slowly began learning the about the background of the two
    individuals who had been arrested for attacking me. I was informed that
    one of the attackers, David Tuck, was a self proclaimed racist skinhead
    who had viciously attacked at least two other Hispanics in the past few
    years, almost killing one of them. I learned that he had been in and
    out of several juvenile facilities. Most surprising, I learned that he
    had been released from the Texas Youth Commission a little over a month
    before he attacked me. In fact, he was still on probation the night he
    nearly ended my life. I was told that he had ``white power'' and
    swastikas tattoos on his body. I was informed that his older step
    brother, a major influence in his life, was also a self-proclaimed
    skinhead currently serving time in a Texas jail. Here I was, learning
    shocking details of a person who lived only miles from me and who had
    at one time attended the same high school that I attended. How could
    this type of hate be breeding just miles from my home in a city as
    diverse as Spring without anyone taking notice?
        I quickly learned of and benefited from the support of groups such
    as the Anti-Defamation League (ADL) and League of United Latin American
    Citizens (LULAC). Both groups immediately provided whatever support
    they could to help me and my family. From setting up fundraisers to
    help my family with unanticipated expenses to providing emotional
    support confirming that I was not going through this alone, both groups
    were instrumental in assisting me and my family in the process of
    moving forward. There are so many people to thank for the support they
    have given me, including the ongoing encouragement to appear before you
    today.
        Last November and December I sat in a courtroom in Harris County,
    Texas and faced my attackers for the first time as they went through
    their respective trials. I am glad to say that justice was done. I am
    proud of the job our county prosecutors and investigators did in
    ensuring life sentences for the two individuals who attacked me.
    Specifically, I want to recognize the great job that Assistant District
    Attorney Mike Trent did during the prosecution of these two
    individuals. However, despite the obvious bias motivation of the crime,
    it is very frustrating to me that neither the state of Texas nor the
    federal government was able to utilize hate crime laws on the books
    today in the prosecution of my attackers. I am upset that neither the
    Justice Department nor the FBI was able to assist or get involved in
    the investigation of my case because ``the crime did not fit the
    existing hate crime laws.'' Today I urge you to take the lead in this
    time of needed change and approve the ``Local Law Enforcement Hate
    Crimes Prevention Act of 2007''. I was fortunate to live in a town
    where local law enforcement authorities had the resources, the
    ability--and the will--to effectively investigate and prosecute the
    hate violence directed against me. But other bias crime victims may not
    live in such places. I ask you to provide authority for local law
    enforcement to work together with federal agencies when someone is
    senselessly attacked because of where they are from or because of who
    they are. Local prosecutors should be able to look to the federal
    government for support when these types of crimes are committed. Most
    importantly, these crimes should be called what they are and prosecuted
    for what they are, ``hate crimes''!
        In fact, because there was so much attention focused on the fact
    that my case was not being prosecuted in Texas as a hate crime, the
    Anti-Defamation League and the Cook County (Illinois) Hate Crimes
    Prosecution Council published a Pamphlet called ``Hate Crimes Data
    Collection and Prosecutions:Frequently Asked Questions,'' designed to
    address some of the basic legal and practical considerations involved
    in labeling and charging a hate crime.
        My experience over the last year has reminded me of the many
    blessings I took for granted for so long. With my humiliation and
    emotional and physical scars came the ambition and strong sense of
    determination that brought out the natural fighter in me. I realized
    just how important family and the support of community truly are. I
    will always recall my parents at my bedside providing me with strength
    and reassurance. They showed me how to be strong during my whole
    recovery, a process I am still going through today. Seeing the hopeful
    look of concern in the faces of my siblings, cousins, aunts and uncles
    everyday was the direct support I needed to get through those terrible
    first few months. As each day passed, I became more and more aware of
    everything I had to live for. I am glad to tell you today that my best
    days still lay ahead of me.
        Thank you for the opportunity to tell my story. It has been a
    blessing to know that the most terrible day of my life may help put
    another human face on the campaign to enact a much needed law such as
    the ``Local Law Enforcement Hate Crimes Prevention Act of 2007.'' I can
    assure you, from this day forward I will do what ever I can to help
    make our great county, the United States of America, a hate free place
    to live.

        Mr. Nadler. Mr. Dacus?

                TESTIMONY OF BRAD W. DACUS, PRESIDENT,
                       PACIFIC JUSTICE INSTITUTE

        Mr. Dacus. Thank you very much.
        The Pacific Justice Institute, an organization which I am
    privileged to lead, focuses on the defense of religious and
    civil liberties. From that vantage point, we encounter not just
    theoretical, but practical, real-life problems engendered by
    this type of legislation.
        The Committee has already been apprised of the federalism
    concerns implicated by the legislation. I would now like to
    focus briefly on another problem with this legislation: The
    alarming potential, as evidenced by actual cases and
    situations, for well-intentioned hate crimes legislation to
    squelch free speech, particularly religious free speech.
        This has been particularly evident in California, which has
    taken a very aggressive approach to hate crimes enforcement.
    Specifically, let me just give you point-blank an example for
    the sake of time. In California, the State capital of
    California, Sacramento, there was a day of silence, a day used
    to promote tolerance, and yet it was on this day of silence
    where some Slavic immigrants from the former Soviet Union, very
    firm in their religious beliefs and convictions on the matter,
    wore purely religious-based T-shirts with religious messages on
    the issue of homosexuality.
        They were greeted not only with mocking and names, but they
    had food thrown at them and were punched, assault and battery,
    and then they were taken to the principal's office where they
    were told that they had to remove their shirts or be suspended
    for 2 days. After praying about it, they came back to the
    principal, and they said, ``If we have to choose between being
    suspended and having to deny our faith, go ahead and suspend us
    because we will not deny our faith.''
        Members of this Committee, that was done under the context
    of hate crimes. That is exactly what we are talking about
    taking place in the State of California right now. To make it
    more specific, there was a case that came down in California
    called Harper v. Poway Unified School District. That was the
    case specifically. It was very, very similar to this case. The
    gentleman wore a T-shirt, offensive, the same subjects.
        However, Judge Reinhardt, in his decision for the Ninth
    Circuit Court of Appeals, sort of famous in California, cited
    the hate violence education statute, College Education Code,
    Section 201 and 220, as justification for stifling a peaceful
    but politically incorrect opposing viewpoint.
        Though there were no allegations of violence against
    Harper, the court nonetheless concocted a theory of
    ``psychological assault'' against homosexual students which it
    reasoned were just as harmful and, therefore, just as subject
    to censorship and sanction.
        Once again, this is not a hypothetical. This is the
    reality. Fortunately for us, we have a Supreme Court that
    vacated that erroneous decision.
        In addition to finding it in the public schools, we have
    something even more direct, and that is dealing with an actual
    pastor, not a theoretical pastor, an actual pastor. He is
    Pastor Yancey, a wonderful man with a strong conviction and
    belief in his Christian faith.
        We were called to defend him after he was summoned before a
    local human relations task force pursuant to the county for
    distributing religious tracts. These tracts depicted 9/11
    terrorist acts and stated, ``Remember 9/11. In the name of
    Allah, they brought destruction and death to thousands. In the
    name of Jesus Christ, you can have eternal life.''
        Now it is hard to imagine a situation more in line with the
    Supreme Court's long list of leafleting precedents, such as
    Martin v. Struthers or Watchtower Bible v. Village of Stratton.
    Yet Pastor Yancey was accused of hate speech against all
    Muslims and was threatened.
        Thankfully, we were able to successfully defend the pastor
    against these charges, but it is alarming--most alarming--to
    think that some officials believe that under the pretext of
    preventing hate speech, they can interrogate a clergyman
    concerning purely religious statements.
        Ironically, by the way, Pastor Yancey served 20 years in
    the Marine Corps and understands religious freedom very well,
    as I am sure the Members of this Committee do as well.
        Finally, we have an actual attempt to intimidate pastors
    through this procedure. It has been said that--we are dealing
    with complicity here--pastors cannot be prosecuted, as
    mentioned earlier. There is nothing wrong with free expression.
        Well, if you were to take on one of these cases where one
    of their members is accused of a hate crime, there is going to
    be some interrogating. There are going to be some subpoenas.
    Pastors can be subpoenaed, every member of their parish, their
    congregation could be subpoenaed and intimidated to never
    mention certain words ever again Sunday morning or during our
    synagogue services. That is the reality that we are talking
    about with regard to the criminal process, and that is why we
    see this as such an egregious violation for liberty.
        A decision by Congress to inject the Federal Government via
    this hate crimes bill into the culture wars of fundamental
    theological disputes can only engender further divisiveness and
    limitations on free speech. This Congress has sworn to uphold
    the Constitution and the rights therein, but if this hate
    crimes bill becomes law, which we contend is unconstitutional,
    then the Pacific Justice Institute and others just like us will
    have no choice but to heavily challenge it in the courts. I
    petition you to not put us in that situation.
        Thank you for your time.
        [The prepared statement of Mr. Dacus follows:]
                      Prepared Statement of Brad W. Dacus

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Nadler. I thank the gentleman.
        And now we will hear from Dean McDevitt.

                       TESTIMONY OF JACK McDEVITT

        Mr. McDevitt. Thank you very much, Chairman. It is a real
    honor today to be here to be able to stand in support of the
    Hate Crimes Prevention Act of 2007.
        I have done 20 years of my life researching hate crimes,
    talking to police officers, talking to victims, and I think
    that we understand today that we are in the process of being
    able to really support and take this legislation to the next
    step.
        In addition, I have trained thousands of law enforcement
    officers over the past 20 years on how to investigate and how
    to identify hate crimes, and in that training, I have learned
    how difficult hate crimes are for law enforcement to
    investigate and how they need the support of outside groups to
    be able to help them identify it.
        I think that the legislation we consider today can
    significantly improve the lives of victims of hate violence by
    providing Federal assistance, by providing grants and providing
    additional information on crimes motivated by gender and gender
    identity and crimes committed by juveniles.
        Many points have already been made. A couple of points that
    I wanted to touch on is this legislation--and the hate crime
    legislation around the country--protects all of us. It does not
    protect special groups. It protects everybody in this room.
        If we were to look at the anti-race hate crimes in the last
    year, 11.5 percent of the incidents reported to the police were
    incidents of anti-White hate crime. When we are talking about
    hate prosecutions, the prosecutors go forward and bring hate
    charges on crimes that are motivated by hate, not in speech,
    and as we look at the State cases, we see that is the vast,
    vast majority of cases.
        And one other thing, as an academic, I would say that the
    hate crimes reporting statute of 1990 provided information that
    would allow the academic community to work with law enforcement
    and work with prosecutors to give the law enforcement more
    tools to be able to answer these cases. We were able to develop
    a typology which allowed police officers to do better
    investigations and end up making batter arrests and getting
    better convictions.
        So what I would say is that one of the keys that we have
    not touched on yet is the role of local law enforcement. As the
    Chairman said, this bill is to support local law enforcement.
    It is not to move law enforcement out of the way. What I found
    through years of working with local law enforcement is they are
    the keys to understanding hate crimes. They are the keys to
    being able to deal with it, identify it and then develop a case
    that can result in prosecution.
        What we have learned from the 1990's is that the FBI has
    been a strong advocate of local law enforcement in helping to
    train officers in how they would identify and how they would
    investigate hate crimes. The FBI went around the country and
    did training after the 1990 act, and they have been still
    standing by to help.
        But they have been limited by the ability of local law
    enforcement to call on them and resources. This legislation
    will allow local law enforcement to be able to have the
    opportunity to reach to the FBI when they need it, to get the
    expertise to be able to conduct these investigations and to be
    able to then come forth with prosecutions about these crimes
    which really seriously do tear our society apart.
        I think one of the keys to understanding all of this is
    that we understand that these are crimes which are serious to
    our communities. As you have said in some of your opening
    statements, these crimes can tear a community apart.
        As we have spoken to victims around the country and we have
    talked to different groups, one of the things that we tend to
    hear over and over again is that victims feel much better if
    they are in a place where there is a statute that protects him.
    That is one of the most important things they say. Is there a
    statue? Is there something the police can do to protect us?
    This legislation will allow that across the country, to be able
    to have support, have resources and to be able to understand
    further the dynamics of hate crimes in the United States.
        Thank you very much.
        [The prepared statement of Mr. McDevitt follows:]
                      Prepared Statement of Jack McDevitt

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Nadler. Thank you.
        And I thank the witnesses.
        I will begin the questions by recognizing myself for 5
    minutes. My first two questions are to Mr. Lawrence.
        In his testimony, Mr. Lynch mentions the murders of Matthew
    Shepard and James Byrd as examples that Federal assistance is
    not needed. However, wasn't the Laramie Police Department
    forced to furlough five employees in order to fully investigate
    and prosecute the crime, and didn't Jasper, Texas, apply for
    and receive $284,000 in special Federal grants to enable it to
    do that?
        Don't these two examples actually show that Federal
    assistance is needed to provide a crucial backstop for State
    and local authorities?
        Mr. Lawrence. Absolutely, Mr. Chairman. In both cases,
    Federal authority was needed or Federal support was needed, and
    what actually happened in Jasper, Texas, where Federal funds
    were provided and where Federal support actually came because
    of the use of public highways, which, in fact, was only
    tangential in the reality of the case of James Byrd. It became
    essential because of the way in which the statute was written.
    The reality of the James Byrd murder case is it was a racially
    motivated murder. That is where the Federal interest came from.
    So I think that is exactly right.
        I would also add that in both cases where they were murder
    cases, one is tempted to say you do not need an additional
    penalty because of the existence of the death penalty. The fact
    is the vast majority of bias crime cases are not murder cases.
    They are assault or vandalism. With the enhanced punishment, it
    would make a great deal of difference.
        Mr. Nadler. Thank you.
        And also, in his testimony, Mr. Lynch discusses the Supreme
    Court ruling in Lopez as limiting Congress's ability to
    federalize criminal activity on the basis of affecting
    interstate commerce.
        Now there is a subsequent Supreme Court case, U.S. v.
    Morrison. Doesn't that case clarify Congress's authority in
    such matters and does this legislation meet the requirements
    for constitutionality as set forth in Morrison?
        Mr. Lawrence. I think it does. I think Morrison actually is
    a case in which the Supreme Court struck down a part of the
    statute and gave a blueprint to Congress as to how to go about
    doing these cases in the future and these statutes in the
    future and make clear that they wanted Congress to be more
    careful as to how it implicated the Commerce Clause authority.
        The exact piece of the Supreme Court ruling in Morrison was
    that a jurisdictional predicate was essential to uphold these
    statutes. That is precisely what this statute has. It requires
    a tight nexus between interstate commerce and the actual bias
    crime involved, and the prosecution must prove that and, as any
    other element of the case, must prove it beyond a reasonable
    doubt.
        Mr. Nadler. Thank you.
        Attorney General Shurtleff, one of the arguments we hear
    from opponents of this legislation is that it will interfere
    with the authority of State and local law enforcement. Your
    presence here today suggests that State authorities would
    welcome this legislation. You mentioned 26 attorneys general,
    which is a majority of the State attorneys general.
        Could you give an example of how this legislation will be
    beneficial for State and local law enforcement?
        Mr. Shurtleff. Mr. Chairman, thank you.
        After September 11 and before Utah had an enforceable hate
    crimes statute, a man bombed a local Pakistani restaurant named
    Curry in a Hurry. Because Utah did not have an enforceable law,
    we absolutely had to rely on the limited Federal Government
    jurisdiction in that case to be able to bring some punishment.
        Mr. Nadler. Since Utah now has such a law, why do you need
    a Federal law?
        Mr. Shurtleff. Well, in fact, we have a law. It is not
    based on categories. It is only based on an enhancement that
    the judge can give. It is not an automatic enhancement. So we
    prefer the ability to have very articulated categories.
        It is also the fact that it consistently says ``at the
    request of the State,'' working with the State or local
    authorities. We have some excellent relationships with the
    Federal Government when it comes to crimes that cross State
    borders--for example, Project Safe Neighborhood involving guns
    or Internet Crimes Against Children, Project Safe Childhood,
    and so forth.
        In this case, in these types of crimes, so often the target
    group goes beyond State borders. In those situations, we really
    need the Federal Government to step in and help us out.
        Mr. Nadler. Thank you.
        Some opponents claim that this legislation will interfere
    with first amendment rights of speech and association by
    requiring prosecutors to inquire into assailants' past
    associations to prosecute cases. Briefly, because I have one
    more question, can you speak to this issue?
        Mr. Shurtleff. Absolutely. In fact, those examples given by
    Mr. Dacus are really red herrings because none of those would
    be charged in this case because you have to have a specific
    felonious crime, a crime of violence, plus the perceived
    motivation by prejudice or bias.
        But in addition, it specifically states in the rules of
    evidence that prosecutors cannot use evidence of expression, of
    their associations. They may belong to hate groups, they may
    have actually written things regarding their hatred toward
    certain groups, but we have to be able to use those as exact
    evidence of the crime and the evidence specifically relates to
    the crime.
        So you would have to have a situation where the pastor, for
    example, in a meeting would say, ``Let's go burn down a mosque
    because Islam is the devil,'' and then lead the group down
    there to burn the mosque.
        Mr. Nadler. Okay. Thank you.
        Final question, Dean McDevitt: The legislation would add
    gender and gender identity to the categories of hate crime
    statistics collected by the FBI. Briefly, why would the
    addition of these categories be so crucial in your opinion?
        Mr. McDevitt. I think that one of the things that we can
    start to understand in this by starting to get the data for
    this is: What is a gender hate crime?
        I think that different States are struggling now with how
    to define it--as you have seen in different States, some of the
    limitations on how to define it are really setting the bar
    awfully high--and also gender identity crime. This will allow
    the FBI to accumulate information and pass it back to local law
    enforcement about what are the characteristics of these crimes
    so they can investigate them, so they can go forward and be
    able to prosecute them.
        Mr. Nadler. Thank you very much.
        My time is expired. I now recognize for 5 minutes the
    gentleman from Texas.
        Mr. Gohmert. Thank you, Mr. Chairman.
        First of all, Mr. Ritcheson, you certainly have the
    sympathy and the admiration of all of us here on this panel and
    I think the witnesses with you. What you went through is
    intolerable.
        As I understand it, the perpetrators were prosecuted under
    local law--is that correct--State crime law? Is that your
    understanding?
        Mr. Ritcheson. Yes, sir.
        Mr. Gohmert. And did they both get the life sentence?
        Mr. Ritcheson. One of them, David Tuck, received a life
    sentence, and Keith Tanner received 90 years.
        Mr. Gohmert. How many years?
        Mr. Ritcheson. Ninety years.
        Mr. Gohmert. Ninety years.
        Mr. Ritcheson. Yes, sir.
        Mr. Gohmert. And in Texas, anything over 60 years is
    computed as a maximum or a 60-year sentence.
        So the law we are passing today, as horrible as that was in
    your situation, this law really would not affect it. They
    already basically got, in effect, a maximum sentence under
    State law. Is that right?
        Mr. Ritcheson. Yes, sir.
        Mr. Gohmert. Okay.
        Dean Lawrence, you had mentioned the mental harm that
    obviously accrues to anyone who is a victim of a hate crime.
    Have you done any or have you seen any studies on the mental
    harm to victims of random, senseless acts of violence? Are you
    saying they are not affected nearly like somebody that is a
    victim of a hate crime?
        Mr. Lawrence. No, I would not say that they are not
    affected at all, certainly, and that is why there are severe
    penalties for those crimes. But I guess I would say two things.
        One is that studies that have been done and cited in my
    written testimony show that overwhelmingly victims of bias
    crimes do suffer higher levels of depression, of hypertension
    and of a sense of alienation from society. It is hard to do
    exact comparisons, because what would the exact same crime look
    like without bias motivation, but the studies that have been
    done, both in the workplace and in other studies, demonstrate
    that.
        The other thing, of course, is that this statute itself is
    not a penalty enhancement statute. It is about giving
    additional Federal authority----
        Mr. Gohmert. Well, you are aware it sets new penalties. It
    creates new hate crimes. Are you aware of that?
        Mr. Lawrence. Correct.
        Mr. Gohmert. Yes.
        Mr. Lawrence. But the point is that what this is really
    about is the articulation of a special category of crime, and
    although I certainly believe and have written that there should
    be----
        Mr. Gohmert. Well, basically, we are federalizing a State
    crime at this point. Certainly, it is federalizing Texas State
    crime, and I appreciate your perspective.
        Attorney General Shurtleff had indicated we need federal--
    and I have heard you say a couple of times this will only apply
    to felonious assaults or actions.
        You are aware of the language in this bill that makes it a
    crime for bodily injury--and I am not familiar with Utah laws--
    but in Texas, bodily injury is a simple assault, even just
    pushing somebody, even touching somebody offensively, where
    someone can claim even no matter, as the law says in Texas, how
    temporary the pain or discomfort might be. That is sufficient
    to be bodily injury. You are aware of that right?
        Mr. Shurtleff. Well, I am aware that there are actually two
    different types of crime described. The one is at the request
    of the State they can come in only in the case of violent
    felony plus----
        Mr. Gohmert. Well, I am asking you specifically about the
    offenses that are created here and the conduct that is
    addressed and that it involves either something involving a
    fire, a fire arm or something like that, but there is an aura
    between those, and the first one is for causing bodily injury.
    You have seen that, right?
        Mr. Shurtleff. I have seen that. I was trying to explain,
    Representative, that it is two-part. That part has to do with
    the specific evidence of crime being involved with interstate
    commerce and across State borders and so forth. Yes. In that
    case, it is limited in within those certain categories, but it
    also, in section 4, requires a violent felony.
        Mr. Gohmert. Well, but that does not address my point. You
    keep saying felonious conduct. In Utah, is a simple assault a
    felony?
        Mr. Shurtleff. No, it is not, but I am saying this proposed
    law does include both the felonious conduct and also different
    types of crimes for----
        Mr. Gohmert. Okay. So you referred to it as felonious
    because we are creating a new law that makes a simple assault a
    felony under Federal law. But, right now, as the law stands, it
    is not felonious conduct to simply push somebody or commit a
    simple assault. Isn't that correct?
        Mr. Shurtleff. It is, but as I am trying to point out to
    the representative, there two parts in this proposed law. What
    I refer to as the felonious conduct is one section. You are
    referring to another section. You are absolutely correct. In
    that section with regard to interstate commerce, it only
    requires battery which would not be a felony.
        Mr. Gohmert. Okay. Well, I appreciate you making the
    distinction that there are two parts because, earlier, you made
    the blanket statement that this will only apply to criminal
    felonious conduct, and you broke that up, but I am glad you
    clarified so it does not just apply to felonious conduct.
        Also, I would like to comment in my last 30 seconds. The
    Chairman had made the comment about my opening statement, and I
    have tremendous respect for the Chairman. I admire him greatly
    as an individual.
        You talk about the debate and conduct. We go after it
    pretty good with words in this body, but I know you would never
    harm me physically and I would never harm you physically, and
    that is a distinction that we make. So, hopefully, we will not
    end up committing crimes just by our debate.
        But I thank the Chairman.
        Mr. Nadler. I would point out the last caning on the floor
    was in 1859 and helped bring on the Civil War.
        Thank you very much.
        I will now recognize the distinguished gentleman from
    Michigan, the Chairman of the Committee.
        Mr. Conyers. Thank you, Mr. Chairman.
        Boy, am I relieved to find out that we will not go to
    violence in this Committee now that Mr. Gohmert has assured me
    of my safety.
        And I can mutually assure you of your own, Mr. Gohmert, as
    one who has supported and led this legislation for a decade.
        Let me start with Mr. Dacus, because I want you to know
    that this is a pretty friendly Committee you are coming before.
    There are different kinds of Committees, different levels of
    debate, but I just want you to be assured--and I want to know
    that you are--that unless there is a violent act involved in
    the act being debated, there is no hate crime involvement at
    all.
        And so that would mean, sir, that every one of your
    examples would not have any application to the bill that is
    under consideration.
        Mr. Dacus. May I respond?
        Mr. Conyers. Yes, of course.
        Mr. Dacus. Thank you. I appreciate you making that point.
        The truth of the matter is, in California, the first thing
    that was enacted was a hate crime bill based upon harm, and now
    built from that was the California Education Code section which
    was cited by Reinhardt, and specifically 220 directly applies
    in references to those violent hate crimes.
        Mr. Conyers. In other words, you are telling me then that
    there can be prosecutions that do not involve violent conduct?
        Mr. Dacus. In California, that is correct, and the point is
    that first we had the hate crimes involving violence, and then
    from there we have built these other legislative avenues.
        Mr. Conyers. Okay. Let's do this----
        Mr. Dacus. That is the road we have started down.
        Mr. Conyers. Can I send you some information about that?
    Because I see that this is going to take up more time than I
    wanted. I did not know you were aware of what I am saying, but
    we will all stay tuned.
        Now, ladies and gentlemen, the fact of the matter is that
    we have been federalizing State criminal conduct for a long
    time. I mean, this is not a new leap into criminal
    jurisprudence. And I do not know why my staff calculated this
    on the basis of Federal crimes enacted into law during
    Republican control of the Congress, because I am sure Democrats
    did it as well, but I count at least about 20 different Federal
    crimes which were already a crime in the State.
        So it seems to me that to come at this late date to discuss
    whether this is constitutional or not is a little too late. I
    am sure it is going to be tested in the courts, that is the
    American way, and we expect that it will be.
        This concept started in 1985--Barbara Canales started the
    introduction of this legislation, and it has evolved, I think,
    in a very important and significant way, and so I want all of
    us to realize that we are not doing anything really that new
    here. What we have done is refine and tailor in a very
    important way.
        Now, as the one person on the Committee and almost in the
    Congress that was here for the Voter Rights Act of 1965, this
    discussion is sort of amazing. We are always in a circular path
    here instead of trying to move forward. We come back to some of
    the seemingly lame excuses for why we should not go forward.
        The Chairman of this Subcommittee has indicated there are
    thousands of these acts still going on, and what we need to
    understand is that we are not taking jurisdiction away from
    States; we are only complementing them where it is necessary,
    and so it is in that spirit that I commend all of the witnesses
    for coming today to join in what I hope will be the final set
    of hearings on hate crime legislation in the Congress.
        Mr. Nadler. I thank the gentleman.
        I now recognize for 5 minutes the gentleman from North
    Carolina.
        Mr. Coble. I thank you, Mr. Chairman.
        As our distinguished Chairman from Michigan said earlier,
    one of the reasons for being here is to engage in dialogue and
    to express some disagreements if, in fact, there are any.
        I appreciate the witnesses being here today.
        I would like to know--and perhaps I cannot get it today--if
    the number of reported hate crimes has decreased since 1995. I
    think that is the first year that a hate crimes report was
    published. Furthermore, several States have enacted hate
    crimes, and I would be interested in knowing also what sort of
    impact those State enacted crimes have had on the number of
    reported hate crimes.
        The problem I have with hate crimes is I fear that for the
    most part they are duplicative. A crime is committed. It seems
    to me, in most cases, that would be addressed or there would be
    a remedy on the books already. So we will talk about that at
    another time.
        David, we thank you for being here, and I am pleased that
    your attackers were awarded extended sentences. They obviously
    deserved it, from what you tell us.
        Mr. Lynch, you commented about the relocation of the FBI
    resources for terrorism, and I think there is some merit to be
    said for that. Do you have any concerns with the definitions
    proposed by H.R. 1592? And, if so, share them with us.
        Mr. Lynch. It is not so much the particular nitty-gritty
    definitions, Mr. Chairman. I think, going back to your point
    about it being duplicative, these are federalizing crimes that
    are already on the State and local books, and once they are on
    the Federal books, then there will be pressure for Federal
    investigators and Federal prosecutors to start investigating
    those crimes, the stuff that is already being prosecuted at the
    local level. And that is necessarily a diversion from what I
    think should be the FBI's main focus, which is foreign threats,
    espionage, al-Qaeda and so forth.
        Mr. Coble. I thank you, Mr. Lynch.
        Mr. Dacus, what effect, if any, would result from criminal
    investigations that focused on an accused's political views,
    philosophy, prior statements, membership in organizations, once
    the motive for the crime is an element, A; and, B, what checks,
    if any, are there on Federal prosecutors seeking access to such
    information?
        Mr. Dacus. Well, to answer the first question, you
    basically have inquisitions of not only individual's faith and
    beliefs, but with regards to those he knows, his friends, his
    clergy, his family, and not just immediately, but those in the
    past, going back as far as the prosecution felt necessary. That
    is, in essence, what we would have as a religious inquisition
    or political inquisition, and I think that is abhorrent to the
    whole concept of civil rights and true civil liberties.
        As far as what you said with regard to what checks are in
    place, I like to contend that I am an expert to be able to
    answer that, but I am not. I can just simply say that,
    presently, there would generally tremendous discretion to
    inquire is needed so as to justify proving up the case, but I
    think there would be others who are more equipped perhaps, our
    former attorney general from California perhaps might be even
    better than that to answer that part of the question.
        But without question, it would open the door for
    inquisitions, and that is not an if. It is just a matter of
    when and who is going to have to face it, like the pastor faced
    that I mentioned earlier.
        Mr. Coble. Thank you, Mr. Dacus.
        Mr. Chairman, I see the red light is not yet illuminated,
    so I will yield back my time.
        Mr. Nadler. I appreciate that, despite the fact that the
    red light has not yet flashed. I thank the gentleman.
        With that, I will recognize for 5 minutes the gentlelady
    from California.
        Ms. Waters. Thank you very much, Mr. Chairman. I would like
    to thank you for holding this hearing.
        I would like to thank Mr. David Ritcheson for coming in
    sharing with us what you went through and how your life was
    endangered by a hate crime, and while the State to prosecute,
    there are many States that still are insulated and are not
    prosecuting.
        But I know that I am not going to be the law-and-order
    person on the Committee today. I am considered a liberal, a
    progressive, and I have colleagues on this Committee who are
    law and order who look for ways to get tough on crime and who
    use every opportunity to try and make sure that we catch
    criminals who not only commit crimes, but heinous crimes.
        I am also sitting here and reflecting on the history of
    this country, and I am thinking about Emmett Till who was
    murdered, the young man that went down during the summer from
    Chicago to Mississippi, and who was badly beaten and killed.
    When his body came back, it was on the front pages of all of
    the Black newspapers and magazines in the country. There was
    never any prosecution in that case.
        And I am thinking about the four little girls in Alabama,
    who were bombed at church and the fact that it was just last
    year that I think we finally brought someone to justice on
    that.
        But, of course, history is replete with cases of people of
    color that are harmed, killed, maimed, and still today in 2007.
    We hear about cases in small towns and cities and States where
    we do not think we are getting justice.
        So I know that all of our panelists here today would like
    to see everything possible done to apprehend and prosecute
    people who commit hate crimes, and I think that despite the
    fact that there has been some discussion about Federal
    jurisdiction, I think everybody at the table would say that you
    would support apprehending and bringing to the bar of justice
    anyone that would harm, kill or maim someone based on color or
    religion.
        Is that right? Do we have anybody that disagrees with that?
        Mr. Lynch?
        Mr. Lynch. Restate that, please.
        Ms. Waters. You talked a lot about Federal jurisdiction,
    and under 18 USC 245(c), only if a crime motivated by racial,
    ethnic or religious hatred is committed with the intent to
    interfere with the victim's participation in one or more of
    these activities, you would agree with that.
        I mean, you do not really object to the Federal
    jurisdiction that is in existing law now for hate crimes?
        Mr. Lynch. Well, I do think there are some problems with
    existing law. It depends upon----
        Ms. Waters. You think it goes too far?
        Mr. Lynch. It depends upon what section of the Constitution
    this Federal statute rests upon. Is this based upon the
    Commerce Clause? Is there some type of connection between a
    Federal prosecution here and commerce? I think that that is
    problematic under the Supreme Court's ruling in the Morrison
    case.
        Ms. Waters. So it is your belief that there should be no
    Federal jurisdiction whatsoever, it costs too much money, it
    takes up too much time of the FBI, et cetera, et cetera? Is
    that what you believe?
        Mr. Lynch. No. When you mentioned the Emmett Till case,
    there was actually a criminal prosecution involved in the
    murder of Emmett Till, but what you may recall, there was not a
    just result in that case. The State court proceedings were
    thoroughly corrupt in that murder prosecution, where you had
    basically a corrupt sheriff. I believe he testified on the
    behalf of the defendants in that case, and so the proceedings
    in the State court prosecution were thoroughly corrupt. I do
    think under section 5 of the 14th amendment, there is a basis
    for Federal prosecution against State officials acting under
    the color of law for violating the rights of individuals. So,
    in that respect, there is Federal jurisdiction.
        Ms. Waters. But you talk about Federal prosecution for
    those acting under the color of law. I am talking about the
    perpetrators of hate crimes. You believe that there should be
    no Federal jurisdiction for perpetrators, that that should be
    left to the States. Is that right?
        Mr. Lynch. Yes, I would have to----
        Ms. Waters. You think we go too far if we do everything
    possible to apprehend and prosecute, and to make sure that
    these insulated jurisdictions who do not carry out their duty
    and carry out the law, we should not spend too much money and
    time on that kind of thing. It is unconstitutional. Is that
    what you believe?
        Mr. Lynch. Well, you have mentioned insulated
    jurisdictions, and as I read the bill and the findings, there
    is no finding in this bill that State and local jurisdictions
    are being derelict in their duty and are failing to prosecute
    violent crime.
        Ms. Waters. Unanimous consent for 30 more seconds.
        Mr. Nadler. Without objection.
        Ms. Waters. Thank you very much.
        The findings may not be particularly identified as set
    forth in this legislation, but the Chairman of the Judiciary
    Committee, who just cited his tenure here in Congress, this
    African-American man, does not need to have anyone tell him
    that there are no findings that such things happen. He knows
    from experience.
        I yield back the balance of my time.
        Mr. Nadler. I thank the gentlelady.
        I now recognize for 5 minutes the distinguished gentleman
    from California.
        Mr. Lungren. Thank you very much, Mr. Chairman.
        I frankly have not made up my mind on this bill yet because
    of the number of different issues that are presented. On the,
    you know, basic question about hate crimes as to whether they
    are totally duplicative or whether they have a separate legal
    basis, I think the Supreme Court answered that when, on the one
    hand, they found unconstitutional one State hate crimes in the
    1990's and then later on upheld another.
        When I was attorney general of California, we declined to
    submit an amicus brief with respect to the one that was turned
    down because we did not think it was articulate enough in
    defining the difference between conduct and thought, and yet
    the second one, which paralleled the California statute, did
    pass constitutional muster.
        I think the question here is really what would be the
    effect of this law. I mean, that is what I am trying to figure
    out.
        I think it was 1991 in California. We had a total of about
    3,500--that is 3,500--murders in our State, yet we did not
    believe that most murders should be taken over by the Federal
    Government because of the numbers.
        I asked staff to get me the numbers of the hate crime
    incidents reported, and at least according to official
    documents, in 2005, there were 7,163 hate crimes reported, and
    in that same year, there were 1,017 violent incidents reported
    based on bias for sexual orientation, so approximately four
    incidents per million of population of violent incidents based
    on bias for sexual orientation versus the national crime rate
    of 492 incidents per 1 million, or 1.4 million overall.
        I do not mean to slight any crime whatsoever, I want it to
    be very clear, or any victim of any such crime, but the
    question is: Where are we going to array our assets? If we pass
    this bill, do we really believe that the FBI will have the
    opportunity to spend significantly more of its time on
    investigating these hate crime cases? If so, will that be to
    the exclusion of other things that we are attempting to get
    them to do?
        This Committee knows and the Crime Subcommittee knows that
    we are having a difficult time having the FBI transform itself
    into an elite counterterrorism operation right now. So it is
    really not a question for me as to whether there is an absolute
    constitutional predicate, although I do think there are some
    questions we have to answer.
        It is a question, Mr. Lawrence, of what do you think we
    will achieve by this. If this bill passes, is it your belief
    that a significant portion of the assets and personnel of the
    FBI will be directed to this and that that would be the
    substantial good that would be done by this bill?
        Mr. Lawrence. Absolutely not. I think the substantial good
    that would be done is that in certain instances, the FBI--and
    ultimately the U.S. attorney's offices--would be available as a
    significant and very important backup to State law enforcement.
        But this is not just hypothesizing. The bill itself
    specifically sets out very strict requirements for Federal
    involvement, requires a certification by the attorney general
    or the attorney general's designate, and that in itself is
    limited to specific circumstances in which the State asks to be
    involved, in which the State declines jurisdiction, or other
    very, very limited situations.
        One would expect that States that had strong bias crime
    laws, bias crime investigatory units and prosecutorial offices
    would use very few Federal resources on this and perhaps none.
    One would expect that States that do not would use more.
    Overall, one would expect not to have a major diverting of
    attention by the FBI. Quite the contrary, one would expect to
    have expertise by the FBI in very targeted areas in situations
    in which the States do not have the political, financial or
    expertise to bring to bear on these cases.
        Mr. Lungren. I thank the gentleman.
        Mr. Nadler. I will now recognize the distinguished Member
    from Georgia.
        Mr. Johnson. Thank you, Mr. Chairman.
        I would like to first say how much I appreciate the efforts
    of Chairman Conyers in doggedly pursuing this legislation
    throughout the years.
        This legislation removes unnecessary jurisdictional
    barriers to permit the U.S. Justice Department to prosecute
    violent acts motivated by bias and hate and complement existing
    Federal law by providing new authority for crimes where the
    victim is intentionally selected because of his or her gender,
    gender identity, sexual orientation or disability.
        Now Mr. Dacus is it--or Dacus?
        Mr. Dacus. Dacus.
        Mr. Johnson. Yes. It is interesting that you claim to decry
    attempts to silence diverse and differing viewpoints, including
    those who would condemn homosexuality or those who would
    condemn persons who practice Islam, but yet isn't it a fact
    that you were recently involved in representing a number of
    parents in California in filing administrative complaints with
    their school districts to opt their children out of lesson
    plans that taught information about Islam? Yes or no?
        Mr. Dacus. That taught information about Islam or had them
    engage in Islamic chants?
        Mr. Johnson. You tried to----
        Mr. Dacus. Yes, engaged in Islamic chants, and, yes, we
    defended the rights of parents to opt their children out of
    engaging in Islamic chants. That is correct in that regard.
        Mr. Johnson. And, sir, is it your----
        Mr. Dacus. Unabashedly.
        Mr. Johnson. Yes. And, sir, is it your opinion that the act
    under consideration here covers only violent crime, or does it
    cover hate speech or speech?
        Mr. Dacus. Well, the point I was trying to make is that----
        Mr. Johnson. No, no. I mean, answer my question. Now does
    it cover speech? Does it----
        Mr. Dacus. Oh, like the original law in California, it
    covers crime, and then California then extended that, as we
    know is expected to happen here.
        Mr. Johnson. Have you read H.R. 1592?
        Mr. Dacus. Yes, I have.
        Mr. Johnson. Okay. And I will turn your attention to
    section 249. Do you have it in front of you?
        Mr. Dacus. Yes, I do. Wait a second. Let me find it.
        Mr. Johnson. Section 249. It is on page 10. Are you with me
    now?
        Mr. Dacus. Yes.
        Mr. Johnson. It prohibits certain hate crimes, and it talks
    about what a hate crime is, and in general, at Subsection A(1),
    it says ``offenses involving actual or perceived race, color,
    religion or national origin,'' whoever, whether or not acting
    under color of law,'' willfully causes bodily injury to any
    person, correct?
        Mr. Dacus. That is correct.
        Mr. Johnson. So it does not say anything about just simply
    someone who speaks out against something that you may disagree
    with. It talks about violent crime, and this law would give the
    feds jurisdiction to cover situations such as the one that Mr.
    Ritcheson, seated beside you had to undergo where he was
    pummeled almost to death because of his status of being a
    Latino.
        So this legislation would simply cover those individuals
    who were attacked because of their race, creed, national
    origin, sexual orientation.
        Mr. Dacus. That is right. It would not----
        Mr. Johnson. It is not because of what they might say to
    someone. Do you understand that distinction?
        Mr. Dacus. Yes, I understand that distinction, but----
        Mr. Johnson. Well, let me ask you this question them. Could
    a person be prosecuted under this act for expressing hostility
    to a religious or racial group if the person has not committed
    a violent crime?
        Mr. Dacus. Actually, potentially yes. Potentially, yes. And
    let me explain why. As was alluded to earlier initially by----
        Mr. Johnson. We are talking about Federal law, not
    California law.
        Mr. Dacus. Okay. Yes. No, but here is the point. I thought
    you were asking me in the context of this bill.
        Mr. Johnson. Well, I am talking about this bill here. That
    is why we are here.
        Mr. Dacus. Yes. In the context of this bill, pursuant to
    the application of the existing Federal law, the section 18
    that was referenced by Mr. Gohmert, the fact is that if you
    have a scenario where you have, say, a pastor, a clergy or a
    rabbi who has engaged in----
        Mr. Johnson. Well, if----
        Mr. Dacus. Excuse me. I would like to answer the question.
    Do you want me to----
        Mr. Johnson. You are eating up my time.
        Mr. Dacus. I do not intend to.
        Mr. Johnson. If you are going to talk about what they might
    say versus what someone may do to them physically, then you are
    pretty much wasting my time.
        Mr. Dacus. No, no. Such individuals, though, are
    potentially carried over to the same kind of prosecution, the
    same punishments as the original perpetrator pursuant to
    section 18.
        Mr. Johnson. Well, again, I was asking about the section
    that I just pointed you to that talks about violent injury.
        I want to ask Mr. Lynch before my time----
        Mr. Nadler. The time of the gentleman has expired.
        Mr. Johnson. It has expired. All right. Thank you.
        Mr. Nadler. I now recognize the gentleman from Ohio for 5
    minutes.
        Mr. Chabot. Mr. Chairman, I apologize for not being present
    for this entire hearing because I had several other conflicts
    on my schedule, things to do at the same time, but it is
    obviously a very interesting issue that has been dealt with by
    this Congress over the years.
        We have had a number of people that have testified in the
    past, and rather than go through some of the same questions
    that have probably been asked, I would just address this to the
    panel in general.
        Could you explain why it ultimately matters, the motivation
    behind one person harming another? If the damage is done to
    that person and the person who has carried out that behavior is
    prosecuted as they should be--when one person harms another,
    they should be prosecuted, I believe, to the fullest extent of
    the laws--why does it matter whether the person did it because
    they dislike the person's religion or they dislike the person's
    skin color or their sexual orientation or whatever? If they
    harm the person, they have broken the law, and they ought to be
    prosecuted for that harm if they are guilty.
        Aren't we, to some degree, taking up the government's
    limited resources in trying to determine the motivation when we
    could be looking at the facts, determining what harm was done
    and how to best catch the person And then prosecute them
    accordingly? You know, why do we need to get into whether the
    person hated the person or not?
        If they harm to the person, they should be prosecuted, I
    believe, to the fullest extent of the law. And I know there are
    philosophical disagreements on that.
        But I would be happy to just go down the line. Since I only
    have 5 minutes, and I probably took about 2 minutes, if you
    could each one take about 30 seconds, that uses up all my time.
        And I want to be as fair or as possible to all the panel
    members. So we will start at this end, if that is okay.
        Mr. Shurtleff. Thank you, Representative.
        Yes, we for hundreds of years of criminal jurisprudence in
    this country have punished more severely those crimes which are
    most harmful to the community.
        When it comes to a hate crime, there is more than one
    victim. That is the key, is that when a crime is committed
    against a person because of who they are, the color of their
    skin, their race, their sexual orientation, the crime that we
    have to prove as prosecutors is against not just one
    individual, but the entire community.
        Therefore, the entire community is victimized, making it a
    more serious crime because there are more victims, therefore
    requiring a greater punishment. Our duties are to try as law
    enforcement officials to keep that individual who will do
    that--and we can prove by the facts--away from those law-
    abiding citizens for a greater period of time because of the
    crime they committed.
        Mr. Lynch. I think you put your finger on it. This has been
    covered a little bit by Congressman Gohmert, and some of the
    witnesses have made this point, but I think you are right. This
    is the crux of the matter.
        I think the supposition behind hate crimes is that violence
    against individuals that is rooted in hatred based upon
    jealousy, greed or lust or whatever and some of these hatreds,
    these violent offenses should be treated less severely than
    violence that is rooted in a hatred based upon race, racism or
    religious hatred or something like that. I do not think there
    should be a hierarchy of hatred written into our criminal code.
        And you are right on your second point, in that unless you
    have the easy case where you have a guy expressing, you know,
    his racist thoughts, as he is beating up somebody--that is the
    easy case--it is not going to involve more investigative or
    prosecutorial resources when you have witnesses hear that sort
    of thing.
        But if the perpetrator keeps his mouth shut, then
    investigative resources, if you want to prove a hate-crime
    motivation, resources then have to be devoted toward proving
    his motivation. And the question is whether that is a good
    basis for limited resources. Is it necessary or not?
        Mr. Chabot. I note that the yellow light is already on. So,
    if you could keep to those 30 seconds, we are still going to go
    over it.
        I would ask unanimous consent for 1 additional minute, Mr.
    Chairman, for the others.
        Mr. Nadler. Without objection.
        Mr. Chabot. Thank you.
        But try to stick to the 30 seconds.
        Mr. Lawrence. I will try not to use any of that extra
    minute, Mr. Chairman.
        It is a very important question, why focus on motivation,
    and the answer is pretty straightforward. You focus on
    motivation, as the criminal law often does, where motivation is
    directly related to harm.
        In the case of bias motivation, what both studies by legal
    academics and by my colleagues, like Professor McDevitt, have
    demonstrated, from a sociological point of view, psychological
    point of view, the harm is worse because of the motivation. I
    said a little bit earlier that Justice Holmes said even a dog
    knows the difference being tripped over and being kicked. The
    intentional crime and the crime because bias motivation is
    worse and more harmful.
        The other thing I will just say quickly is we are not
    breaking new ground here. The law looks at motivation in many
    situations. The Supreme Court has upheld the use of racial
    animus as a characteristic for capital punishment in Barkley
    against Florida. In all of the civil rights statutes, it is
    motivation that changes a legal act, firing somebody for no
    reason whatsoever, into an illegal act, firing them with racial
    animus.
        Mr. Ritcheson. I am not sure how to answer that question.
        Mr. Dacus. Okay. I would like to comment.
        First off, with regard to intent, intent is applied to the
    intent to actually commit the crime and do the crime, not the
    motivation. This is new territory with regards to this whole
    matter.
        I would also like to reference the whole concept that all
    victims--all victims--all the Davids out there, irrespective of
    their color, their gender, whatever it may be--all Davids--to
    sort of paraphrase what was actually mentioned by the Honorable
    Jackson Lee--are to be treated equal and to be protected.
        And I think that that is really the fundamentals that we
    are talking about, is equal treatment for the victims and equal
    justice for the victims. That is a civil rights issue that is
    inherent in this whole question that I think we are
    overlooking.
        Mr. McDevitt. And just quickly, I think we have always
    punished crimes differently by the harm that the crime imposes
    on the victim. We have always done that.
        And what we know about these kinds of hate crimes is that
    the victims are incredibly vulnerable. I know, as a
    criminologist, victims can adapt and can figure out ways to
    make themselves less vulnerable in the future, but if you are
    attacked because you are Black or you are Asian or you are
    Latino or somebody thinks you might be gay, you cannot change
    that, and that will always be with you, and you are always
    vulnerable as a part of that.
        Mr. Chabot. I thank the whole panel.
        Mr. Nadler. The Chair now recognizes for 5 minutes the
    gentlelady from Texas.
        Ms. Jackson Lee. Again, let me use this time to offer my
    deepest sympathy to Chairman Scott in the loss in his community
    of which none of us know the full facts.
        Let me also make the point that I think the witnesses will
    agree that the real hero in the room is David, and we thank him
    for his appearance here and the young leadership that he has
    shown.
        I want to debunk some of the comments that were made, and
    the tone I use is not the usual tone that I have when I am
    provoked, but this is a very serious set of circumstances, and
    I am gratified that Chairman Conyers now has the real
    opportunity to move such a vitally important legislative
    initiative.
        But I have sat in this room, I believe, now 12, going on 14
    years, and I recall some earlier, less civil discussions of the
    hate crimes when it was represented by, I am sure, well-
    intentioned members that there was a possibility that a drunken
    husband could come home and abused his wife and be charged with
    a hate crime. Albeit how serious that statement may have been
    made and the intent behind the, I considered it offensive and,
    frankly, uncivil.
        I also consider comments, albeit as sincere as they might
    be, to suggest that the attention of the FBI would be
    distracted because we are in a war on terrorism when everyone
    knows that the basic collapse of 9/11 was the issue of a
    sharing of intelligence. Certainly, there may have been some
    questions of resources, but I frankly am too patriotic, too
    much in love with America to ever believe that we do not have
    the resources to fight crime, discrimination, viciousness and
    hateful acts.
        I am disappointed that witnesses here are today would offer
    such frivolous excuses for suggesting that there are some
    reasons we should not pass this legislation.
        I want to make it very clear that there are three elements
    to this and one that clearly helped solve a case,
    unfortunately, that also came from Texas, and that is the James
    Barrett case, when it was clear that the State-Federal
    collaboration clearly helped in the investigation of that case.
    This case now puts in law this collaboration between the
    Federal and State, and it also works to, if you will, clearly
    take away this federally protected activity bar.
        To the attorney general, which you just, comment, and as
    you do that, we had Deputy Attorney General Eric Holder who
    discussed another case in Texas where a jury acquitted three
    White supremacists of Federal criminal civil rights charges
    arising from unprovoked assaults upon African-Americans,
    including one incident in which defendants knocked a man
    unconscious as he stood near a bus stop. Some of the jurors
    revealed after the trial that although the assaults were
    clearly motivated by a racial animus, they had a hard time with
    the intent to deprive the victims of the right to participate
    in any federally protected activity.
        Can you elaborate on what kind of bar that really poses
    sometimes for local prosecution?
        Mr. Shurtleff. Well, indeed, we have great cooperative
    relationships with our Federal counterparts, and usually it is
    a situation like this where there are such heinous crimes
    committed, for example, Internet Crimes Against Children, where
    there are Federal laws and there are State laws, and every time
    we work together on a task force, we sit down to staff the case
    and look at which law, which set of facts, which investigation
    is ultimately going to keep that person away from harming our
    children, and I think that is what we want to be able to do in
    this situation.
        Ms. Jackson Lee. If I might, when we manage to take away
    the bar of this federally protected activity language that
    confuses jurors, is that helpful to you?
        Mr. Shurtleff. Absolutely helpful to us.
        Ms. Jackson Lee. And I thank you for that.
        I know my time is short.
        Let me also make it clear that as I understand this
    particular legislation, it does not stop someone from
    practicing their faith.
        Professor Lawrence, my understanding is that this
    legislation would not prohibit the lawful expression of one's
    deeply held religious beliefs, people who want to say things
    like ``Homosexuality is sinful,'' ``Homosexuality is an
    abomination,'' things that I would not want to say and do not
    want to hear, but, however, in their religious faith, the
    homosexuals did not inherit the kingdom.
        Is this bill interfering with those rights and privileges?
        Mr. Lawrence. It certainly does not interfere with those
    rights to express those views, so long as they are not
    complicitous in criminal activity. The expression of those
    views would not be criminalized by this legislation.
        Ms. Jackson Lee. David, as I understand it, these were
    young people or near teenagers that might have been engaged in
    this violent crime that was against you.
        Mr. Ritcheson. Yes, ma'am.
        Ms. Jackson Lee. And you have heard after the fact that
    there were not only carvings of the name.
        May I have an additional 30 seconds?
        We understand that there were epithets thrown at you. You
    know that we have a bill under your name, David's Law, that
    would engage with grant money to reach out to young
    perpetrators of hate. Do you think that is valuable?
        Mr. Ritcheson. Yes, ma'am.
        Ms. Jackson Lee. And would that be helpful in high schools
    and middle schools around the country?
        Mr. Ritcheson. Yes, ma'am. That would be.
        Ms. Jackson Lee. And I hope that you will be willing to
    tell your story, now that you have come to tell us, around
    America and to help young people understand tolerance. Would
    you?
        Mr. Ritcheson. Yes, ma'am. Absolutely.
        Ms. Jackson Lee. With that, I yield back my time.
        Mr. Nadler. I thank gentlelady.
        I now recognize the gentlelady from Wisconsin.
        Ms. Baldwin. Thank you very much, Mr. Chairman.
        I hail from Wisconsin, and we have discussed already that
    Wisconsin has a hate crimes law that was tested in Wisconsin v.
    Mitchell, and as a resident of a State with a strong hate
    crimes law, I feel very strongly about the need to pass this at
    the Federal level. We hope that a hearing such as the can help
    us address misinformation that might exist about these
    legislative approaches, and typically we ask witnesses to
    respond to the testimony of other witnesses.
        Before I do that, I would like actually to ask about a
    response to one of the statements made by Members in the course
    of their opening statements. Because one of the statements
    described a slippery slope related to definitions in this
    legislation and underlying Federal legislation, specifically
    referencing the term ``sexual orientation.''
        And I would ask, Dean Moran and Professor McDevitt, if this
    is a concern that you share, that there is some sort of
    slippery slope with regard to those definitions.
        Mr. Lawrence. No, I do not think there is. I think it is
    always possible to march out a parade of horribles of what
    might happen in legislation, but I think we should be dealing
    with the reality of how law enforcement will proceed in the law
    like this.
        I would also add that particularly with the term ``sexual
    orientation'' this is not the first time we will see this in a
    Federal statute. Is that the first time we will see it in a
    Federal criminal civil rights statute? We have seen it in the
    Hate Crimes Reporting Act, and we have seen it in section 994
    for enhancement to penalties of Federal crimes.
        So there is jurisprudence based on this, and I do not have
    that concern.
        Mr. McDevitt. And I agree as well. I think that we can look
    to the States as a laboratory about how this has been played
    out, and it has played out across the country where we have not
    seen any kind of egregious problems associated with
    prosecutions at the State level. So I think we can look at that
    and think when we add Federal resources to that, we will be
    even less likely to make mistakes.
        Ms. Baldwin. When Mr. Lynch was testifying, he indicated or
    argued that we could potentially even decrease tolerance by
    encouraging the belief that law enforcement agencies would
    engage in favoritism because of Federal hate crimes law.
        I wonder, Professor McDevitt, if you could address this
    from the perspective that you announced earlier that really
    these measures cover all of us, and then I will turn to General
    Shurtleff about addressing this from the perspective of the top
    law enforcement officer for Utah.
        Mr. McDevitt. As I mentioned before, I think that the thing
    that makes these laws effective is that they are not special
    laws for social people, but they protect all of us. When you go
    and you train law enforcement or you speak to victims groups,
    you do any of that, you can say that whoever is attacked,
    because the motivation is biased, based on race, religion or
    other characteristics, they can be prosecuted under this
    statute, and I think that is hugely important and makes these
    statutes legitimate.
        Ms. Baldwin. General Shurtleff, do you have any concerns
    that passage of a Federal hate crimes law would actually
    decrease tolerance by spreading a belief that law enforcement
    would engage in favoritism?
        Mr. Shurtleff. No, Representative, I have not; in fact,
    quite to the contrary. You know, our responsibility in law
    enforcement is to fill that number one purpose in establishing
    justice, and justice means equality, equal access, equal
    treatment under the law. Our job is to protect everybody
    regardless of race, religion, ethnicity, sexual orientation to
    really make real those God-given rights of life, liberty and
    the pursuit of happiness.
        There are those in our communities who do not believe that
    everybody is equal and will commit a crime against somebody
    because of who they are. This will give law enforcement the
    ability to protect everyone equally, because we are all members
    of our race, we all have a religion, we all have a sexual
    orientation, we all have a gender. It will give us the chance
    in law enforcement to protect everybody equally across the
    board.
        Ms. Baldwin. There have been several references to the Hate
    Crime Statistics Act, and, of course, this bill, I believe, in
    section 8, amends that to add some new categories that we would
    charge our law enforcement with tracking.
        Professor McDevitt, could you review the protected classes
    that are currently covered by the Hate Crime Statistics Act?
    Let's just start there.
        Mr. McDevitt. It is race, religion, ethnicity, and we are
    going to be adding gender and gender identity to the categories
    that are there, also presently do Sexual Orientation Act, and I
    did say when the 1990 act passed, it was really important that
    the FBI was the one that went around the country and trained
    local law enforcement, but it was a huge drain on their
    resources. They did it in regional meetings, and local law
    enforcement benefited from it.
        Ms. Baldwin. How much time remains, Mr. Chairman?
        Mr. Nadler. Does the gentlelady request 1 additional
    minute?
        Ms. Baldwin. I would appreciate 1 additional minute.
        Mr. Nadler. Without objection.
        Ms. Baldwin. I cannot see the light from here.
        Mr. Nadler. Without objection.
        Ms. Baldwin. I think that the collection of these
    statistics is incredibly important in making the case,
    obviously, for broader protections. Currently, gender identity
    is not one of the protected class is included in that.
        Are there other sources of information that you have access
    to or knowledge about or expertise on with regard to the
    prevalence of hate crimes, bias crimes with regard to gender
    identity?
        Mr. McDevitt. We have some measures that come from advocacy
    groups and will talk about individuals in those groups having
    been victimized in the area of 30 to 40 percent of individuals
    who are transgender or have gender identification issues, but
    those data are all tainted by the fact they are collected by
    advocacy groups. If the FBI were to collect them, then we would
    be in a much better place of having more reliable data.
        Ms. Baldwin. Thank you.
        I yield back.
        Mr. Nadler. I thank the gentlelady.
        All questioning is concluded.
        I recognize the gentleman from Texas.
        Mr. Gohmert. Thank you, Mr. Chairman.
        Our Ranking Member for this Subcommittee, Randy Forbes, is
    at Virginia Tech with the Virginia delegation, and I would ask
    unanimous consent to submit his written statement in as part of
    the record of this hearing.
        Mr. Nadler. Without objection.
        [The prepared statement of Mr. Forbes follows:]
     Prepared Statement of the Honorable J. Randy Forbes, a Representative
          in Congress from the State of Virginia, and Ranking Member,
            Subcommittee on Crime, Terrorism, and Homeland Security

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        Ms. Jackson Lee. Mr. Chairman, I would like to ask
    unanimous consent to put into the record, I think, a very
    tributing statement on David. The title is ``Moving On and
    Trying to Shed the Victim Label'' dated April 17, 2007 in the
    Houston Chronicle.
        Mr. Nadler. Without objection.
        [The information referred to follows:]

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        Mr. Nadler. Without objection, all Members will have 5
    legislative days to submit to the Chair additional written
    questions for the witnesses, which we will forward and ask the
    witnesses to respond as promptly as they can so that your
    answers may be part of the record.
        Without objection, all Members will have 5 legislative days
    to submit any additional materials for inclusion in the record.
        I wish to thank the witnesses for their participation and
    their helping the House in this manner.
        I want to thank the Members.
        With that, the hearing is adjourned.
        [Whereupon, at 4:03 p.m., the Subcommittee was adjourned.]

                                A P P E N D I X

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                   Material Submitted for the Hearing Record

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       Prepared Statement of Christopher E. Anders, Legislative Counsel,
                       the American Civil Liberties Union
                                i. introduction
        The American Civil Liberties Union respectfully submits this
    statement to strongly urge the Subcommittee on Crime--and the full
    House of Representatives--to pass the Local Law Enforcement Hate Crimes
    Prevention Act.
        We are pleased that the sponsors of the legislation are once again
    including in the legislation an important provision that ensures that
    the bill will not chill constitutionally protected speech.
    Specifically, the bill will include a specific provision excluding
    evidence of speech that is unrelated to the crime. As a result, the
    ACLU is strongly urging support for this bill expanding the federal
    criminal civil rights statutes.
        The ACLU believes that the Congress can and should expand federal
    jurisdiction to prosecute criminal civil rights violations when state
    and local governments are unwilling or unable to prosecute. At the same
    time, we also believe that these prosecutions should not include
    evidence of mere abstract beliefs or mere membership in an organization
    from becoming a basis for such prosecutions. The hate crimes bill
    accomplishes these goals by providing a stronger federal response to
    criminal civil rights violations, but tempering it with clear
    protections for free speech.
         ii. the persistent problem of criminal civil rights violations
        The ACLU supports providing remedies against invidious
    discrimination and urges that discrimination by private persons be made
    illegal when it excludes persons from access to fundamental rights or
    from the opportunity to participate in the political or social life of
    the community. The serious problem of crime directed at members of
    society because of their race, color, religion, gender, national
    origin, sexual orientation, gender identity, or disability merits
    legislative action.
        Such action is particularly timely as a response to the rising tide
    of violence directed at people because of such characteristics. Those
    crimes convey a constitutionally unprotected threat against the
    peaceable enjoyment of public places to members of the targeted group.
        Pursuant to the Hate Crime Statistics Act, the Federal Bureau of
    Investigation annually collects and reports statistics on the number of
    bias-related criminal incidents reported by local and state law
    enforcement officials. For 2003, based on reports from state and local
    law enforcement agencies, the FBI reported 7,489 incidents covered by
    the Act. 3,844 of those incidents were related to race, 1,343 to
    religion, 1,239 to sexual orientation, 1,026 to ethnicity or national
    origin, 33 to disability, and four to multiple categories.
        Existing federal law does not provide any separate offense for
    violent acts based on race, color, national origin, or religion, unless
    the defendant intended to interfere with the victim's participation in
    certain enumerated activities. 18 U.S.C.A. Sec. 245(b)(2). During
    hearings in the Senate and House of Representatives, advocates for
    racial, ethnic, and religious minorities presented substantial evidence
    of the problems resulting from the inability of the federal government
    to prosecute crimes based on race, color, national origin, or religion
    without any tie to an enumerated activity. Those cases include violent
    crimes based on a protected class, which state or local officials
    either inadequately investigated or declined to prosecute.
        In addition, existing federal law does not provide any separate
    offense whatsoever for violent acts based on sexual orientation,
    gender, gender identity, or disability. The exclusion of sexual
    orientation, gender, gender identity, and disability from section 245
    of the criminal code can have bizarre results. For example, in an
    appeal by a person convicted of killing an African-American gay man,
    the defendant argued that ``the evidence established, if anything, that
    he beat [the victim] because he believed him to be a homosexual and not
    because he was black.'' United States v. Bledsoe, 728 F.2d 1094, 1098
    (8th Cir. 1984), cert. denied, 469 U.S. 838 (1984). Among the evidence
    that the court cited in affirming the conviction because of violence
    based on race, was testimony that the defendant killed the African-
    American gay victim, but allowed a white gay man to escape. Id. at
    1095, 1098. Striking or killing a person solely because of that
    person's sexual orientation would not have resulted in a conviction
    under that statute.
        In addition to the highly publicized accounts of the deaths of
    Matthew Shepard and Billy Jack Gaither, other reports of violence
    because of a person's sexual orientation or gender identity include:

              An account by the Human Rights Campaign of ``[a]
            lesbian security guard, 22, [who] was assigned to work a
            holiday shift with a guard from a temporary employment service.
            He propositioned her repeatedly. Finally, she told him she was
            a lesbian. Issuing anti-lesbian slurs, he raped her.''

              A report by Mark Weinress, during an American
            Psychological Association briefing on hate crimes, of his
            beating by two men who yelled ``we kill faggots'' and ``die
            faggots'' at the victim and his partner from the defendants'
            truck, chased the victims on foot while shouting ``death to
            faggots,'' and beat the victims with a billy club while
            responding ``we kill faggots'' when a bystander asked what the
            defendants were doing.

              A report by the National Gay and Lesbian Task Force
            of a letter from a person who wrote that she ``was gang-raped
            for being a lesbian. Four men beat me, spat on me, urinated on
            me, and raped me.. . . When I reported the incident to Fresno
            police, they were sympathetic until they learned I was
            homosexual. They closed their book, and said, `Well, you were
            asking for it.' ''

              An article in the Washington Post about five Marines
            who left the Marine Barracks on Capitol Hill to throw a tear
            gas canister into a nearby gay bar. Several persons were
            treated for nausea and other gas-related symptoms.

        The problem of crimes based on gender is also persistent. For
    example, two women cadets at the Citadel, a military school that had
    only recently opened its doors to female students, were singled out and
    ``hazed'' by male cadets who did not believe that women had a right to
    be at the school. Male cadets allegedly sprayed the two women with nail
    polish remover and then set their clothes ablaze, not once, but three
    times within a two month period. One male cadet also threatened one of
    the two women by saying that he would cut her ``heart out'' if he ever
    saw her alone off campus.
        Federal legislation addressing such criminal civil rights
    violations is necessary because state and local law enforcement
    officers are sometimes unwilling or unable to prosecute those crimes
    because of either inadequate resources or their own bias against the
    victim. The prospect of such failure to provide equal protection of the
    laws justifies federal jurisdiction.
        For example, state and local law enforcement officials have often
    been hostile to the needs of gay men and lesbians. The fear of state
    and local police--which many gay men and lesbians share with members of
    other minorities--is not unwarranted. For example, until recently, the
    Maryland state police department refused to employ gay men or lesbians
    as state police officers. In addition, only blocks from the Capitol a
    few years ago, a District of Columbia police lieutenant who headed the
    police unit that investigates extortion cases was arrested by the FBI
    for attempting to extort $10,000 from a man seen leaving a gay bar.
    Police officers referred to the practice as ``fairy shaking.'' The
    problem is widespread. In fact, the National Coalition of Anti-Violence
    Programs reports several hundred anti-gay incidents allegedly committed
    by state and local law enforcement officers annually. The federal
    government clearly has an enforcement role when state and local
    governments fail to provide equal protection of the laws.
          iii. the new bill provides strong protection of free speech
        The ACLU has a long record of support for stronger protection of
    both free speech and civil rights. Those positions are not
    inconsistent. In fact, vigilant protection of free speech rights
    historically has opened the doors to effective advocacy for expanded
    civil rights protections.
        Fourteen years ago, the ACLU submitted a brief to the Supreme Court
    urging the Court to uphold a Wisconsin hate crime sentencing
    enhancement statute as constitutional. However, the ACLU also asked the
    Court ``to set forth a clear set of rules governing the use of such
    statutes in the future.'' The ACLU warned the Court that ``if the state
    is not able to prove that a defendant's speech is linked to specific
    criminal behavior, the chances increase that the state's hate crime
    prosecution is politically inspired.'' The evidentiary provision in the
    House bill will help avoid that harm.
        The ACLU appreciates the sponsors' inclusion of the evidentiary
    provision that prevents the hate crimes legislation from having any
    potentially chilling effect on constitutionally protected speech. The
    evidentiary subsection in the bill provides that:

            Evidence of expression or association of the defendant may not
            be introduced as substantive evidence at trial, unless the
            evidence specifically relates to that offense. However, nothing
            in this section affects the rules of evidence governing the
            impeachment of a witness.

    This provision will reduce or eliminate the possibility that the
    federal government could obtain a criminal conviction on the basis of
    evidence of speech that had no role in the chain of events that led to
    any alleged violent act proscribed by the statute.
        This provision in the House bill almost exactly copies a paragraph
    in the Washington State hate crimes statute. Wash. Rev. Code
    Sec. 9A.36.080(4). This Washington State language is not new; the
    paragraph was added to the Washington State statute as part of an
    amendment in 1993. The ACLU has conferred with litigators involved in
    hate crimes prevention in Washington State. They report no complaints
    that the provision inappropriately impedes prosecutions.
        On its face, the hate crimes bill punishes only the conduct of
    intentionally selecting another person for violence because of that
    person's race, color, national origin, religion, gender, sexual
    orientation, gender identity, or disability. The prosecution must prove
    the conduct of intentional selection of the victim. Thus, the hate
    crimes bill, like the present principal criminal civil rights statute,
    18 U.S.C. Sec. 245 (``section 245''), punishes discrimination (an act),
    not bigotry (a belief).
        The federal government usually proves the intentional selection
    element of section 245 prosecutions by properly introducing ample
    evidence related to the chain of events. For example, in a section 245
    prosecution based on race, a federal court of appeals found that the
    prosecution met its burden of proving that the defendant attacked the
    victim because of his race by introducing admissions that the defendant
    stated that ``he had once killed a nigger queen,'' that he attacked the
    victim ``[b]ecause he was a black fag,'' and by introducing evidence
    that the defendant allowed a white gay man to escape further attack,
    but relentlessly pursued the African-American gay victim. Bledsoe, 728
    F.2d at 1098.
        Although the Justice Department has argued that it usually avoids
    attempting to introduce evidence proving nothing more than that a
    person holds racist or other bigoted views, it has at least
    occasionally introduced such evidence. In at least one decision, a
    federal court of appeals expressly found admissible such evidence that
    was wholly unrelated to the chain of events that resulted in the
    violent act. United States v. Dunnaway, 88 F.3d 617 (8th Cir. 1996).
    The court upheld the admissibility of a tattoo of a skinhead group on
    the inside lip of the defendant because ``[t]he crime in this [section
    245] case involved elements of racial hatred.'' Id. at 618. The tattoo
    was admissible even in the absence of any evidence in the decision
    linking the skinhead group to the violent act.
        The decision admitting that evidence of a tattoo confirmed our
    concerns expressed in the ACLU's brief filed with the Supreme Court in
    support of the Wisconsin hate crimes penalty enhancement statute. In
    asking for guidance from the Court on the applicability of such
    statutes, the ACLU stated its concern that evidence of speech should
    not be relevant unless ``the government proves that [the evidence] is
    directly related to the underlying crime and probative of the
    defendant's discriminatory intent.'' The ACLU brief urged that, ``[a]t
    a minimum, any speech or association that is not contemporaneous with
    the crime must be part of the chain of events that led to the crime.
    Generalized evidence concerning the defendant's racial views is not
    sufficient to meet this test.''
        The evidentiary provision in the House hate crimes bill is
    important because, without it, we could see more evidence of unrelated
    speech admitted in hate crime prosecutions. Many of the arguments made
    in favor of hate crime legislation today are very different than the
    arguments made in favor of enacting section 245 37 years ago. At that
    time, the focus was on giving the federal government jurisdiction to
    prosecute numerous murders of African-Americans, including civil rights
    workers, which had gone unpunished by state and local prosecutors. The
    intent was to have a federal backstop to state and local law
    enforcement.
        The problem today is that there is an increasing focus on
    ``combating hate,'' fighting ``hate groups,'' and identifying alleged
    perpetrators by their membership in such groups--even in the absence of
    any link between membership in the group and the violent act. Those
    arguments are very different from the arguments made in support of
    section 245 when it passed as an important part of the historic Civil
    Rights Act of 1968.
        The evidentiary provision removes the danger that--after years of
    debate focused on combating ``hate''--courts, litigants, and jurors
    applying a federal hate crime statute could be more likely to believe
    that speech-related evidence that is unrelated to the chain of events
    leading to a violent act is a proper basis for proving the intentional
    selection element of the offense. The provision will stop the
    temptation for prosecutors to focus on proving the selection element by
    showing ``guilt by association'' with groups whose bigoted views we may
    all find repugnant, but which may have had no role in committing the
    violent act. We should add that evidence of association could also just
    as easily focus on many groups representing the very persons that the
    hate crimes bill should protect.\1\ The evidentiary provision in the
    House bill precludes all such evidence from being used to prove the
    crime, unless it specifically related to the violent offense.
    ---------------------------------------------------------------------------
        \1\ For example, many of the principal First Amendment association
    decisions arose from challenges to governmental investigations of civil
    rights and civil liberties organizations. See, e.g., Gibson v. Florida
    Legislative Investigation Committee, 372 U.S. 539 (1962) (holding that
    the NAACP could refuse to disclose its membership list to a state
    legislature investigating alleged Communist infiltration of civil
    rights groups); Bates v. City of Little Rock, 361 U.S. 516 (1960)
    (reversing a conviction of NAACP officials who refused to comply with
    local ordinances requiring disclosure of membership lists); NAACP v.
    State of Alabama, 357 U.S. 449 (1958) (holding as unconstitutional a
    judgment of contempt and fine on the NAACP for failure to produce its
    membership lists); New Jersey Citizen Action v. Edison Township, 797
    F.2d 1250 (3rd Cir. 1986) (refusing to require the fingerprinting of
    door-to-door canvassers for a consumer rights group), cert. denied, sub
    nom. Piscataway v. New Jersey Citizen Action, 479 U.S. 1103 (1987);
    Familias Unidas v. Briscoe, 619 F.2d 391 (5th Cir. 1980) (refusing a
    request to compel the disclosure of the membership list of a public
    school reform group); Committee in Solidarity with the People of El
    Salvador v. Sessions, 705 F.Supp. 25 (D.D.C. 1989) (denying a request
    for preliminary injunction against FBI's dissemination of information
    collected on foreign policy group); Alliance to End Repression v. City
    of Chicago, 627 F.Supp. 1044 (1985) (police infiltrated and
    photographed activities of a civil liberties group and an anti-war
    group).
    ---------------------------------------------------------------------------
        The evidentiary provision in the House hate crimes bill is not
    overly expansive. The provision will bar only evidence that had no
    specific relationship to the underlying violent offense. It will have
    no effect on the admissibility of evidence of speech that bears a
    specific relationship to the underlying crime--or evidence used to
    impeach a witness. Thus, the proposal will not bar all expressions or
    associations of the accused. It is a prophylactic provision that is
    precisely tailored to protect against the chilling of constitutionally
    protected free speech.
                                 iv. conclusion
        For the foregoing reasons, the ACLU strongly urges the House to
    pass this properly drafted legislation to expand federal jurisdiction
    to address the continuing problem of an inadequate state and local
    response to criminal civil rights violations, but without affecting any
    protected speech. Specifically, the ACLU urges the House to take prompt
    action in passing the Local Law Enforcement Hate Crimes Prevention Act
    of 2007. The ACLU appreciates this opportunity to present our concerns.

                                   ATTACHMENT

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     Prepared Statement of Joe Solmonese, President, Human Rights Campaign

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                    Hate Crimes Coalition Letters of Support

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