[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
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800;
DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC,
Washington, DC 20402-0001
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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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
----------
Material Submitted for the Hearing Record
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Prepared Statement of Joe Solmonese, President, Human Rights Campaign
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Hate Crimes Coalition Letters of Support
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]