[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

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34-756 PDF                    WASHINGTON : 2007 

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                       COMMITTEE ON THE JUDICIARY

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

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

        Subcommittee on Crime, Terrorism, and Homeland Security

              ROBERT C. (BOBBY) SCOTT, Virginia, Chairman

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

                      Bobby Vassar, Chief Counsel

                    Michael Volkov, Minority Counsel














































                            C O N T E N T S

                              ----------                              

                             APRIL 17, 2007

                                                                   Page

                                THE BILL

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

                           OPENING STATEMENTS

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

                               WITNESSES

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

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

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

                                APPENDIX

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

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

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

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


        LOCAL LAW ENFORCEMENT HATE CRIMES PREVENTION ACT OF 2007

                              ----------                              


                        TUESDAY, APRIL 17, 2007

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

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


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

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

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

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

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


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

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

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

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


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

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

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

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


        TESTIMONY OF DAVID RITCHESON, HARRIS COUNTY, TX

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

    Mr. Nadler. Mr. Dacus?

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

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

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    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

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    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

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               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.
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    \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).
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    The evidentiary provision in the House hate crimes bill is not 
overly expansive. The provision will bar only evidence that had no 
specific relationship to the underlying violent offense. It will have 
no effect on the admissibility of evidence of speech that bears a 
specific relationship to the underlying crime--or evidence used to 
impeach a witness. Thus, the proposal will not bar all expressions or 
associations of the accused. It is a prophylactic provision that is 
precisely tailored to protect against the chilling of constitutionally 
protected free speech.
                             iv. conclusion
    For the foregoing reasons, the ACLU strongly urges the House to 
pass this properly drafted legislation to expand federal jurisdiction 
to address the continuing problem of an inadequate state and local 
response to criminal civil rights violations, but without affecting any 
protected speech. Specifically, the ACLU urges the House to take prompt 
action in passing the Local Law Enforcement Hate Crimes Prevention Act 
of 2007. The ACLU appreciates this opportunity to present our concerns.

                               ATTACHMENT

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 Prepared Statement of Joe Solmonese, President, Human Rights Campaign

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                Hate Crimes Coalition Letters of Support

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