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






  JENA 6 AND THE ROLE OF FEDERAL INTERVENTION IN HATE CRIMES AND RACE-
                   RELATED VIOLENCE IN PUBLIC SCHOOLS

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

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 16, 2007

                               __________

                           Serial No. 110-162

                               __________

         Printed for the use of the Committee on the Judiciary


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

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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
WILLIAM D. DELAHUNT, Massachusetts   CHRIS CANNON, Utah
ROBERT WEXLER, Florida               RIC KELLER, Florida
LINDA T. SANCHEZ, California         DARRELL ISSA, California
STEVE COHEN, Tennessee               MIKE PENCE, Indiana
HANK JOHNSON, Georgia                J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio                   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










































                            C O N T E N T S

                              ----------                              

                            OCTOBER 16, 2007

                                                                   Page

                           OPENING STATEMENTS

The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Chairman, Committee on the 
  Judiciary......................................................     1
The Honorable Lamar Smith, a Representative in Congress from the 
  State of Texas, and Ranking Member, Committee on the Judiciary.     2
The Honorable Robert C. ``Bobby'' Scott, a Representative in 
  Congress from the State of Virginia, and Member, Committee on 
  the Judiciary..................................................     3
The Honorable Sheila Jackson Lee, a Representative in Congress 
  from the State of Texas, and Member, Committee on the Judiciary     4
The Honorable Maxine Waters, a Representative in Congress from 
  the State of California, and Member, Committee on the Judiciary     5

                               WITNESSES

Mr. Donald Washington, U.S. Attorney for the Western District of 
  Louisiana, U.S. Department of Justice, accompanied by Lisa 
  Krigsten, Counsel to the Assistant Attorney General, Civil 
  Rights Division, U.S. Department of Justice, and George 
  Henderson, General Counsel, Community Relations Service, U.S. 
  Department of Justice
  Oral Testimony.................................................     7
  Prepared Statement.............................................    10
Mr. J. Richard Cohen, President and CEO, Southern Poverty Law 
  Center
  Oral Testimony.................................................    19
  Prepared Statement.............................................    21
Reverend Brian L. Moran, Pastor of the Jena Antioch Baptist 
  Church and President of the NAACP Jena Chapter
  Oral Testimony.................................................    24
  Prepared Statement.............................................    25
Charles J. Ogletree, Jr., Director, The Charles Hamilton Houston 
  Institute for Race and Justice, Harvard Law School
  Oral Testimony.................................................    26
  Prepared Statement.............................................    28
Reverend Al Sharpton, President, National Action Network
  Oral Testimony.................................................    40
  Prepared Statement.............................................    41

               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Sheila Jackson Lee, a 
  Representative in Congress from the State of Texas, and Member, 
  Committee on the Judiciary.....................................    85
Prepared Statement of the Honorable Steve Cohen, a Representative 
  in Congress from the State of Tennessee, and Member, Committee 
  on the Judiciary...............................................    89
Prepared Statement of the Honorable Betty Sutton, a 
  Representative in Congress from the State of Ohio, and Member, 
  Committee on the Judiciary.....................................    89
Articles submitted by the Honorable Sheila Jackson Lee, a 
  Representative in Congress from the State of Texas, and Member, 
  Committee on the Judiciary.....................................    91
Material submitted by Charles J. Ogletree, Jr., Director, The 
  Charles Hamilton Houston Institute for Race and Justice, 
  Harvard Law School.............................................    98
Prepared Statement of the Anti-Defamation League.................   137
Post-Hearing Questions submitted by the Honorable Lamar Smith, a 
  Representative in Congress from the State of Texas, and Ranking 
  Member, Committee on the Judiciary.............................   154

 
  JENA 6 AND THE ROLE OF FEDERAL INTERVENTION IN HATE CRIMES AND RACE-
                   RELATED VIOLENCE IN PUBLIC SCHOOLS

                              ----------                              


                       TUESDAY, OCTOBER 16, 2007

                          House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Committee met, pursuant to notice, at 9:53 a.m., in 
room 2141, Rayburn House Office Building, the Honorable John 
Conyers, Jr. (Chairman of the Committee) presiding.
    Present: Representatives Conyers, Berman, Nadler, Scott, 
Watt, Jackson Lee, Waters, Sanchez, Cohen, Johnson, Sutton, 
Baldwin, Weiner, Schiff, Wasserman Schultz, Ellison, Smith, 
Sensenbrenner, Coble, Goodlatte, Lungren, Issa, King and 
Jordan.
    Staff Present: Lillian German, Majority Deputy Oversight 
Counsel; Kanya Bennett, Majority Counsel; Paul Taylor, Minority 
Counsel; and Renata Strause, Majority Staff Assistant.
    Mr. Conyers. This is very disturbing because none of the 
mikes are working.
    This is an historic hearing in which the microphones are 
working at the House Judiciary Committee. Good morning, again, 
everyone. This is an important hearing, in my judgment, one of 
the most important that I've had the honor of chairing, because 
what this is about, is about democracy now and how do we 
improve it.
    We thank, first of all, all the Members that are able to 
join the hearing on the Committee. And then we thank the 
important and distinguished witnesses that we have before us. 
And we also thank everyone here who is attending the hearings 
in person as our guests.
    The Jena 6 and the role of the Federal intervention in hate 
crimes in race-related violence in public schools is a very 
timely and important matter. I thank all of you who have come 
from various parts of the country to help discuss and 
illuminate this critical issue in terms of how we can resolve 
and solve it. Today's hearing addresses a question that has 
unfortunately been historically a stain on our Nation's history 
of race relations, namely racial violence and hate crimes.
    Also disturbing is the likelihood that what happened in 
Jena, Louisiana, not might have garnered any public awareness 
and would not have inspired one of the largest civil rights 
protests in recent memory were it not for the activity of so 
many citizens and even persons in the media who brought this to 
public, national and international consideration.
    Clearly, in Jena, there were numerous missed opportunities 
to address some of these incidents in a fair manner. It could 
have been treated as a disciplinary problem to be addressed by 
the school principal, as to all the students involved of all 
races, or in a more effective and efficient and fair manner.
    As we all know, it is illegal under the guarantees of our 
Constitution and our laws to have one standard of justice for 
White citizens and another harsher one for African American 
citizens. And so I met with the Department of Justice officials 
about the matter, and to their credit, they are eager to 
examine these problems presented in the case and committed to 
sharing with this Committee their findings concerning other 
incidents.
    Racial discrimination in the criminal justice system is not 
unique to any one place, but is found in cities and towns, 
north and south, throughout our Nation. Our Committee, for 
example, is examining similar incidents involving the 
prosecution of African American juveniles in Georgia, Texas and 
California.
    And on that note, I point out that some school leaders at 
Jena High School did attempt to treat this matter with equity 
and justice; they were overruled. There are countless justice-
minded individuals in Jena and throughout this country who are 
disturbed about this, and I quote Dr. Martin Luther King, Jr., 
a great influence in my political development who wrote, 
``Injustice anywhere is a threat to justice everywhere.''
    And so we come to this hearing inquiring as to how we can 
correct this situation in the Nation, and I'm looking forward 
to this discussion. And I want to particularly thank the 
Members of this Committee, but especially Lamar Smith, the 
Ranking Member from Texas with whom we have worked continually 
in this matter. And it's not like this is the end of the line 
or anything. This is--the development of democracy is a 
continuing activity; it never stops. There will always be 
problems.
    The question in my mind today is whether from the 
particular experience and incident that brings us here, we can 
move forward, that we can build on it. And it's in that 
confidence that I believe that the answer is absolutely yes, 
that we're all invited to gather here today.
    And so I'd now like to recognize the Ranking Member of 
Judiciary Committee, Lamar Smith.
    Mr. Smith. Thank you, Mr. Chairman, and thank you for those 
always gracious and always generous words.
    Jena, Louisiana has suffered through a tragic series of 
racial incidents and subsequent racial strife. I sincerely hope 
this hearing will focus on productive solutions.
    And in that regard, Mr. Chairman, let me say that in 
reading the testimony of our witnesses today, I was gratified 
to see so many suggestions for how we might reach those healing 
solutions.
    The title of this hearing uses the term hate crimes, but 
the proposed Federal hate crimes legislation would only 
criminalize those incidents that are accompanied by acts of 
violence. If current laws are insufficient to cover certain 
crimes, then we need to consider changing them.
    Mr. Chairman, more than anything, though, what we need is 
an effort to reduce racial tension and discrimination; what we 
do not need is stoking racial resentment. Race under the 
criminal law cannot be allowed to act like the laws of 
magnetism, inevitably pulling society's compass to point one 
way or another based on the color of one's skin. If justice is 
blind, she must be color blind as well.
    Mr. Chairman, this is an historic hearing today as you've 
already said, and I think much good can come out of it. And I 
have great faith in our witnesses today, not only to testify as 
to solutions they think are appropriate, but also to take steps 
today to begin that healing process as we all work together 
toward that goal.
    And with that, Mr. Chairman, I yield back.
    Mr. Conyers. I thank the gentleman very much, and I'd like 
now to turn to the Chairman of the Subcommittee on Crime, Bobby 
Scott of Virginia, and recognize him.
    Mr. Scott. Thank you. Thank you, Mr. Chairman, thank you 
for holding today's important hearing. I'm sure we're all 
familiar with the alleged facts, the Black students at Jena 
High School asked to sit under a tree that was understood by 
everyone, including school administrators, to be for White 
students only. Three White students hung nooses from the tree 
and were ultimately punished with a brief suspension. Fights 
subsequently occurred between Blacks and Whites, but only Black 
students have been charged with serious crimes.
    The facts in these cases will ultimately be determined in 
court. But many of the allegations have not been credibly 
contradicted. If they are true, I'd like the Department of 
Justice to comment on the availability of Sections 1983 and 
1985 as possible remedies for the injustices. Unfortunately, 
whatever the facts of this case may be, we do know that this 
cycle, the incarceration of African American males, is 
something that we see over and over again in this country.
    As unfortunate as the Jena 6 case may be, this is just an 
example of the misfortune that African American males are 
experiencing in the criminal justice system. Marcus Dixon in 
Georgia, an 18-year-old African American male had consensual 
sex with a 15-year-old, was convicted of statutory rape and 
aggravated child molestation, served 14 months of a 10-year 
sentence before the Georgia Supreme Court threw out his 
conviction. Genarlow Wilson, a 17-year-old African American 
male was convicted and sentenced to 10 years for having 
consensual sex with a 15-year-old. Wilson is now 21, still in 
prison and waiting for the Georgia Supreme Court to make a 
decision in this case. Cases such as these are unfortunate, but 
I personally do not know of any case in which a nonminority 
child was sentenced to a long prison term for engaging in 
consensual sex with a peer.
    African American families live with grim realities facing 
their children at the present rate. One-third of African 
American males born today will end up in prison. African 
American males are incarcerated at nearly 6 times the rate of 
Whites, and there are racial disparities at every stage of the 
criminal justice system, especially the juvenile justice 
system, creating what the Children's Defense Fund called the 
cradle-to-prison pipeline for African American males.
    We have to ask the Department of Justice what can be done 
from a Federal perspective to address local practices which 
perpetuate the cradle-to-prison pipeline and ask why programs 
which have been proven to reduce crime and are cost-effective 
are not put into practice. We need to be assured that the 
Department of Justice is working to close the disparities 
between African Americans and Whites in our criminal justice 
system. And we also need comments from the Department on 
several pending anti-gang bills and the effect these bills may 
have on racial disparity. It is important for the Department to 
prove to future generations that the term justice for all is 
not simple rhetoric.
    I would like to thank our witnesses for being with us today 
and look forward to their testimony. I thank you, Mr. Chairman, 
and I yield back.
    Mr. Conyers. Thank you, Chairman Scott.
    By previous arrangement and agreement with the Ranking 
Member--two of our Members of this Committee have been to Jena, 
and I now recognize Sheila Jackson Lee of Texas for her 
comments.
    Ms. Jackson Lee. Mr. Chairman, first of all let me 
acknowledge my appreciation for the Judiciary Committee and 
your chairmanship. And let me as well acknowledge the 
Congressional Black Caucus, Chairwoman Kilpatrick and, of 
course, the main Member of Congress, or the Member of Congress 
from Louisiana, which I know they will be acknowledged.
    All of us as parents have aspirations and dreams for our 
children. And I might imagine that the Jena, Louisiana, 
students had parents, grandparents who loved them and had the 
same dreams. We're reminded of the history of the civil rights 
movement, at least from the '50's and '60's, and I would listen 
to older African Americans who took great pain in thanking the 
Federal Government for being their refuge. As Martin King 
languished in jail, President John F. Kennedy called him; 
whatever the politics of it, he called. As the Little Rock 9 
was frustrated, President Eisenhower responded.
    The tragedy of this case is that it called out for Federal 
intervention and the protection of children whose parents had 
enormous hopes and dreams. One young man was on his way to 
achieving graduation and then going on to college with football 
scholarships.
    I hold in my hand the chronicling of the series of events. 
The question becomes, when community, when civil rights leaders 
like Reverend Al Sharpton, Reverend Jesse Jackson, Martin 
Luther King, III, begged for Federal intervention, where was 
it? When hanging nooses became a major incident, where was the 
Federal Government? Where was the question being asked 
regarding civil rights?
    We do have a hate crimes initiative, not initiative but 
law, in Louisiana. That could be what you hid behind, because 
hanging nooses is not listed, obviously a weak law. Burning 
crosses obviously represented intimidation, so do hanging 
nooses. And so my questions today will be focused pointedly 
about the failure of this government to protect.
    Let me thank Michael Baisden, Tom Joyner, Steve Harvey, and 
Joe Madison for their work. Let me thank Louis G. Scott, Carol 
Powell Lexing for their work, struggling in the frustration of 
the inertia of this failed Civil Rights Division of the Federal 
Government of the United States. Shame on you. Because I 
believe that we have always looked to the Federal Government 
for the refuge and saving of those who have been discriminated 
against. And this time, and times through the past couple of 
years, there have been no response. I look forward to your 
responses, and certainly I look forward to solutions to save 
Mychal Bell and the Jena 6. I thank you, and I yield back.
    Mr. Conyers. Thank you so much. I'd like now to turn to the 
gentlelady from California and long-serving Member of this 
Committee, Maxine Waters.
    Ms. Waters. Thank you very much, Mr. Chairman. Let me first 
thank you for holding this hearing. It is unusual that we can 
get hearings calendared as quickly as this was done, and we 
were only able do this because you are the Chair of this 
Committee. And if we had to have a hearing at this time about 
this issue, there could be no better person than you, whose 
life has been dedicated to civil rights in this country, so I 
am very pleased that you are at the helm and you are leading 
this hearing today.
    Yes, Mr. Chairman, I did travel to Jena, and I traveled to 
Jena because this particular Jena 6 case triggered in me a sign 
of danger. I had the same feeling when this became known, what 
was going on there, that I had when we experienced the Rodney 
King beating in Los Angeles; the same feeling when we watched 
the people outside of the Convention Center in New Orleans 
after Katrina; the same feeling as we witnessed what happened 
in the Town of Tulia, Texas, when the whole town practically 
was indicted on false charges.
    There are certain cases that you know must be dealt with 
because if you do not deal with them, not only is great harm 
going to come to the individuals involved, but a message is 
being sent that this is what can happen if the public policy 
makers, the civil rights leaders and others are not paying 
attention. If you don't move at the particular time that these 
cases raise their ugly heads, then what you're going to see is 
a proliferation, because prosecutors and DAs who abuse their 
power will think that they can get away with doing that and 
nothing will happen.
    And so I went to Jena to join with all of the thousands, 
maybe 50,000 other folks who went there, to send a message that 
we are here, that something wrong has happened here; we are not 
going to allow it to continue without addressing it. And so 
today is part of the response to that issue.
    I am concerned, Mr. Chairman, about several things related 
to this case. Number 1, what is the responsibility of the 
school and the school administrators in handling racial 
incidents, not only in the south but anywhere in this country? 
I am concerned about the equal punishment argument. I am 
concerned about why it appears in this case young Black men 
were treated more harshly than the Whites. I am concerned about 
why many cases that occur in the schools are now ending up in 
the criminal justice system, this is not the only one that we 
are experiencing. More and more we are hearing about 
kindergarten children in handcuffs being taken to jail. We are 
hearing about teenagers being taken out of school and taken 
into jail, and we really do have to figure out the 
responsibility of the school system and why the criminal 
justice system is getting involved.
    We also have to be concerned about the unbridled power of 
DAs and prosecutors. And in this case, we must very well be 
concerned about DA Reed Walters when he addressed the Jena High 
School students in an assembly last fall and the reported 
statement that--that if the protests at the school do not stop, 
with the stroke of my pen, I can make your lives disappear. And 
he almost did that. And those lives of those six would have 
disappeared had the Nation not gotten involved.
    I am concerned about towns where you have total all White 
power, where everybody in the town in a power position is 
White. And you have the young Black folks, young Black males in 
particular, who are going up against district attorneys, the 
juries, all White without any Blacks being involved. And I am 
concerned about the admission of hate crimes, and now not only 
the nooses that were hung over the tree on the high school 
campus, but now nooses that are showing up all over the country 
in some kind of effort to send a message. We have a response 
from the U.S. Department of Justice that we have contacted, and 
they said they are investigating causes now in Maryland, New 
York, North Carolina, Pennsylvania and other places that we are 
hearing about. So I suspect----
    Mr. Conyers. Okay.
    Ms. Waters [continuing]. That despite the fact that we 
thought we had addressed the civil rights issues, we have to 
start all over again, Mr. Chairman, and I appreciate your 
leadership. I yield back.
    Mr. Conyers. I thank you very much. And I know other 
Members would like to make opening statements, but we're going 
to incorporate them into the record.
    I wanted to make it clear to everyone that the prosecutor 
of La Salle Parish, Louisiana, Mr. Reed Walters, was invited, 
but he declined to be present, and I wanted the record to note 
that.
    And one the very important goals of the Committee is to 
determine what is the current state of the law both in 
Louisiana and in the Federal Government. Amazingly enough, this 
is not a simple elementary consideration of existing law; it 
gives us a large responsibility to determine what the law is. 
And then, of course, what always follows up after you establish 
what the law is, is how is it being enforced? And so it's in 
that spirit that we begin today.
    And our first witness--in a way the first two witnesses--is 
the counsel to the Assistant Attorney General for Civil Rights 
of the United States Department of Justice, Ms. Lisa Krigsten, 
a former prosecutor, a former trial attorney in the criminal 
section of the Civil Rights Division.
    And we welcome you Ms. Krigsten.
    Our second witness is the United States Attorney for the 
Western District of Louisiana, Donald Washington, who has 
served there for 7 years. In addition to his significant 
experience as a practicing attorney, he is a former commission 
officer in the United States Army.
    And we welcome you, Mr. Washington.
    We've met before in preparation for this day. And we're 
going to include your statement and everybody else's in the 
record. And I understand that you and Ms. Krigsten have a 
single statement that you will bring forward, but she will be 
available for questions.
    Welcome and please begin.

 TESTIMONY OF DONALD WASHINGTON, U.S. ATTORNEY FOR THE WESTERN 
DISTRICT OF LOUISIANA, U.S. DEPARTMENT OF JUSTICE, ACCOMPANIED 
 BY LISA KRIGSTEN, COUNSEL TO THE ASSISTANT ATTORNEY GENERAL, 
 CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE, AND GEORGE 
 HENDERSON, GENERAL COUNSEL, COMMUNITY RELATIONS SERVICE, U.S. 
                     DEPARTMENT OF JUSTICE

    Mr. Washington. Thank you. Thank you, Mr. Chairman. Mr. 
Chairman, Mr. Ranking Member and Members of the Committee, 
thank you for this opportunity to describe the Justice 
Department's efforts in addressing recent events in Jena, 
Louisiana. I am joined today by Ms. Lisa Krigsten, a prosecutor 
from the Civil Rights Division, who is currently serving as 
counsel to the Assistant Attorney General in the Civil Rights 
Division.
    We also have with us today Mr. George Henderson, who is 
behind me here, who is serving as general counsel of the 
Department of Justice's Community Relations Service. Mr. 
Henderson is here to answer any questions that you might have 
about the Community Relations Service.
    Like many Members of this Committee, the Department is very 
concerned about the recent racial tension in Jena. The 
Department has been using and will continue to use all tools at 
our disposal to attempt to ease racial tensions, to ensure 
students can attend school free from a racially hostile 
environment and to address violations of Federal criminal law 
consistent with the principles of Federal prosecution.
    This past Friday, I traveled to Jena, Louisiana, along with 
Ondray Harris, the acting director of the Community Relations 
Service, and Ms. Rena Comisac, the current acting Assistant 
Attorney General for the Civil Rights Division. We met there 
with several community and religious leaders, including 
Reverend Brian Moran, who is on our panel today. He is a pastor 
of the Jena Antioch Baptist Church and president of the local 
NAACP chapter in Jena. We had a thoughtful and productive 
dialogue, and we listened to their concerns raised by the 
recent events in their city.
    The community and church leaders described the tensions 
that they were experiencing, and we described the efforts that 
the Department of Justice is taking to ease those tensions and 
to ensure that students can attend school free from a racially 
hostile environment. We also sought to assure the community 
leaders that the Department is fully, fully engaged in 
examining the allegations and in addressing their concerns.
    Prior to our meetings on Friday, I had met with many of 
these community leaders at a public forum at which I spoke 
earlier this summer, alongside representatives from the Federal 
Bureau of Investigations and the Community Relations Service. 
During that forum, we attempted to ease tensions in the 
community by answering questions about the role of the 
Department in responding to the situation in Jena.
    I want to assure this Committee that the Department of 
Justice and its many components are actively engaged and 
responding to the situation in Jena. For example, the 
Department's Community Relations Service has devoted 
significant resources and time to restoring community stability 
in Jena.
    As a separate agency of the Department of Justice 
established by the Civil Rights Act of 1964, the function of 
CRS is to address community conflicts arising from issues of 
race, color or national origin.
    Much of the community has accepted and utilized CRS's 
services in the past year. CRS's expertise in conciliation and 
mediation has allowed the agency to address community wide 
tensions. The work of CRS is a critical piece of leadership 
that the Department of Justice will continue to provide to the 
community. The Jena community itself has expended a great deal 
of energy in coming together to develop ways to mend the wounds 
of the past. Toward this same goal, the Community Relations 
Service will continue to provide services as long as necessary 
and as requested by the Jena community and the surrounding 
region.
    In addition to the work of CRS, the Civil Rights Division's 
Educational Opportunity Section has been actively engaged in 
addressing concerns regarding racial tension in the La Salle 
Parish school district, including Jena High School. The school 
district currently is under a Federal desegregation order, 
department attorneys have interviewed officials at the high 
school, have reviewed the discipline information for the school 
district and have initiated the comprehensive review of the La 
Salle school district with respect to its desegregation 
obligations.
    Moreover, the Civil Rights Division Criminal Section is 
aggressively investigating numerous allegations of racially 
motivated criminal activity related to Jena. Shortly after the 
September 20 civil rights march, the FBI, the Civil Rights 
Division and the United States Attorney's Office opened 
investigations into allegations that threats have been directed 
at individuals involved in the Jena 6 case along with their 
families. If those threats continue--pardon me, if those 
threats constitute prosecutable violations of Federal criminal 
law, the department will take appropriate action.
    A hanging noose is a powerful symbol of hate and racially 
motivated violence, and it can in many circumstances constitute 
the basis for a prosecution under Federal criminal civil rights 
laws, including the hate crime statute. The department has 
opened investigations into reports of noose hanging incidents 
in Louisiana, Maryland, New York, North Carolina, Pennsylvania 
and elsewhere.
    Public concerns have been expressed about the situation in 
Jena stemming from a number of different incidents, including a 
noose hanging at the local high school last year. The FBI 
investigated the matter in September 2006, and my office, along 
with the Criminal Section of the Civil Rights Division, 
reviewed the FBI's reports to determine whether Federal 
criminal charges were appropriate.
    Although the conduct is deeply disturbing and offensive, we 
decline to pursue charges after learning that the nooses had 
been hung by juveniles; by juveniles who had been promptly 
sanctioned by the school. The school superintendent recently 
announced publicly that the punishment of the responsible 
students included a 9-day suspension, during which time they 
attended an alternative school, an additional 2 weeks of in-
school suspension, several Saturday detentions in order to 
attend a discipline court and a referral to a family counseling 
program.
    The decision to decline the case was in accordance with 
long-standing policy and principles of Federal prosecution of 
juveniles. As a general matter, Federal juvenile prosecutions 
which are referred to as delinquency proceedings are pursued 
very infrequently and only when the Attorney General certifies 
that certain settlor conditions have been met.
    When they are pursued, the law mandates that the 
proceedings are nonpublic. A finding of delinquency in such a 
juvenile proceeding does not result in a criminal conviction 
and cannot be publicized. The United States Attorney's Office 
and the Civil Rights Division have always been and remain 
deeply committed to the vigorous enforcement of our Nation's 
civil rights laws.
    In recent years, the Department of Justice has brought a 
number of high profile hate crime cases. As permitted by 
Federal criminal law, we continue to aggressively prosecute 
those within our society who attack others because of the 
victim's race, color, national origin or religious beliefs.
    While we are deeply concerned about the recent events in 
Jena, we also are very proud of the response we have seen from 
the dedicated Justice Department employees who worked 
diligently on this matter. It is our sincere hope that through 
the process of first responding to community concerns; second, 
ensuring compliance with a Federal desegregation order; and 
third, investigating criminal allegations, we will find ways 
for the community to address the many important issues raised 
by the issues in Jena, Louisiana.
    Thank you, Mr. Chairman.
    [The joint prepared statement of Mr. Washington and Ms. 
Krigsten follows:]
   Joint Prepared Statement of Donald Washington and Lisa M. Krigsten



    Mr. Conyers. Thank you very much, Mr. Washington.
    The Chair notes that the Department of Education has in the 
room the Office of Legislation and Congressional Affairs 
person, Mr. James Kuhl, and the attorney who is in the office 
of the general counsel of the Department of Education Mr. 
Brandon Sherman.
    We now turn to the Southern Poverty Law Center and the 
witness for them, Mr. Richard Cohen, who is no stranger to the 
Judiciary Committee. Morris Dees and he have worked with this 
Committee across the years, and we have had a great deal of 
success in many of the projects that the Committee and the 
Southern Poverty Law Center have engaged in together. Welcome 
again to this hearing.

  TESTIMONY OF J. RICHARD COHEN, PRESIDENT AND CEO, SOUTHERN 
                       POVERTY LAW CENTER

    Mr. Cohen. Thank you Mr. Conyers, thank you very, very much 
for those kind remarks. I appreciate the opportunity to be here 
and to speak to Members of the Committee.
    I want to note at the start that we are deeply involved in 
the affairs at Jena--in Jena. Because it appears to us that the 
Jena 6 were overcharged and because we were quite concerned 
about the adequacy of the legal representation that they were 
receiving, we are providing legal counsel to some of the teens. 
In doing so, let me quickly note that we don't excuse, condone 
violence in any way. Our heart goes out to Justin Barker and 
his family. We know he has suffered terribly.
    Nevertheless, we think it is important that the scales be 
balanced in this case. We are also monitoring the White 
supremacist reaction to the events in Jena. Unfortunately White 
supremacists around the country are trying to exploit the 
situation. We had indications, for example, that White 
supremacists were going to bring weapons to the rally that was 
held in September 20 and immediately passed that information on 
authorities.
    We have also been advising schools about how they can avoid 
situations like Jena in their own locales. We've published a 
booklet, ``Six Lessons From Jena.'' I hope that all Members of 
the Committee have it. We've made it available to 50,000 
teachers so far and will make it available to 400,000 teachers 
in January.
    The Federal Government of course has a very, very strong 
interest in promoting racial harmony in schools. A racially 
hostile atmosphere violates the Constitution of the United 
States in any public school, and it violates the Constitution--
it violates Title VI of the Civil Rights Act of 1964 in any 
school that receives Federal financial assistance.
    Unfortunately, the problem of racial violence continues to 
plague our schools. FBI statistics reflect that schools and 
colleges are the third most common venue for hate crimes. And 
unfortunately, the number of hate crimes that the FBI reports 
is really but a fraction of the hate crimes that occur. A study 
by the Bureau of Justice statistics 2 years ago demonstrated 
that hate crimes are probably--that the FBI figures probably 
understate the nature of the problem by a factor of 20 or 30. 
As Ms. Waters indicated in her opening remarks, the problem of 
hate crime is not confined to the south; one sees it all over 
the Nation in our schools in very, very unfortunate incidents.
    Also, I want to say that it's not confined to disputes 
between Black and White students. There have been a number of 
unfortunate incidents, in California for example of, you know, 
of terrific tensions between Black and Latino students that's 
really quite unfortunate. Now there is no sure-fire formula for 
dealing with the racial tensions at any school, but what's 
happened in Jena is probably a textbook example of what 
shouldn't occur.
    As Mr. Scott indicated, a question was asked, May we sit 
under a particular tree? And the principal said, Well, of 
course, you can sit anywhere that you want. What the principal 
didn't do is, of course, say, Why do you ask that question? 
What makes you think you shouldn't be able to sit there? The 
question itself revealed so much about the climate at the 
school.
    After the nooses were hung, the school system hesitated. 
There as one penalty and then another, and I think that 
confused the community. Understandably when the penalty was 
reduced from expulsion to suspension, a number of children--a 
number of Black children were quite upset, there was no public 
apology. There was no component in the suspension that was 
designed to promote empathy or understanding. Black students 
staged a protest under the proverbial White tree. Instead of 
opening a dialogue with the Black students, the administration 
attempted to shut the dialogue down. Of course, Mr. Walters 
added fuel to the fire, with his famous statement, with the 
stroke of my pen, I can make your lives disappear. Not the kind 
of thing a public official should say in this situation.
    Unfortunately, things went from bad to worse. Black parents 
went to the school board to try address it. At first, they were 
completely rebuffed. They weren't allowed. They weren't on the 
agenda. I know that this Committee and this body has its rules, 
the Robert's Rules of Order are very important, but sometimes 
common sense has to prevail. And when the community is hurting, 
they ought to be heard, and a dialogue ought to be opened with 
them.
    The district attorney's decision to charge the Jena 6 with 
attempted murder further exacerbated the situation. We can 
trust the police in our country to usually bring the harshest 
charge that they can think of, and in this case, they brought 
aggravated battery charges, which themselves were quite harsh 
and probably not called for by the facts. The district attorney 
on his own initiative upped the ante, almost as if he was 
trying to say, Look what I can do with the stroke of my pen. 
What he did seemed to the community, and it seems pretty 
obvious to most of the country, stands in stark contrast to 
what he did in the case of the White students.
    In an ideal world, we know that justice should be blind. In 
the real world, it is not. Prosecutors see race. And in Jena, 
it seems as if Black children were hammered, and White children 
were given a pass or a slap on the wrist.
    The noose hanging itself could have been prosecuted under 
Louisiana law. It also could have been prosecuted under 18 
U.S.C. Section 245. I think if you look at the face of the 
statute section B, there are numerous sections that could have 
been invoked there.
    But we want to be real clear: We're not contending that the 
noose hangers should have been prosecuted under the criminal 
law. We point it out only to contrast it with the way the 
prosecutor exercised his enormous prosecutorial discretion in 
this case.
    Although we believe that the Jena 6 were terrifically 
overcharged, we don't think it is going to help matters by 
prosecuting the noose hangers and sending them to jail. Two 
wrongs don't make a right it seems to us. A far wiser course 
than invoking the criminal law it seems to us would be to 
devote Federal resources to efforts to smooth racial tensions 
at the school.
    Ms. Jackson Lee made a good point. The Department of 
Education has regulations on its books that allow it to 
investigate cases of racially hostile atmosphere outside the 
context of school desegregation cases. And when those nooses 
were hung and when there were news reports about it, the Office 
For Civil Rights in Dallas should have been on the scene.
    Unfortunately, despite the fact that these incidents are 
very common, the resources devoted to them by the Federal 
Government have shrunk in recent years; 15 years ago, the 
Department--the Community Relations Service, a very, very fine 
organization, had more than 100 authorized positions. Today, 
their staff is below 50. There have also been a number of 
Federal programs that provide grants to many good nonprofit 
organizations--the Southern Poverty Law Center doesn't accept 
Federal money, so I'm not talking about us--received grants 
from many non profit organizations, and they did a lot of good 
work. Unfortunately, that money has seemed to dry up. There 
have also, of course, been technical problems with data 
collection, and I don't think we really have a true picture of 
what's going on in our Nation's schools.
    Mr. Conyers. The gentleman's time is running out.
    Mr. Cohen. If I could close by saying that we have been 
critical of the public officials in Jena, but we are confident 
that they are well-meaning professionals who simply weren't 
prepared to deal with the problem at their schools. The Federal 
Government working with experts can help them. I can think of 
no better ending for the unfortunate events in Jena than a 
renewed Federal effort toward that goal. Thank you for the 
extra time, Mr. Chairman.
    [The prepared statement of Mr. Cohen follows:]
                 Prepared Statement of J. Richard Cohen
    My name is Richard Cohen. I'm the president of the Southern Poverty 
Law Center (SPLC), a civil rights organization dedicated to fighting 
hate and bigotry and to seeking justice for the most vulnerable members 
of our society. I appreciate the opportunity, Mr. Chairman and members 
of the Committee, to appear before you in these hearings on ``Jena 6 
and the Role of Federal Intervention in Hate Crimes and Race-Related 
Violence in Public Schools.''
    In our view, the federal government has a strong interest in 
promoting racial harmony in our nation's school. In some cases, this 
interest may require federal officials to investigate and prosecute 
hate crimes that occur at schools or to assist State and local law 
enforcement agencies in their investigation or prosecution of such 
crimes. But we believe that the bulk of the federal effort should be 
aimed at preventing hate crimes from occurring in schools in the first 
place and at helping State and local officials to respond to the 
tensions that often occur in the aftermath of such crimes. Better data 
on the incidence of hate crimes would surely be helpful in that effort.
    I should note at the start that we are deeply involved in the 
controversy surrounding the Jena 6, the six black teens charged with 
serious crimes stemming from the beating of a white student, Justin 
Barker, at the public high school in Jena, Louisiana, during a period 
of racial tension in 2006. We do not excuse violence of any kind or 
minimize Justin's injuries in any way. Our hearts go out to him and his 
family. But it appears to us that the Jena 6 have been overcharged and 
have been in danger of not being adequately represented. For these 
reasons, we are providing legal assistance to some of the teens.
    We also are monitoring the reaction of white supremacist 
organizations to the Jena situation. When our investigative unit, which 
tracks hate group activity and hate crime trends across the nation, 
detected evidence that neo-Nazis were contemplating bringing weapons to 
a rally organized by Jena 6 supporters, for example, we immediately 
contacted Louisiana law enforcement officials. In addition, we have 
been advising educators, through our Teaching Tolerance program, on how 
they can avoid Jena-type situations. Our ``Six Lessons from Jena'' is 
available on the Internet and has been sent to more than 50,000 
educators. We've provided the shortened, print version to members of 
this Committee.\1\
---------------------------------------------------------------------------
    \1\ Our Teaching Tolerance program provides free, anti-bias 
materials, including documentary films on the civil rights movement, to 
schools throughout the nation. After the Columbine tragedy, we 
developed Responding to Hate at School and sent a free copy to every 
public school in the nation. Available at http://www.tolerance.org/pdf/
rthas.pdf, the guide is designed to help educators respond promptly and 
effectively when hate or bias incidents occur at their schools.
---------------------------------------------------------------------------
    The federal government has a strong interest in promoting racial 
harmony in our nation's public schools as well as in private schools 
that receive federal financial assistance. If a racially hostile 
atmosphere exists at a school, students are denied equal educational 
opportunities, in violation of the Fourteenth Amendment to the 
Constitution of the United States in the case of public schools and in 
violation of Title VI of the Civil Rights Act of 1964 in the case of 
any school that receives federal funds. More than 40 years ago, 
Congress passed legislation establishing the Community Relations 
Service to provide assistance to communities in situations where 
``peaceful relations among the citizens of the community . . . are 
threatened'' by racial difficulties.\2\ Over the years, the Community 
Relations Service, other offices within the Department of Justice, and 
the Department of Education have sponsored various initiatives to 
prevent and respond to hate crimes and bias incidents in our nation's 
schools.
---------------------------------------------------------------------------
    \2\ 42 USC Sec. 2000g-1.
---------------------------------------------------------------------------
    Unfortunately, racial problems continue to plague many of our 
schools. FBI hate crime data consistently demonstrate that ``schools 
and colleges'' are the third most common venue for hate crimes in our 
country.\3\ And without question, the FBI hate crime data significantly 
understate the true dimensions of the problem. As a recent Bureau of 
Justice Statistics study demonstrated, the total number of hate crimes 
in the United States may be 20 to 30 times greater than the FBI 
statistics reflect, and race is their most common motivation.\4\ 
Despite the requirement that colleges report hate crimes to the federal 
government, they often fail to do so.\5\
---------------------------------------------------------------------------
    \3\ See, e.g., U.S. Dep't of Justice, 2005 Hate Crime Statistics, 
Location Type, http://www.fbi.gov/ucr/hc2005/locationtype.htm.
    \4\ Caroline W. Harlow, U.S. Dep't of Justice, Hate Crime Reported 
by Victims and Police (NCJ 209911 Nov. 2005).
    \5\ U.S. Gen. Accounting Office, Campus Crime: Difficulties Meeting 
Federal Reporting Requirements (GAO/HEHS-97-52 March 1997).
---------------------------------------------------------------------------
    The problem of hate crimes and racial unrest at schools is not 
confined to the South--the recent noose hangings at Columbia University 
in New York City and at the University of Maryland are examples of its 
widespread nature--and is not confined to tensions between black and 
white students. In California in recent years, for example, tensions 
between black and Latino students have erupted in many schools. In one 
high school in Rialto in 2004, over fifty students were injured in a 
lunchroom racial brawl.\6\
---------------------------------------------------------------------------
    \6\ Susy Buchanan, The Rift, 110 Intelligence Report 8, 10 (SPLC 
2005)
---------------------------------------------------------------------------
    In Jena, racial tensions erupted when three white students hung 
nooses from a schoolyard tree the day after black students sat under 
it. (The tree had apparently been a traditional gathering place for 
white students.) Local officials appear to have handled the incident 
poorly. After the initial decision to expel the noose hangers was 
reduced to some form of suspension that did not include a public 
apology or an educational program designed to promote empathy and 
understanding,\7\ black students staged a protest under the tree from 
which the nooses were hung. Instead of providing the students with an 
opportunity to express their concerns in a constructive way, the 
principal called an assembly and told the students that it was time to 
put the incident behind them. At the same assembly, the LaSalle Parish 
District Attorney, flanked by police officers, ominously warned the 
students to settle down. ``With a stroke of my pen, I can make your 
lives disappear,'' he told them. There is a dispute over whether he was 
looking at the black students when he uttered these words; however, 
there is no dispute over the fact that the black students were the ones 
who were protesting the decision not to expel the white noose hangers.
---------------------------------------------------------------------------
    \7\ The Jena school superintendent later told the Chicago Tribune 
that, ``Adolescents play pranks. I don't think it [the noose hanging] 
was a threat against anybody.'' Howard Witt, Racial Demons Rear Heads, 
Chicago Tribune, May 20, 2007.
---------------------------------------------------------------------------
    After the assembly, a group of black parents came to a school board 
meeting to express their disagreement with the decision not to expel 
the noose hangers. Because they had not arranged to be on the agenda, 
they were denied an opportunity to address the board. The following 
week, they were given that opportunity. Unfortunately, the board was 
largely silent and did not take the occasion to open a meaningful 
community dialogue.
    The District Attorney's decision to charge the Jena 6 with 
attempted murder further exacerbated the racial tensions in the 
community. The police originally charged the six with aggravated 
battery, a harsh charge under the circumstances. But the District 
Attorney, in an apparent effort to show what he could do with a stroke 
of his pen, used his discretion to increase the charges even 
further.\8\
---------------------------------------------------------------------------
    \8\ Even after eventually dropping the attempted murder charges, 
the District Attorney has continued to pursue the aggravated battery 
charges on the theory that the boys' tennis shoes were dangerous 
weapons.
---------------------------------------------------------------------------
    The District Attorney's decision to increase the charges against 
the Jena 6 stands, in the eyes of many in Jena and throughout the 
country, in stark contrast to how he treated white youth involved in 
criminal conduct in LaSalle Parish during the same period. In an ideal 
world, justice would be blind. But in the real world, it is not; 
prosecutors see race. In Jena, the District Attorney appears to have 
thrown the book at black students while giving white youth a slap on 
the wrist or an outright pass.
    A few days before the Barker incident, for example, a black student 
(one of the six who was later charged in the Barker incident) was 
reportedly attacked by a group of white youths. The District Attorney 
charged one white youth with a misdemeanor, and he served no jail time. 
The other white youth were not charged.
    Likewise, the noose hangers--the white youth whose actions sparked 
the racial turmoil at the school--were never charged with a crime, 
although they probably could have been. Louisiana Revised Statute 
14:107.2, for example, creates a hate crime for any institutional 
vandalism or criminal trespass motivated by race. Federal law prohibits 
efforts to intimidate persons from ``enjoying the benefits of any 
program or activity'' receiving federal dollars (public schools, of 
course, get federal funds), from ``attending any public school,'' or 
from ``enjoying any benefit, . . . privilege, [or] facility . . . 
provided . . . by any State or subdivision thereof'' on the basis of 
race. If the violation involves ``the use . . . or threatened use of a 
dangerous weapon''--and a noose could certainly qualify--one could be 
sent to prison for ten years.\9\
---------------------------------------------------------------------------
    \9\ 42 U.S.C. Sec. 245(b). Although the noose hangers may have been 
under eighteen, they could have been prosecuted in federal court and 
charged as adults. See 18 U.S.C. Sec. 5032.
---------------------------------------------------------------------------
    Of course, we would never contend that the noose hangers should 
have been sent to prison, charged with a crime, or even expelled for 
that matter. Although we believe that the Jena 6 were seriously 
overcharged, sending white students to jail would be a poor way of 
balancing the scales. The federal government should be prepared to 
investigate and prosecute serious hate crimes that occur in our 
nation's school when state and local authorities fail to take 
appropriate action.\10\ But the criminal law is a blunt instrument, and 
too many of our young people are already being pushed out of our 
schools and into our prisons.
---------------------------------------------------------------------------
    \10\ The Local Law Enforcement Hate Crimes Prevention Act of 2007, 
which we support, would allow the Department of Justice to assist and 
to provide funds to State and local law enforcement agencies in the 
investigation of hate crimes under State or local law. The Act would 
give priority to rural jurisdictions like Jena facing extraordinary 
expenses.
---------------------------------------------------------------------------
    A far wiser course than increasing federal prosecutions would be 
increasing federal investment in services designed to soothe the racial 
and ethnic tensions simmering in our nation's schools and to respond 
promptly when hate crimes occur. Congress should consider mandating an 
increase in the staff of the Community Relations Service. As our 
nation's diversity has increased, the size of the Community Relations 
Service has decreased. In addition, Congress should consider mandating 
an expansion of programs to fund the activities of non-profit 
organizations working to prevent hate crimes in our nation's 
schools.\11\ In recent years, federal funding for such programs has 
been severely curtailed despite the fact that the problems they address 
have not diminished.\12\ Whether conducted by federal agencies or non-
profit organizations, hate crime trainings should include a component 
for raising the awareness of prosecutors about how their public actions 
and the exercise of their discretion can inflame or calm a volatile 
situation.
---------------------------------------------------------------------------
    \11\ The Southern Poverty Law Center provides free, anti-bias 
materials to schools across the country, but does not seek or accept 
federal monies.
    \12\ An excellent program that no longer receives federal support 
is Partners Against Hate. Created with support from the Department of 
Justice and the Department of Education, Partners Against Hate 
developed tools and training programs and provided technical assistance 
to help schools create safe learning environments, prevent hate crimes 
from occurring, and respond appropriately when bias incidents do occur. 
The program, a collaborative one developed by the Anti-Defamation 
League, the Leadership Conference on Civil Rights Education Fund, and 
the Center for the Prevention of Hate Violence still maintains an 
excellent website, www.partnersagainsthate.org.
---------------------------------------------------------------------------
    Congress also should hold hearings on the federal effort to collect 
hate crime data. The ``most thorough assessment'' of that effort--a 
study conducted for the Bureau of Justice Statistics--concluded that 
``the full picture of hate crime . . . has not yet been captured 
through official data.'' \13\ Hate crimes, including those in our 
schools, are vastly underreported for a variety of reasons.\14\ The 
clearer our picture of the true dimensions of the hate crime problem, 
the better our strategies to combat it are likely to be. Passage of the 
Local Law Enforcement Hate Crime Prevention Act of 2007 would be a good 
start because it would require the collection of data about hate crimes 
committed by and against juveniles.
---------------------------------------------------------------------------
    \13\ Michael Shively, Abt Assocs. Inc., Study of Literature and 
Legislation on Hate Crime in America 57 (2005) (citing report prepared 
for BJS in 2000); see also Discounting Hate, 104 Intelligence Report 6 
(SPLC 2001)(describing some of the problems with the collection of hate 
crime data).
    \14\ See supra p. 3 and note 4.
---------------------------------------------------------------------------
    We have been critical of the public officials in Jena. But we are 
confident that they are well-meaning professionals who simply were not 
prepared to deal with the racial tensions at their school. The federal 
government, working with experts in the field, can help officials like 
those in Jena work toward the goal of creating schools where all 
students feel physically and emotionally safe. It is difficult to think 
of a better ending for the unfortunate events in Jena than a renewed 
federal effort toward this goal.
    Thank you for allowing me to appear before you.

    Mr. Conyers. Thank you so much.
    We now turn to reverend Brian Moran, pastor of the Jena 
Antioch Baptist Church, acting president of the NAACP Jena 
Chapter, and we note that the Reverend has provided a great 
deal of local leadership as well as spiritual guidance in the 
wake of the events that bring us here today.
    We welcome you here to the Committee.

   TESTIMONY OF REVEREND BRIAN L. MORAN, PASTOR OF THE JENA 
 ANTIOCH BAPTIST CHURCH AND PRESIDENT OF THE NAACP JENA CHAPTER

    Rev. Moran. Thank you. First, I want to express my 
gratitude for this opportunity to serve as a witness to shed 
light on the issues surrounding the Jena 6 controversy. I am 
here to share my expressions of the tensions that existed in 
our tiny community leading up to the unfortunate incidences, 
which resulted in six Black students being arrested for one 
school yard fight.
    In Jena, every one knows everyone. Unfortunately, there is 
great deal of racial indifference that seems to have festered 
for many years. This indifference has caused a good many of our 
citizens, both Black and White, to have harsh and mixed 
emotions toward each other. The noose hangings did not help 
things at all. But Jena has a strong sense to get past this 
episode in our history. However, I believe as a minister and a 
citizen that alone will not suffice. Injustice dealt by Judge 
J.P. Mauffrey and District Attorney Reed Walters over the past 
year must be atoned; justice must be done for our community to 
heal.
    Even our school board has a double standard for Blacks, and 
this whirlwind of events merely touched the surface. I know the 
facts of the Jena have been retold a thousand times over, and 
there are those who question whether or not these things 
actually happened. I am here to tell you they did. But there 
are people in this room who probably don't know that before 
sitting under the Whites-only tree, one of the Black students 
actually went to the principal and asked whether he could sit 
under the tree. He was told that he could. We all know that, 
soon after, the nooses were hung from the tree as a sign of 
threats and hate. More than that, many White students began 
screaming ``nigger'' across the school yard whenever Black 
students would pass. These students felt verbally abused but 
did not know that they could do anything about it.
    Most of you know that District Attorney Reed Walters said, 
With the stroke of a pen, I can erase your lives. But what you 
don't know is how helpless the families of these children felt 
at that or how hurt they were that someone would use his job to 
take away a child's life when all he was trying to do was get 
an education.
    Throughout Jena's history, there has always been two 
systems of justice, one for Blacks and one for Whites. The 
stories have been passed down in my family of individuals like 
Bobby Ray Smith, who was killed and thrown into an oil pit by a 
group of White men, but there were no investigations no matter 
how loudly the Blacks in the community protested. And even 
Billy Hunter, who was stomped to death by a White man who 
received only 2 years in prison. Can you imagine the outrage, 
the hurt, the shame our families felt when we think about these 
six boys and the incidents that took place last year in Jena, 
at Jena High School? These stories always will remain in the 
back of our minds.
    Lastly and most recently the incident where two White males 
ran over the church signs shortly after an NAACP meeting at the 
Antioch Baptist Church where I pastor, which was ruled out by 
many not a hate crime. We know that justice can be done, but 
the question is, why hasn't it been done? I am grateful for the 
opportunity to tell my brief story which actually is a much 
larger and longer story, but I am hoping you will get the point 
today, that Jena can be a great town, but right now, it is a 
town where two systems of justice exist, and that is simply un-
American. And we believe it is no longer acceptable. Thank you 
for your time.
    [The prepared statement of Rev. Moran follows:]
               Prepared Statement of Rev. Brian L. Moran
    First I must express my gratitude for this opportunity to serve as 
a witness to shed light on the issues surrounding the Jena 6 
controversy. I am here to share my impressions of the tensions that 
existed in our tiny community leading up to the unfortunate incidences 
which resulted in six young black students being arrested for a school 
fight.
    In Jena, everyone knows everyone. Unfortunately, there is a great 
deal of racial indifference that seems to have festered for many years. 
This indifference has caused a good many of our citizens, both black 
and white, to have harsh and mixed emotions toward each other. The 
noose hanging did not help things. But Jena has a strong sense to get 
past this episode in our history. However, I believe, as a minister and 
citizen, that ``will'' alone will not suffice. The injustice dealt by 
Judge J. P. Mauffray and District Attorney Walters over the past year 
must be atoned. Justice must be done, for our community to heal. Even 
our school board has a double standard for blacks and this whirl wind 
of events merely touched the surface.
    I know the facts of Jena have been retold a thousand times over, 
and there are those who question whether any of it actually happened. 
I'm here to tell you, it did. But there are people in this room who 
probably don't know that before sitting under the ``whites only'' tree, 
one of the black students actually went to the principal and asked if 
he could sit under the tree. He was told he could. We all know that 
soon after that, nooses were hung from the tree as a sign of threats 
and hate.
    More than that, many white students began yelling Nigger across the 
school yard whenever black students would pass. These students felt 
verbally abused, but did not know they could do anything about it.
    Most of you know that District Attorney Reed Walters said ``with 
the stroke of a pen, I can erase your lives.'' But what you don't know 
is how helpless the families of these children felt at that, or how 
hurt they were that someone would use his job to take away a child's 
life when all he was trying to do was get an education.
    Throughout Jena's history, there has always been two systems of 
justice, one for blacks and one for whites. The stories have been 
passed down in my family of individuals like Bobbie Ray Smith, who was 
killed and thrown into an oil pit by a group of young white men, but 
there was no investigation, no matter how loudly the blacks in the 
community protested. And Billy Hunter, who was stomped to death by a 
white man, who received only two years in prison. Can you imagine the 
outrage, the hurt, the shame that our families felt? When we think 
about what happened to the 6 boys last year at Jena high, these stories 
are always at the back of our minds. We know what can be done, and we 
know what hasn't been done. Justice.
    I am grateful for the opportunity to tell my brief story, which is 
actually a much longer story, but I'm hoping you will get the point. 
That Jena can be a great town, but right now it is a town where two 
systems of justice exist, and that is simply unAmerican, and we believe 
it is no longer acceptable. Thank you.

    Mr. Conyers. Thank you very much, sir.
    Now we turn to professor Charles Ogletree, director of the 
Charles Hamilton Houston Institute for Race and Justice at 
Harvard Law School and who has been most recently been before 
this Committee in terms of hearings on the Tulsa race riots of 
1921 and has participated with the Congressional Black Caucus's 
criminal justice hearings across the years. He is a noted 
author, lecturer and has been in the courts for many decades.
    We are happy to have you here again, Professor Ogletree.

 TESTIMONY OF CHARLES J. OGLETREE, JR., DIRECTOR, THE CHARLES 
 HAMILTON HOUSTON INSTITUTE FOR RACE AND JUSTICE, HARVARD LAW 
                             SCHOOL

    Mr. Ogletree. Thank you, Congressman Conyers and also the 
Ranking Member, Congressman Smith. I am very happy to be here 
before this Committee and other Members of Congress who are 
here today. And I thank you for giving me the chance to speak 
briefly. I have prepared an extensive report that I hope will 
be made part of the record that has data as well as some 
suggestions for future directions, as Congress Smith mentioned, 
and I hope that that will be considered by this Congress.
    In the short time that I have today, I want to say a few 
things. There is a sign over the courthouse in Florida that has 
a useful epithet; it says, The court is where the injured flock 
for justice. And it reminds me of how the people in Jena today 
are wondering, where do they go? Where can they find a sense of 
justice? Where can they be treated not better, not differently, 
but just fairly?
    This incident that we have been talking about is a 
microcosm of a larger set of incidents that have occurred in 
Jena. And yet what occurred in Jena in 2006 is not isolated; it 
is not different than what happened to Genarlow Wilson in 
Georgia; than what happened in West Virginia; at the University 
of Maryland; at Hempstead, New York; at Columbia University. 
And the irony is that just a year ago, I wrote a book with 
Professor Austin Sarat called, ``From the Lynch Mob to the 
Killing State: Race and the Death Penalty in America,'' looking 
back at the history of these incidents with the idea that, 
thank God we're not there anymore.
    It is ironic that 1 year after this book is published, 
looking at the issues of lynchings and disparities in our 
criminal justice system, we find them writ large, not just in 
Louisiana but across the country. At that time, we talked about 
the fact that while lynching seemed historic, we can't forget 
what happened to James Byrd in Texas in 1998 or Emmett Till in 
Mississippi in 1955.
    As much as we want to put these incidences in the back of 
our minds, it reminds us, what happened with that tree is 
symbolic of the fact that we have yet to come to grips with the 
fact that every citizen in America should be treated the same. 
And it is not just about the young men who hung those nooses. I 
think that while that is an important fact, the fact is that 
there is a cancer in Jena, and we tried to treat it with 
aspirin and good wishes and hope. But the reality is that it 
requires a radical solution.
    I hope the Committee will not just look at what we can do 
in terms of the Federal law, which I'll talk about in the time 
I have remaining, but what we can do locally right within the 
community of Jena.
    When any public official or parent tells a child, a 
teenager that hanging a noose is a prank or a practical joke, 
in America that has been created as a result of violence in the 
Civil War and other issues of slavery and Jim Crow segregation, 
they are not really addressing the underlying issue of the 
tensions in our community. And the parents need that. What is 
the legislative response? The number of ways that this Congress 
can look into this issue is numerous. I adopt and embrace all 
of the remarks you heard by Richard Cohen in terms of some 
options, not only the Title VI of the 1964 Civil Rights Act, 
but one important issue educationally is No Child Left Behind.
    As this Congress is examining what it shall do going 
forward, the one thing we need to understand is that this is a 
failing school system. It's not just this incident, but who's 
graduating? Who's been expelled? Or who is being suspended? The 
data we have that is data for Jena, Louisiana, tells us that 
there is a great disparity between Black and White children in 
terms of suspensions and expulsions. That shouldn't happen in 
Jena. It shouldn't happen anywhere else in America today.
    Moreover, there is a report that was just released, by 
Marian Wright Edelman called, ``America's Cradle-to-Prison 
Pipeline,'' by the Children's Defense Fund. It is a reminder 
that our children are being criminalized from the ages of 5, 6, 
7, 8. Here is a child sitting on a crate because he can't stand 
up to be fingerprinted for an alleged crime in his community. 
This is what we're dealing with today in a very powerful and 
graphic way.
    The other point about Jena is this, and we'll talk about it 
more in the questions in terms of remedies, one of the 
important things is that, Mr. Washington mentioned, there is a 
1971 school desegregation order, so we have a history in Jena, 
Louisiana, and we need to examine not just legal issues in 
terms of eduction but also the criminal justice system in a 
very powerful and thorough way.
    Finally, I would ask that this Committee think about what 
Mr. Washington said about the punishment of the two young 
people who were held responsible for the nooses; 9-day 
suspension, 2 weeks in school suspension and family counseling. 
But have these young men ever been told or understood that what 
they did was not just a slight against the young people in 
Jena, Louisiana, but a slight on America? When the world looks 
here and sees nooses hung and understands that we are still, in 
2007, dealing with a history that we thought we left a decade 
ago and certainly a century ago.
    I implore this Committee to use all of its authority to 
look at Federal powers, look at the prosecuting judge, to look 
at Federal powers to look at the educational system for No 
Child Left Behind and also look at the Federal power to see, 
what can we do on the ground to improve race relations in Jena, 
Louisiana, to do it with dispatch. Thank you.
    [The prepared statement of Mr. Ogletree follows:]
             Prepared Statement of Charles J. Ogletree, Jr.
    Dear Chairman John Conyers and Members of the House of 
Representatives Judiciary Committee:
    My name is Charles Ogletree. I am the Jesse Climenko Professor of 
Law at Harvard Law School. I am also founder and Executive Director of 
the Charles Hamilton Houston Institute for Race and Justice, also at 
Harvard Law School.
    Charles Hamilton Houston was a native of Washington, D.C., a 
graduate of the M Street High School, now known as Dunbar High School 
and valedictorian at Amherst College before he began his career at 
Harvard Law School in 1919. Later, as vice-dean of Howard Law School, 
Houston was instrumental in developing the strategy employed by 
Thurgood Marshall, and many of Houston's other proteges, in Brown v. 
Board of Education. Charles Hamilton Houston played a pivotal role in 
ending Jim Crow segregation in America. He trained a generation of 
lawyers who went on to have a profound impact on eradicating enforced 
segregation and other racial injustices. As Executive Director of the 
Charles Hamilton Houston Institute for Race and Justice, I, with a 
staff of experts in the areas of education, housing, child development 
and criminal justice are attempting to carry on Houston's legacy in 
remedying racial inequalities in opportunity and related injustices in 
connected systems of education and criminal justice.
    The House Judiciary Committee's decision to conduct hearings to 
examine recent incidents Jena, Louisiana, marks an important moment in 
history. As you know, Jena, before 2006, was a quiet community of 3,000 
people. In less than a year, the community became a lightning rod for 
accusations about racism and injustice. Jena became a stage on which 
our most stubborn social problems play out. These are long-standing 
challenges that are so complex and difficult to deal with rationally 
that we often take the more comfortable route and avoid engaging them. 
I applaud the Committee's fortitude in confronting our contemporary 
version of racial inequalities and unresolved race-related tensions 
that do not look so different from the sort Charles Hamilton Houston, 
his colleagues and students took on decades before.
    My areas of expertise are civil rights and criminal justice. I have 
been teaching at Harvard Law School for the last 32 years. For eight 
years, I was a lawyer at the Public Defender Service here in 
Washington, DC. During the course of my practice and teaching, I have 
had the chance to not only represent clients, but to observe race and 
class disparities in education and criminal justice from a wide range 
of perspectives. As I look at what happened in Jena, Louisiana last 
year, and the implications of those incidents for shaping public 
policy, I see ample room for Congress to thoroughly investigate, better 
understand and then address the racial disparities and disparate 
treatment that are hallmarks of our educational and criminal justice 
systems in every corner of the United States. Both systems seem to me 
to require intervention on a variety of levels. Prior testimony at this 
hearing, along with material already in the Congressional record 
highlights some salient issues. I will point out a few of the most 
urgent and significant matters I think require attention. Then I will 
offer suggestions to help us move forward.
    First, no public school in the United States should have a policy, 
either written or implicit, that reserves sections of the grounds for 
students of a certain race. It is unlikely that a modern-day school 
official would write a restriction of that nature down on paper. It is 
unlikely that any school board would be so ignorant as to pass such an 
ordinance. Such ``official'' regulations certainly did not exist in 
Jena. However, the mere fact that black students felt compelled to 
inquire of the school principal whether or not they were allowed on an 
particular area of public property is a clear signal that a more 
explicit discussion about race and access is required. No child of any 
race should be forced to encounter a school climate that is so hostile 
that a he or she might think that her skin color or, say, her native 
language or country of origin might limit where she could sit, stand, 
play or learn.
    Second, and related to this ``hostile environment'' the incidents 
in Jena send out another alarm. We have failed at basic lessons of 
history if an American can blithely characterize hanging nooses on a 
tree as an innocent prank or practical joke, as some officials and 
parents in Jena have done. This is not an act that should be minimized, 
laughed off or chocked up to childhood shenanigans.
    The history of lynching in the United States, most notably in the 
south, is not ancient. It has an especially intense emotional meaning 
to African Americans. With more than 3,000 people lynched from the late 
1800's through the early 1900's--children often attended such events as 
if they were carnivals \1\--a noose today is a powerful symbol of 
American white supremacy and pure barbarism. Given the context, the 
noose, particularly to an African-American who knows his history, is 
nothing less than an expression of hatred. It is, too, a warning of 
impending violence and likely death.\2\ Speaking as an African-
American, I can say that the image of a noose is as frightening as it 
is enraging.
---------------------------------------------------------------------------
    \1\ Brundage, W. Fitzhugh. Lynching in the New South. University of 
Illinois Press. 1993.
    \2\ See, generally, Ogletree, Charles Jr., and Austin Sarat. From 
Lynch Mobs to the Killing State: Race and the Death Penalty in America. 
New York University Press. 2006.
---------------------------------------------------------------------------
    Moreover, if the students responsible for hanging the now infamous 
nooses in Jena are unable to appreciate the significant brutality of 
such an act, that lack of understanding should be addressed for the 
good of the collective community. If all that emerges from these 
unfortunate events are educators' more systematically informing 
community members and students about the shameful history of lynching 
that will be a positive step. We might view my suggestion as a 
community-level matter for local educators to address either by taking 
honest stock of school racial climate, enacting policies to enhance 
racial understanding, educating the community about racial history and 
establishing clear rules that take a strong stance against 
discrimination and racism and ``hostile environments'' in any form. 
This also seems to be an example of where a ``restorative justice'' 
approach to school discipline would be both appropriate and productive. 
In restorative justice approaches, the perpetrators of the crime must 
make amends to their victims, and undertake activities that help them 
more fully comprehend the impact of their actions on their 
community.\3\
---------------------------------------------------------------------------
    \3\ See, for example, discussion of restorative models from Great 
Britain in Wilcox, Aidan and Carolyn Hoyle. The National Evaluation of 
the Youth Justice Board's Restorative Justice Projects. Centre for 
Criminological Research. University of Oxford. Youth Justice Board. 
2004.
---------------------------------------------------------------------------
    It may be far easier for local officials in politicized school 
districts to take on these volatile issues and enact enlightened 
``restorative justice'' approaches if national elected leaders 
encourage them to do so and if, the federal government offered 
incentives and endorsed examples of ``best practice'' programs and 
policies that might improve cross-racial relations and foster a climate 
of tolerance and a deeper understanding and appreciation between racial 
groups.
    Third, we must also carefully and honestly consider the question of 
whether or not the black teens prosecuted in Jena were treated fairly, 
without regard to race or class. It is in that vein that the House 
Judiciary Committee can play a leading, important role in a variety of 
ways.
    It is important for us to understand that Jena is not an isolated 
incident. Jena's most important role is in lending drama and immediacy 
to a long-standing, worsening problem. National data on racial 
disparities in our school discipline and juvenile justice systems point 
to a link between harsh school discipline policies and entrance into 
the criminal justice system.
    The research into racial disparities that show up first in school 
suspension and expulsion data and then continue unabated in the 
juvenile justice system is not new. In fact, researchers have been 
collecting data on disparities for three decades now.\4\ Across the 
nation, black students, black males in particular, get disciplined at 
rates that greatly exceed their representation in the general school 
population.\5\
---------------------------------------------------------------------------
    \4\ Osher, D., Woodruff, D., and Sims, A. (2002). Schools make a 
difference: The relationship between education services for African 
American children and youth and their overrepresentation in the 
juvenile justice system. In D. Losen (Ed.), Minority issues in special 
education (pp. 93-116) Cambridge, MA: Harvard University, Civil Rights 
Project; Skiba, R.J., and Knesting K. (2001). Zero Tolerance, zero 
evidence: An analysis of school disciplinary practice. In R.J. Skiba & 
G.G. Noam (Eds.), Zero tolerance: Can suspension and expulsion keep 
schools safe? (17-43). San Francisco: Jossy-Bass. Gottfredson, D.C. 
(2001). Schools and delinquency. Cambridge University Press; Department 
of Health and Suman Serivces. (2001).
    \5\ Casella, Ronnie. Punishing dangerousness through preventive 
detention: Illustrating the institutional link between school and 
prison. In Wald, J and Losen, D (Eds.) New Direction for Youth 
Development. Jossey-Bass: 2003. Balfanz, Robert and Kurt Spiridakis, 
Ruth Curran Neild and Nettie Legters. High-poverty secondary schools 
and the juvenile justice system: How neither helps the other and how 
that could change In Wald, J. and Losen, D. (Eds). New Direction for 
Youth Development, Jossey-Bass: 2003.
---------------------------------------------------------------------------
    Nationally, black students are 2.6 times more likely to be 
suspended as white students. As the overall numbers of students being 
suspended each year increased due to tough zero tolerance policies that 
became increasingly popular throughout the 1990's, so did racial 
disparities. In 1973, 6 percent of blacks and 3 percent of whites were 
suspended at least once. By 2003, those numbers increased to 13.9 
percent for blacks and 4.9 percent for whites.\6\ In some states, black 
suspension rates are as high as 25 percent.\7\ Black students with 
disabilities are at even higher risk of both suspension and 
incarceration. Black students with disabilities are more than three 
times as likely as white students with disabilities to be removed from 
school and four times as likely as white students with disabilities to 
be placed in a correctional institution.
---------------------------------------------------------------------------
    \6\ US Department of Justice. Office of Juvenile Justice and 
Delinquency Prevention. 2004 Census of Juveniles. Also, U.S. Department 
of Education, Office for Civil Rights.
    \7\ Ibid.
---------------------------------------------------------------------------
    Students who are suspended are three times more likely to drop out 
by 10th grade than students who have never been suspended.\8\ Dropping 
out triples the likelihood that a person will be incarcerated later in 
life.\9\ Nationwide, in 1997, about 68 percent of state prison inmates 
had not completed high school.\10\
---------------------------------------------------------------------------
    \8\ Goertz, M.E., Pollack, J.M & Rock, D.A. (196). Who drops out of 
high school and why?: Findings from a national study. Teachers College 
Record, 87, 357-73.
    \9\ Coalition for Juvenile Justice. Abandoned in the Back Row: New 
Lessons in Education and Delinquency Prevention. 2001 Annual Report.
    \10\ U.S. Bureau of Justice Statistics.
---------------------------------------------------------------------------
    Juvenile justice data mirror these disparities. In 2003, African 
American youth were detained at a rate four and a half times higher 
than their white counterparts. According to these figures, minority 
youth represented 61 percent of all youth detained in 2003, despite 
accounting for only about one-third of the nation's youth 
population.\11\ Four out of five new juvenile detainees between 1983 
and 1997 were youths of color. According to one studyblack youths with 
no prior criminal records were six times more likely, and Latino youths 
three times more likely, to be incarcerated than white youths for the 
same offenses.\12\
---------------------------------------------------------------------------
    \11\ Hayward Burns Institute. San Francisco, California.
    \12\ Poe-Yamagata, Eileen, Michael A. Jones. National Council on 
Crime and Delinquency And Justice for Some. Building Blocks for Youths, 
Youth Law Center, Washington, D.C. 2000. http://
www.buildingblocksforyouth.org/justiceforsome/
---------------------------------------------------------------------------
    One of the first steps in discerning the causes for these 
disparities and the cures is obtaining reliable, consistent data on the 
problem. For example, depending upon what data source one looks too, 
Jena High School, in the year 2002, recorded anywhere from 65 out of 
school suspensions \13\ to 0 out of school suspensions, as reported to 
the Louisiana State Department of Education.\14\
---------------------------------------------------------------------------
    \13\ U.S. Department of Education, Office for Civil Rights.
    \14\ Louisiana Department of Education. District Composite Report. 
2005-2006 LaSalle Parish. March 2007.
---------------------------------------------------------------------------
    According to the OCR data, at Jena High School in the 2001-2002 
school year, 10 out of 45 black females and 10 out of 50 black males 
were suspended out of school at least once. But just 10 out of 205 
white females and 35 out of 225 white males were suspended out of 
school at least once. This translates into an out of school suspension 
rate of 4.8 percent for white females and 22 percent for black females, 
at least according to this data. In other words, black females were 
more than 4 times more likely to be suspended than their white 
counterparts. The rates for white versus black males in Jena were 15.5 
percent and 20 percent respectively, according to the U.S. Department 
of Education.\15\
---------------------------------------------------------------------------
    \15\ U.S. Department of Education. Office for Civil Rights.
---------------------------------------------------------------------------
    Simply because the numbers of students here are so small, it is 
crucial that we not jump to conclusions about the source of the 
apparent disparities. But what is clear, is that consistently reliable 
data broken down by race are vital as we move forward. Most 
immediately, the question we must ask is: Why do the two sets of data 
differ so remarkably? Without clear, reliable information about 
disparities, it is simply impossible to locate potential problems or 
make sound decisions about potential solutions.
    Under the Gun-Free Schools Act, districts are currently required 
only to report the most serious offenses that triggered suspensions or 
expulsions.\16\ At the least, school districts should be required by 
the federal government to report suspensions from school, broken down 
by race, no matter the alleged offense since research demonstrates a 
clear link between suspension and lower achievement and between 
suspension and dropping out of school and between dropping out of 
school and incarceration.
---------------------------------------------------------------------------
    \16\ Gray-Adams Westat, Karen. Report on the Implementation of the 
Gun-Free Schools Act In the States and Outlying Areas. School Year 
2003-04. U.S. Department of Education. Office of Safe and Drug-Free 
Schools. April 2007.
---------------------------------------------------------------------------
    Meanwhile, in Louisiana we do know that African American youth are 
vastly overrepresented in juvenile detention facilities. In 2001, in 
that state, African American youth represented 41 percent of the 
overall youth population, but 68 percent of youth in detention.\17\
---------------------------------------------------------------------------
    \17\ The Hayword Burns Institute. San Francisco, California. http:/
/www.burnsinstitute.org/dmc/la/
---------------------------------------------------------------------------
    Experts in criminal justice and sociology offer a range of causes 
for the disparities and it is undoubtedly difficult to untangle the 
complex, interconnected sources of the problem. Plausible explanations 
include inherent and often wholly unconscious racial bias on the part 
of school officials and actors within the criminal justice system. One 
research study conducted by Professor Russ Skiba of Indiana found that 
black students are punished more severely than white students for 
lesser offenses, such as ``disrespect,'' ``excessive noise,'' 
``threat,'' or ``loitering'' than their white peers.\18\ In addition, 
Skiba's study on perspectives on school discipline of principals in the 
state of Indiana found that a principal's attitudes toward school 
discipline in general, and the effectiveness of the use of suspensions 
specifically, played a far greater role in the numbers of students 
suspended in a school than the actual behaviors of the students.\19\
---------------------------------------------------------------------------
    \18\ Skiba, Russell, Robert S. Michael, Abra Carroll Nardo and 
Reece Peterson. The Color of Discipline: Sources of Racial and Gender 
Disproportionality in School Punishment. Indiana Education Policy 
Center. 2000.
    \19\ Skiba, Russell; Edl, Heather. The Disciplinary Practices 
Survey: How Do Indiana's Principals Feel About Discipline. Children 
Left Behind Policy Briefs. 2004.
---------------------------------------------------------------------------
    Such bias, coupled with harsher ``zero tolerance'' policies in 
schools, research strongly suggests, leads to black students, 
particularly males, being suspended, expelled and eventually 
incarcerated for behaviors and crimes for which their white peers, on 
average, don't receive as harsh, opportunity limiting punishments. 
Meanwhile, a third, related explanation is that the environments in 
which significant numbers of African American children live encourage a 
defensive, confrontational, hyper-aroused, but not necessarily 
dangerous, posture. The most constructive response, especially for 
younger children, the research suggests, is increased psychological 
services, family support and sensitized educators--not automatic 
suspension and/or expulsion, which research shows alienates children 
from school and often marks a child's first step toward the criminal 
justice system.\20\
---------------------------------------------------------------------------
    \20\ See, for example, Massachusetts Advocates for Children. 
Helping Traumatized Children Learn. A Report and Policy Agenda. 2005. 
Also, Craig, S. The Educational Needs of Children Living with Violence. 
Phi Delta Kappan. 74 67-71;68. Pynoon, R.S., Steinberg, A.M., and 
Goenjian, A. (1996). ``Traumatic Stress in Childhood and Adolescence: 
Recent developments and current controversies.'' In B.A. van der Kolk, 
A. McFarlane and L. Weisaeth (Eds.), Traumatic Stress: The Effects of 
Overwhelming Experience on Mind, Body, and Society. (pp. 331-358). New 
York: Guilford Press; pp. 332, 349-350.
---------------------------------------------------------------------------
    Of course, Congress has the responsibility to examine whether the 
educational system in Jena, in particular, which is obligated to 
provide equal protection of the laws for all children, has violated the 
rights of students in terms of suspensions and expulsions. Similarly, 
the same careful analysis and investigation should be applied to the 
local system of justice there. It's not enough to assume that the 
national problem of bias in the criminal justice system is what is at 
play in Jena. In fact, we know very little about Jena in a larger 
context. However, given the numerous anecdotal reports about racial 
bias and the strong perception of injustice that seems to match the 
experience of many African-Americans in our nation, it seems that alone 
warrants an investigation. While the facts about what occurred in Jena 
are predictably in dispute, clearly there is a widely held belief that 
race played an enormous role in determining who was punished, to what 
extent, and for what reasons.
    One can never fully enter another human being's mind to assess 
motive or prejudice. However, repeated patterns of disparate treatment, 
astonishing disparities, and notably harsh, disparate punishments for 
children of color, should, at the very least, raise a red flag. Racial 
prejudice is far more difficult to discern these days, but that does 
not mean it is not there, infecting what are supposed to be objective 
decisions about whether a child can attend school, whether or not he 
should be charged with a crime and whether or not he should go to jail.
    The immediate lessons of Jena should be clear. A public educational 
system should not be allowed to punish anyone in disparate ways where 
it appears to have racial implications. Procedures should be 
implemented to prevent that from happening. The federal government 
should provide resources for states and localities to educate 
professionals about racial disparities and the bias and prejudice that 
likely plays a role in disparate treatment. Men and women who are 
elected or appointed to administer the criminal justice system would 
also benefit from enhanced understandings. The federal government 
should collect and make publicly available rates of out of school 
suspension and expulsion, no matter the offence, broken down by racial 
group. Further, extraordinarily high suspension rates--for example 
where more than 20 percent of any racial group of students are 
suspended at least once--signal a school in need that is unlikely to be 
serving students educational interests if significant numbers of 
students are losing instructional time. Clearly, we should put in place 
a system for flagging intervention in such schools and in the schools 
shown to be suspending half or more of black males more than once. Such 
schools are pushing children out more than encouraging them to stay in 
and need support in changing their culture and outcomes.
    In our modern times, so much bias lives undercover. For that reason 
alone, we may never know the full extent of what happened in Jena, 
Louisiana and exactly why. But we do know that a significant segment of 
that community, consisting of African American adults and children, 
strongly believe that the system is patently unfair, and the absence of 
recourse outside the borders of Jena makes them wonder whether anyone 
will really pay attention and address their valid concerns after the 
protesters and media representatives leave their small community. 
Coupled with the long-standing national data pointing to racial 
disparities and strongly suggesting the role of bias and the long 
legacy of racism in our nation, it seems that at the least, we must 
take their concerns very seriously, as a closer, more careful, 
consistent investigation that might lead to answers and, most 
important, to healing and improvements, is clearly called for.
    Thank you for this opportunity to testify on this most important 
matter.

    Mr. Conyers. Thank you so much. Let's look at a situation 
like this: Schools don't exist in a vacuum. The tensions in 
them are generally a reflection of the community that they are 
in. How can we eliminate a racially hostile environment in the 
Jena schools in light of concerns about a racially hostile 
environment in the larger surroundings in which they exist? I 
see a response from you, Professor Ogletree, in that regard.
    Mr. Ogletree. Absolutely, Congressman Conyers. The first 
thing is that CSR, to their credit, has been going to Jena. 
That's an important step, but not enough. We have to be there 
on the ground because people in Jena today think there isn't a 
problem, that race isn't a factor, that these are all isolated 
incidents that have no bearing, and that's part of the 
unconscious bias that we have to address. So I think 
congressional hearings there to hear how people may not even 
understand the racial implications.
    The second is a broader implication; most of these young 
men, as Mr. Scott will tell you, are not in school. And in 
fact, in order for them to continue their education, they are 
going to have to travel outside of Jena to get an education 
somewhere else.
    Even if we solve the criminal justice problems, if these 
young men don't get a high school diploma, if they are not on a 
path toward education and college and professional pursuits, we 
failed them in that respect. One final context, the data I have 
in the report makes clear that those who don't finish high 
school are more likely to end up in jail and prison; are less 
likely to have a job and be employable. And so the problem has 
to be at the root.
    And the second part is this: We have to look at the fact 
that a judge who is able to try a case as an adult case and get 
reversed by the Third Court of Appeals of Louisiana, then tries 
the same case, the juvenile case, at least it raises a conflict 
of interest. A prosecutor who is the head lawyer for the school 
board who talks about school policy and who should be punished 
is the same prosecutor who decides the charges in a criminal 
context. Those are areas where some Federal oversight is 
important because the State has failed to address these issues 
in a meaningful way.
    U.S. Attorney Donald Washington, do you have a thought 
about this?
    Mr. Washington. Yes, Mr. Chairman. Generally, you know, 
when we have conversations last week with the ministers in the 
community and some other folks, we talked about the very 
question that you raised. And what we have encouraged them to 
do, A, is they have to act amongst themselves. This concept of 
unconscious bias does exist I believe in the Jena community. 
They have to establish relationships among themselves. So we 
are assisting and encouraging them to engage in a number of 
social interaction, the community relations services come up 
with a plan of action which they have executed over the last 
several months and which we are in the middle of, in fact, to 
get to the very question that you asked, how do we move forward 
from here.
    Mr. Conyers. It is a difficult one. I don't throw this out 
to get a pop response. I mean, this is the core of the problem, 
really. What is reflected in the school isn't something 
different that is reflected probably outside the school. 
Richard Cohen, would you give a comment?
    Mr. Cohen. I think the change is right, that the school 
exists within the community, but oftentimes, tensions within a 
school are much worse than in the community. What happens is 
people in the community have a stylized way of dealing with one 
another. But in a school, there is a much greater degree of 
intimate contact--we are in gym class together, eat together, 
there are raging hormones.
    So I think that oftentimes, the situation in a school can 
be much worse. But it also gives an opportunity to do something 
that we can't often do with adults. You know, we have that 
captive audience in school and we can bring people together and 
educate them. That is kind of the whole idea behind it. I must 
say that think in Jena, they missed many opportunities to open 
a dialogue with the community. The way the Black parents were 
treated at the school board really shut down dialogue rather 
than opened it up. And the last thing I note, Mr. Chairman, is 
I think it is going to be very difficult in Jena to resolve the 
larger community problems until there is justice in these 
cases, until these cases are resolved. I think they are now a 
symbol of the larger injustices that are going on in Jena.
    Mr. Conyers. Reverend Moran and Ms. Krigsten, do you have a 
comment? My time is almost out.
    Reverend Moran. Primarily, yes, I do agree with him. The 
injustices that has taken place in the school systems must be 
resolved before anything will take place in the community. 
Because the eyes of the community are upon the rulings of those 
citizens in the school system and until that is done, I don't 
believe we'll be in a healing process.
    Ms. Krigsten. Mr. Chairman, I want to take this opportunity 
to echo the statements of my colleague, Mr. Washington and 
indicate that the Department of Justice has committed its 
resources to a holistic approach to what is occurring in Jena. 
At this time, I do want to note that one of the steps the 
Community Relations Service is taking is to start a particular 
school program called the SPIRIT program inside the Jena school 
to address these very issues that you and other Members of the 
Committee are concerned about.
    Mr. Conyers. Thank you very much. Ranking Member Lamar 
Smith.
    Mr. Smith. Thank you, Mr. Chairman. Mr. Washington and Ms. 
Krigsten, thank you for your testimony, particularly the more 
written extensive testimony you submitted. And I certainly hope 
that any Member of Congress that questions how much the Federal 
Government is doing will take advantage of reading your 
testimony, and also, perhaps, talk, as I understand, to the 
director of the community election service who is sitting 
behind you.
    I know much is being done on the ground and there is no 
substitute, frankly, for the footsteps of those in the Federal 
Government to reassure people. At the same time, while 
everything you are doing, I think, is worthwhile and needed, we 
need to remember to respond to some of the suggestions by 
Professor Ogletree that it is not just enough to be there, some 
policies have to change as well. Anyway, thank you for your 
testimony. But what I wanted to ask you, do you think the 
environment is changing? Do you think there is an improvement 
in the way people see racial injustice in Jena now as a result 
of your efforts?
    Mr. Washington. I'll start to answer that question. My gut 
tells me yes. And the reason I say that is because a number of 
them have indicated that they never thought that their fair 
city would be held up to the world as an example of a racist 
city. And they never thought they'd have somewhere between 
12,000 and 60,000 people show up in their city at one time. 
Having said that, they are struggling with coming up with ideas 
as to how to move forward. We are working with them as I said 
before, the community relations service through my office and 
through the civil rights division to help them come up ways to 
move forward. We're considering, you know, how do we get, for 
example, different types of funding perhaps, for programs that 
they may come up with to assist with the kind of interactions 
that simply need to occur in that city.
    Mr. Smith. Thank you, Mr. Washington. Ms. Krigsten, do you 
have anything to add to that?
    Ms. Krigsten. I do want to add there is a healthy dialogue 
taking place in Jena at this time. Mr. Washington was joined by 
the Civil Rights Division and the Director of the Community 
Relations Service in Jena last Friday, and they had a dialogue 
with members of the clergy and other leaders in the community. 
And based on reports of those meetings, the dialogue continues 
and things are slowly getting better, much with the assistance 
and guidance of the Community Relations Service, which 
continues to provide active support in that community.
    Mr. Smith. Thank you. Mr. Cohen, thank you for your 
testimony. I really thought it was balanced and I thought you 
had a couple of solutions I want to read in a minute because 
you did not get to them I don't think in your oral testimony. 
But I also appreciate your saying something today that frankly 
maybe needs to be said a little bit more often. You said we do 
not excuse violence of any kind or minimize Justin's injuries 
in any way. Our hearts go out to him and his family. And the 
point of fact that is often overlooked, a brutal and unprovoked 
attack occurred and apparently it was perpetrated by an 
individual with a long criminal history. I don't think we ought 
to make light of that in looking at the bigger picture, but I 
appreciate your mentioning that. I also appreciating your 
making two suggestions on solutions. You said we should 
increase Federal investment and services designed to soothe the 
racial and ethnic tensions simmering in our Nation's school and 
respond promptly when hate crimes occur. You also said the 
Federal Government working with experts in the field can help 
officials like those in Jena work toward the goal of creating 
schools where all students feel physically and emotionally 
safe. Those are wonderful goals. It is a challenge for Members 
of Congress to implement policies for the American people 
wherever they are located to achieve those. I don't have time 
for Congress because I wanted to make a comment to Professor 
Ogletree.
    First of all, Professor, in your bio that we had before us 
it says that you began your career at Harvard Law School in 
1919. Now, I know----
    Mr. Ogletree. That's Charles Hamilton Houston, not me. 
That's the other Charles.
    Mr. Smith. I know you're a wise man, but I didn't know you 
were that experienced is my point. Professor, what I wanted to 
say to you--I actually want to read something from your written 
testimony that you did not, I don't think, mention in your oral 
testimony. With more than 3,000 people lynched from the late 
1800's to the early 1900's, children often attended such events 
as if they were carnivals. A noose today is a powerful symbol 
of American White supremacy and pure barbarism.
    Given the context, a noose, particularly to an African 
American who knows his history, is nothing less than an 
expression of hatred. Moreover that the students responsible 
for hanging the now infamous nooses in Jena are unable to 
appreciate the significant brutality of such an act, that lack 
of understanding should be addressed for the good of the 
collective community.
    Professor Ogletree, it is not easy for us to put ourselves 
in the shoes of others, but I believe you have crystallized as 
well as it can be written, not necessarily felt. And your 
comments there, I think, need to be taught in the classrooms, 
they need to be--views exchanged among parents and they need to 
be remembered by the Members of Congress when we get to the 
point of creating additional policy. So I wanted to thank you 
for your testimony, and Mr. Chairman, my time is over.
    Mr. Conyers. Thank you so much. The Chair recognizes a 
senior Member of the Judiciary Committee, the gentleman from 
California, Howard Berman.
    Mr. Berman. Thank you, Mr. Chairman. I was wondering if--
there is a discordant two themes that sort of run against each 
other in this, and I'm wondering if you could, Mr. Washington, 
perhaps, or Professor Ogletree or Mr. Cohen or Reverend Moran, 
resolve this for me. On the one hand, we hear about all the 
efforts going on now for dialogue and reconciliation, the work 
of the community relations service. And at the same time, we 
hear that the people of Jena and the leadership of Jena thinks 
of this as childish pranks, not something fundamentally 
indicative of racist views and feelings. Professor Ogletree 
talks about the benefit of people learning the symbol of this 
noose or the history of lynches in the south, the full 
implications of what that meant. Are these efforts at dialogue 
dealing with that? And if these dialogues are taking place, why 
is this view held that the people of Jena don't--and the 
leadership of Jena don't fundamentally feel there is anything 
wrong? I'd also like to hear from the people involved in 
coordinating this effort.
    Mr. Ogletree. I'll make a brief comment. It reminds me of 
Harriet Tubman who was responsible for freeing so many slaves 
from the south to the north and her famous statement was I 
could have freed a lot more if they realized they were slaves. 
And I think that tells us something about what is going on 
here. There is the unconscious bias that people don't realize 
there is a problem. And I think that what is going on is good, 
but I would actually look forward with this Committee's support 
to joining Mr. Washington in Jena and other places to have a 
dialogue and talk about the history of lynchings. It is not the 
children. It is the families, the community. If you don't 
recognize you have a problem, you can't begin to address it, 
which is one of the major aspects. And the second part is that 
I agree that there is a victim in this case who was brutally 
beaten, that the individuals who have been charged aren't 
saints or martyrs. They are young kids who are involved in 
conduct that needs to be addressed.
    I think the fact that we've ignored the community's 
problems is what created this opportunity for disagreement. And 
I think what Richard Cohen and others are doing--I think that 
we can do something that we have expertise in to teach people 
how to think about race in ways they probably have never 
thought was necessary. It is not just Mychal Bell scored the 
touchdown on the football field which they'll all applaud, but 
seeing him as a young man that is more than the sum of the 
crime with which he has been charged.
    Mr. Berman. Mr. Washington?
    Mr. Washington. The conflict of which you speak is, of 
course, not new. It exists all over the country in my humble 
opinion. What we told the Jena folks in our first education 
forum earlier this year was that in these kinds of things, good 
people have to stand up and do the right thing and articulate 
very clearly what is right and what is wrong. What didn't 
happen in the Jena community when the nooses were hung was just 
that. So now we move forward with this idea of how do we solve 
this--how do we go back in time, which we can't, but how do 
we--if this happens again, get people to say these kinds of 
things are wrong.
    I think Professor Ogletree is exactly right, that we have 
to keep talking about it, keep pushing it. We can use the 
criminal justice system to a degree, but at the end of the day, 
as the blunt instrument which is really not appropriate for a 
long-term resolution in communities like Jena. So this is going 
to be a little bit of an experiment for us, at least in my 
office and in the civil rights division, but not in CRS, I 
don't think.
    Mr. Berman. Let me just ask you. I only have another few 
seconds. Put aside the issue of juveniles. In your view, is the 
act--is this act of hanging the noose a hate crime?
    Mr. Washington. Yes, It is a hate crime.
    Mr. Berman. Under existing Federal law?
    Mr. Washington. Under existing Federal law. We have--I 
think we have stated that publicly. And we've not all been in 
agreement as to how strong the evidence is to support the 
elements and move forward. But, yes, hanging a noose under 
these circumstances is a hate crime.
    Mr. Berman. Thank you.
    Mr. Conyers. The gentleman's time has expired. The Chair is 
now pleased to recognize Howard Coble, who has been on the 
Committee for quite a while, and he is from North Carolina, and 
we welcome him for his questions.
    Mr. Coble. Not as long as you've been on the Committee, Mr. 
Chairman. Thank you, Chairman. Thank you all for being with us 
as witnesses. Racial disharmony services no good purpose. Mr. 
Chairman, I'm going to make a certain statement here. If I were 
compiling a group of witnesses to encourage the diminishing of 
racial disharmony, I don't think that Mr. Sharpton would have 
made my cut. But that is a personal opinion, Mr. Conyers. Good 
to have you all with us.
    Mr. Conyers. He may be here shortly.
    Mr. Coble. They may be looking for him. Americans of 
goodwill prevail in both communities, the African American 
community and the Caucasian community. Unfortunately, there are 
troublemakers, enticers of tension, Americans of bad will in 
both communities. But Mr. Chairman, I believe the latter group 
does not constitute the majority.
    Ms. Krigsten, are there any suggested potential regulations 
that the Department of Education might issue to help address 
some of the problems discussed today are to prevent future such 
problems from occurring?
    Ms. Krigsten. At this time, I'm not able to speak directly 
to the Department of Education. My expertise is with the 
Justice Department where I've been employed for the last 7 
years. What I can tell you, Congressman, is that the Civil 
Rights Division's Educational Opportunities Section is actively 
involved in this case. There is a Federal desegregation order 
in place in the LaSalle Parish and the Educational 
Opportunities Section has taken it upon itself to initiate a 
review of that desegregation order. That review will be 
comprehensive. It will look at all parts of the school, and at 
that time, it will determine whether appropriate relief is 
needed.
    Mr. Coble. I thank you for that. Mr. Washington, how many 
students were involved in the hanging of the nooses?
    Mr. Washington. There were two students who hung the nooses 
and one assisted by driving there. So three.
    Mr. Coble. Was the student who was the victim of the 
battery or the schoolyard fight, was he one of the ones that 
hung the noose?
    Mr. Washington. No, sir.
    Mr. Coble. Now, one of the--one of the members of the Jena 
6 was tried initially as an adult, is that not correct?
    Mr. Washington. That is correct.
    Mr. Coble. That is ongoing now as a juvenile matter?
    Mr. Washington. As far as I understand, that's correct.
    Mr. Coble. Reverend Moran, let me ask you this. Has the 
Federal Government helped local officials who are trying to, 
for want of a better way, of keeping this thing from spinning 
out of control?
    Reverend Moran. From my understanding partially. But there 
is a cry for peace, love and harmony, but there is not a cry 
for justice. There is justice. We talk about getting dialogue, 
we talk about us meeting one another, Black ministers and White 
ministers, but we don't talk about the justice and the 
injustice taking place now.
    Mr. Coble. Mr. Cohen, do you want to add--you or the 
professor want to add anything to this before my time expires?
    Mr. Cohen. I think Reverend Moran is much closer to the 
situation there and, you know, I'm sure he has an accurate view 
of it.
    Mr. Coble. Professor, I'll give you--professors always get 
the last word.
    Mr. Ogletree. I doubt it. But I will say that your question 
raises an important issue and that is part of our suggestions 
here is to simply not have dialogues but to use those dialogues 
to think about some ways to modify our Federal law. One thing I 
mentioned in my written testimony is look at the Gun Free 
Schools Act which was designed to look at weapons used in 
school data. The reality is that there are a lot of people that 
were suspended for crimes not involving weapons and the 
question is whether or not the laws that you have passed are 
being used in ways that show unequal application to Blacks and 
Whites.
    So I would say look at the data. And I think even the idea 
that you're going to change the law to look at who is being 
suspended, I bet it will change. I bet there will be a 
remarkable change when they realize that someone is paying 
attention to why a child is removed from school rather than 
dealt with inside the school. I think that is a very good thing 
you could do and others could do on this Committee.
    Mr. Coble. Thank you, Professor. Mr. Chairman, I want you 
to take note that I'm yielding back prior to the illumination 
of the red light.
    Mr. Conyers. The Chair takes note. Without objection, the 
testimony of Reverend Jesse Jackson of Rainbow Push will be 
entered into the record.*
---------------------------------------------------------------------------
    *The information referred to was not received prior to the printing 
of this hearing.
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    And the Chair recognizes the Chairman of the Constitution 
Subcommittee of the Judiciary Committee, Jerry Nadler of New 
York.
    Mr. Nadler. Thank you. My first question goes to Ms. 
Krigsten. You've testified and we have plenty of reports that 
Federal officials examined how Jena High School administrators 
administered discipline. These officials did not find it 
unusual that the students responsible for hanging the nooses 
were disciplined only with suspensions. Punishments that were 
awarded by the school superintendent to overrule the 
principal's original expulsion recommendations. Did Federal 
officials find that the decision to expel the Jena 6 for a 
school fight was a proper and equitable punishment?
    Ms. Krigsten. As you mentioned, there was immediate 
discipline in this case after the students who hung the noose 
were identified. One of the things that the Department is doing 
is reviewing that discipline in light of other discipline that 
has been meted out in other situations. So the first part of my 
answer is that the Educational Opportunities Section in their 
review of the Federal desegregation order will be looking at 
this variation. The second thing that I want to point out is 
that the Federal--the decision not to pursue charges in this 
case was not based on a decision whether expulsion versus 
suspension was the appropriate penalty. The judicial system did 
not ever reach that particular issue.
    Mr. Nadler. Thank you. Now title 4 of the Civil Rights Act 
prohibits discrimination by public elementary and secondary 
schools and public institutions of higher learning. In a 
meeting with Members of Congress, several Jena parents 
complained that the LaSalle Parish school board did not respond 
to their complaints about the racial climate at the high 
school. Has the Civil Rights Division opened a title 4 
investigation to determine whether there is a statutory Federal 
role in calming the racial climate at the school?
    Ms. Krigsten. At this time, the Civil Rights Division is 
using all of the tools at its disposal to address issues in 
Jena. One of those tools, as I've mentioned, is a review of the 
Federal desegregation order. At this time, that is the step 
that the Department is taking to review all of the issues 
surrounding the school. If it is discovered that are violations 
of that order or additional violations of law, the Department 
will take appropriate action.
    Mr. Nadler. Thank you. Mr. Washington, in your testimony, 
you stated that the Department declined to pursue charges in 
the Jena High School noose incident after learning that the 
nooses had been hung by juveniles. Earlier reports indicated 
that the Department did not bring hate crimes charges because 
the incident failed to meet the ``threat of violence 
required.'' For the record, can you please state did the noose 
incident meet the Federal hate crime requirements, and but for 
the offenders being juveniles, might hate crimes charges have 
been pursued?
    Mr. Washington. Yeah, I think you might be reading an old 
media report where some misunderstanding occurred there was 
discussion about the elements of a hate crime given this 
particular circumstance and we had disagreements over the 
strength of the element, the evidence to support various 
elements of the crime. To answer your question directly, if 
these acts has been committed by others who were not juvenile, 
this would have been a Federal hate crime. We would have moved 
forward at the end of the day we still would have had to make a 
disagreement over the strength of the evidence. But 
nevertheless, it would have moved forward.
    Mr. Nadler. Thank you. I have two other questions for you. 
The Jena situation has spawned a series of other incidents, a 
truck driven on the roads trailing nooses for instance was 
reported. Are there other Federal statutes, other than 18 USCA 
245 that we referred to a moment ago that could be used to 
prosecute hate violence?
    Mr. Washington. Yes. There is a series of statutes under 
the United States code, among them include 18 USC 241, 242, 
245, 247 for church property and things of that sort. So, yes, 
there are, sir.
    Mr. Nadler. And finally, do you think that there is 
anything that we can do in strengthening those? In light of 
your investigation of everything, should Congress amend or 
strengthen these existing statutes?
    Mr. Washington. I think two things have to occur first. 
First, what is occurring inside the civil rights division is 
that we're asking ourselves those same kinds of questions. I'm 
sure the Department of Justice will bring those ideas to 
Congress as they blossom. And secondly, of course, any ideas 
that this Committee might have, we'd certainly entertain them 
or take them back and review and discuss them for----
    Mr. Nadler. Thank you, Mr. Chairman. Just before my time 
expire, I simply want to note that we've been joined from 
someone from my city, a very distinguished citizen and witness, 
the Reverend Al Sharpton.
    Mr. Conyers. Thank you very much, Mr. Nadler. We do have 
Reverend Sharpton here. I suppose you have an excuse for your 
tardiness and that you are present because you do wish to make 
a statement. And because of that and because of your work and 
the fact that you have been to Jena and have been working not 
only with the Federal Government, but the State and local 
government, but more importantly the people of Jena and the 
children at the school, we're delighted to have you here today 
and we'd ask that at this point you give us your statement.

 TESTIMONY OF REVEREND AL SHARPTON, PRESIDENT, NATIONAL ACTION 
                            NETWORK

    Reverend Sharpton. Thank you, Mr. Chairman. First let me 
apologize. I've been on the tarmac in New York for the last 2 
hours. So it was the airlines, not me that is responsible. But 
I realize that this Committee doesn't have oversight over the 
airlines, so I won't belabor the point. First let me say that I 
wanted to come today, along with Martin Luther King, III, and 
the lawyers for Mychal Bell because we are--among other groups, 
asked this Committee to hear because we think this is a serious 
problem that goes beyond demagoguery and profiling. I was 
called in the summer by the parents of Mychal Bell who asked me 
to come to Jena because they felt their son had been treated 
unjustly. And we responded to that call.
    They felt that the government in Jena, the State government 
in Louisiana, as well as the national government did not hear 
their cry. Any time we are in a situation where young people of 
the same age face different levels of justice, then we are 
experiencing in our opinion the undermining of the constitution 
and certainly the drawback of the dream that many of us fought 
for and continue to fight for. It seemed inconceivable to us 
that young people could be charged as adults but other young 
people could not be charged at all. When you have a system set 
up where you are too young to be charged with a bias crime, but 
you're the same page and can be charged as an adult for 
attempted murder, that speaks to some level of the justice 
system having to address that. And when they were given a court 
appointed attorney that did not raise that, they were later 
able to get Attorney Scott, who sits behind me and Attorney 
Lexing-Powell, who sits behind me and able to successfully 
bring that into the third circuit and overturn the adult 
conviction of Mychal Bell after serving 10 months in jail.
    But I would beseech this Committee to look into the fact 
that there are Jenas all over the country. It's the hangman 
nooses at Columbia University in New York. There is even a 
hangman noose at the site of 9/11. It's in North Carolina. It's 
in California. All kinds of reports. And what has been most 
troubling is the silence of the Federal Government in the face 
of this.
    Now, this is bipartisan. In the Republican administration 
of Dwight Eisenhower, Dwight Eisenhower sent the government 
into Little Rock. John Kennedy sent in the Federal Government 
and the justice system was involved. So did Lyndon Johnson. 
What has happened in Jena and what has happened all over this 
country, we've not heard one Federal response. It is almost 
like the national government is not in the country while we're 
watching nooses on the news every night, while we're watching 
hate crimes. And if we can't appeal to the Federal Government, 
where can we go? It has been rationalized by those in Jena some 
that these nooses was a prank, a prank to who? Grandchildren of 
people who saw their grandparents hanging on nooses? If there 
is a pranks, if there is a joke, the joke is if we could 
represent to the world that we're the land of the free and home 
of the brave, but we can't protect youngsters in Jena, 
Louisiana, and we can't stop people from hanging nooses and our 
Federal Government after 50 years of bipartisan tradition of 
protecting people from States rights has now decided it can no 
longer protect people from States that decide they can 
prosecute some 16 year olds if they're Black as adults but 
can't prosecute other 16 year olds if they're White, same age, 
but they qualify as juveniles, do we want harmony? Absolutely. 
Do we want the races to come together? Absolutely. But you 
cannot achieve racial justice by getting a premature racial 
quiet.
    There is a difference between peace and quiet, Mr. 
Chairman. Quiet means shut up and allow a two-tier justice 
system to continue to exist. Justice means we must have an even 
playing field and the Justice Department at the behest of this 
Committee needs to step into Jena and the Jenas of this country 
and establish that the Federal Government is still in charge 
and the States did not win the Civil War. Thank you.
    [The prepared statement of Reverend Sharpton follows:]
               Prepared Statement of Reverend Al Sharpton
    Good morning Mr. Chairman and members of the Judiciary Committee. 
On behalf of the National Action Network and its Chairman Reverend Dr. 
Franklyn W. Richardson, Jr., and individuals throughout this great 
nation of ours who face the awful prospect of pursuing the American 
dream while confronting the nightmare of bigotry and racism, I thank 
you for conducting this hearing today.
    Joining me are Martin Luther King III, a respected civil rights 
leader in his own right and the son of Dr. Martin Luther King, Jr., and 
Charlie King, former candidate for New York State Attorney General and 
Acting National Director of National Action Network. It is because of 
the seeming continued miscarriage of justice in Jena that I and other 
civil rights leaders requested these congressional hearings and federal 
government intervention in this very troubling case.
    At the outset of my testimony, it is important to note that for the 
last fifty years, federal protection of civil rights over parochial 
states' rights has been a bipartisan effort that has improved and 
united our country. When the ``Little Rock 9'' schoolchildren needed 
the federal government to ensure that they could go to an integrated 
public school, it was Republican President Dwight Eisenhower who 
protected their civil rights, and our national education system 
improved. When Blacks in the South in the '60s sought to exercise their 
civil rights in the voting booths, at lunch counters and in interstate 
transit, Democratic Presidents John F. Kennedy and Lyndon Johnson 
ensured those rights were
    exercised and protected, and we began to grow together as a 
society.
    And now, just as when Dr. King and other civil rights leaders in 
Dr. King's time urged the federal government to step in when local 
governments either could not or would not halt an onslaught of racism 
and bigotry, we are here today to urge the federal government to 
intervene in Jena and in all the other towns like Jena throughout our 
country. We are here today to ask the federal government to help us put 
an end to the dramatic increase in hate and bigotry taking place 
throughout the nation.
    Hate crimes are on the rise throughout the land. A noose was hung 
on the Ivy League door of a Columbia University professor last week, 
another noose was left in the bag of a Black Coast Guard cadet, and yet 
another noose was found on the office floor of the officer who was 
investigating the situation. Last month, nooses were hung on a tree on 
a Maryland college campus, in the Long Island police department, in 
several places in North Carolina, and on a utility pole at the Anniston 
Army Depot in Alabama. In Ft. Pierce, Florida and Palmdale, California 
youth faced racially charged instance of excessive force by security 
guards and the police. In Florida a young African American girl was 
violently punched and sprayed by a police officer and in California a 
three students were overzealously arrested with force and called 
``nappy headed.'' There are also the Martin Lee Anderson and Genarlow 
Wilson cases, and just last Sunday, a Black high school football team 
from Harlem, NY went to play an all white team in Staten Island to find 
the ``N'' word scrawled on their team bench.
    For those who think these assaults do not affect them because they 
either do not live there or they are not a person of color, they are 
mistaken. When Dr. King was alive he said over and over again that 
injustice anywhere is a threat to justice everywhere, and he was so 
correct in preaching this that he lost in life in this cause. When the 
civil rights of one person are violated, that violation affects the 
moral fiber of our country and raises the possibility that the civil 
rights of any one of us could be violated as well.
    Civil rights violations unchecked and not responded to also damage 
our country's standing throughout the world. I have just returned from 
an international conference of Caribbean leaders and heads of state 
where we all watched on television images and discussion of nooses and 
the tragic obvious increase in hate crimes in America.
    Nooses, the ``N'' word, a Klansman's hood, and the burning cross 
are the clearest symbols of hate for Black America.
    Some down in Jena have called the hanging of nooses from a 
schoolyard tree a ``harmless prank.'' But if the Jena noose hanging is 
a prank, then this cruel joke is on our entire nation, because our 
federal government and we have been unable or unwilling to protect 
civil rights in the tradition of Presidents Eisenhower, Kennedy and 
Johnson.
    As the President of National Action Network, one of the leading 
civil rights organizations in the nation and as a former candidate for 
President of the United States, I have seen firsthand grave injustices 
throughout this country. I have worked with victims of police 
misconduct and brutality and with other individuals who have been 
subjected to other civil rights abuses. In all of those cases, whether 
I agreed or disagreed with the ultimate outcome, I never once believed 
that our government, our laws or our judicial system were being used as 
instruments of bigotry or racism, or that they were incapable of 
correcting civil rights abuses.
    But that has changed with the events in Jena, in Georgia with the 
Genarlow Wilson case and in Palmdale, California. These cases cry out 
for the need for federal jurisdiction and enforcement because local 
efforts have either failed or been purposely obstructed.
    In the interest of time I will devote my testimony today to the 
ongoing tragedy and abuse in Jena, Louisiana.
    In Jena, I believe that we have witnessed, and are continuing to 
witness, a state judicial system that has not protected the civil 
rights of six African American boys, the ``Jena 6'', and this breakdown 
has had a chilling effect on the civil rights of all Jena residents 
and, by extension, on the civil rights of all of us. For those who are 
properly outraged by the acts of the prosecutor in the Duke case, the 
prosecutorial actions in Jena should invoke a similar response. Jena 
has a renegade prosecutor who has: overcharged the Jena 6 with 
attempted murder for their involvement in a school fight without 
weapons where the injured person went to a school event just hours 
after the fight; caused Mychal Bell to serve ten months in an adult 
prison due to his wrongful prosecution of Mychal as an adult; and kept 
Mychal in an adult jail without the possibility of bail even after 
Mychal's conviction was overturned.
    There also seems to be an abuse of judicial discretion in Jena. The 
court there has permitted the overcharging of the Jena 6 with attempted 
murder, allowed their prosecution as adults rather than as juveniles, 
and then refused bail requests of any amount for Mychal after the 
appeals court had overturned his conviction. The court subsequently re-
arrested Mychal because of an alleged violation of his parole and 
sentenced him to 18 months. Mychal is incarcerated again today as we 
have this hearing.
    But the breakdown of the state system in Jena goes beyond the 
horrible specifics of this case. The prosecutor and judge are the same 
for both the adult and juvenile courts, which means that if there 
indeed was prosecutorial misconduct and abuse of judicial discretion in 
the adult Jena 6 cases, then that very same misconduct and abuse will 
follow the Jena 6 in their juvenile cases. Although I am not a lawyer, 
I believe this is a classic and unacceptable conflict of interest. 
Another conflict of interest is that the prosecutor also was counsel to 
Jena high school and thus played a role in the modest punishment meted 
out to the white students who hung the nooses and who precipitated this 
entire travesty.
    Further, assuming that there are violations of civil rights 
occurring in the juvenile court system of Jena beyond the Jena 6 case, 
we will never know about it, because these proceedings took place 
behind closed doors and in secrecy. I am not advocating that such 
proceedings transpire in public, but if the state juvenile system is 
fraught with civil rights abuses, then it is hard to identify those 
abuses without federal safeguards and protections.
    Not every case receives national attention, and not every family 
has Al Sharpton or Martin King on their side in a civil rights dispute. 
In 2004, law enforcement agencies reported nearly 5,000 incidents that 
were motivated by racial animus, and nearly 70% of those were directed 
at African Americans. In addition, 12% of all children claimed to have 
been victims of hate crimes. But, as the Southern Poverty Law Center in 
Montgomery, Alabama states, even these dramatic numbers are likely 
grossly underreported.
    I believe the time is now for federal intervention to protect these 
civil rights. And the focus of this intervention should be in three 
areas: expanded jurisdiction over hate crimes; better federal 
protection against prosecutorial misconduct and abuse of judicial 
discretion; and quicker legal federal intervention mechanism in civil 
rights cases where local courts are not protecting or cannot protect 
the civil rights of the parties involved.
    Even though three white Jena high school students indisputably hung 
nooses from a school tree, the United States Attorney who is testifying 
today has been on record stating that he could not prosecute those 
students under current federal hate crime statutes. Putting aside for 
the moment what other statutes he could have utilized had he chosen to, 
it is clear that, if our criminal justice system can--and does--
prosecute 16 and 17 year olds for certain crimes, then those crimes 
should include hate crimes.
    When it comes to prosecutorial misconduct, it does not make sense 
to me that a prosecutor like the one in Jena can overcharge Black 
students in a schoolyard fight, never even charge the white students 
who engaged in the hateful conduct that caused all of these problems, 
and then have his conduct escape any scrutiny for prosecutorial 
misconduct. There has to be a way to deter local prosecutors from 
engaging in the blatant disparate treatment of people who come before 
them based on race.
    Abuse of judicial discretion must also be examined. A court system 
that believes it is impervious to scrutiny opens the door for the type 
of abuse that is taking place in Jena. It is my opinion that there is 
absolutely no way that the Jena 6 can enjoy a fair trial before this 
local judge who has even gone so far as to hold a juvenile in an adult 
prison without bail on charges that were overturned by a higher court 
while the prosecutor took an unreasonable amount of time deciding 
whether to appeal. Again, this type of abuse, unchecked, sends the 
message to everyone in Jena and throughout our nation that the court 
system in Jena is there to thwart justice, not protect it.
    Finally, there must be a way for the federal government to 
intervene when civil rights are being violated but the conduct of the 
local prosecutor or judge does not fully rise to the level of 
misconduct or abuse.
    Since I am not a lawyer, I leave it to Professor Ogletree and 
others to fashion the appropriate statutory remedies, but I do know in 
my heart and in my mind that federal intervention in Jena and many of 
these other cases is warranted.
    Mr. Chairman, at this time of urgency in the field of civil rights, 
I hope your Committee hearing today will prompt Congress and the 
President to make their marks in civil rights alongside those of 
Presidents Eisenhower, Kennedy and Johnson. With respect, we do not 
need any more silent witnesses to civil rights infringements and 
abuses.
    Thank you for this privilege.

    Mr. Conyers. Well, I thank the gentleman. And I remind him 
that he is in the Federal Government right now before the 
Judiciary Committee, who, I think, has responded in quite a 
timely manner and it is toward the end that the gentleman seeks 
to have happen is what we are here today to develop.
    Reverend Sharpton. Well, I thank you for that timely 
response and I know this is the first response of the Federal 
Government, and I think all of us are appreciative for the 
entire Committee, and I note Mr. Coble's welcoming of my 
presence.
    Mr. Conyers. And let us begin to re-examine, and I'm not 
sure if you had the benefit of what I thought was some 
excellent discussion, but let us begin to re-examine what 
precisely it is, and I'm sure this will come out in further 
questioning and discussion with you. What is it that the 
Federal Government is supposed to and is going to do? And now 
going back into the regular order, let me just ask a question. 
Could I seek the indulgence of my colleagues here, Mel Watt is 
going to be replacing me on the floor because we have Judiciary 
legislation, but I wondered if my colleagues would agree to go 
next?
    Mr. Lungren. I'm not sure he can replace you, but I'll be 
standing in your stead.
    Mr. Conyers. Okay. All right. Very good. The Chair 
recognizes the gentleman from North Carolina, Mr. Mel Watt.
    Mr. Watt. I thank my colleagues on the other side, and I 
thank the Chair, I guess the lesson to be learned from that is 
that no good deed goes either unpunished or unrewarded. So I'm 
going to go shortly and substitute for the Chair on the floor 
in connection with another bill. It seems to me that we have 
danced around a question of--quite a lot this morning that 
Reverend Moran seems to put his finger directly on. And that is 
the fact that there has been a lot of discussion about 
reconciliation and very little discussion about justice. And 
until this pending dispute is resolved in some way, it is going 
to be difficult, hard, if not impossible, for the Jena 
community to move forward in any kind of constructive way.
    So I guess the question I want to focus on is what, if 
anything, can we do, given the recognition that everybody on 
this panel seems to have that there were two standards being 
applied. There still seems to be two standards being applied. 
The prosecutor is still out there charging on a different 
standard. The Black kids, not having charged anything against 
the White kids. Is there anything in the current posture of the 
case that the justice department can do or do we have to just 
wait on an irresponsible insensitive prosecutor to continue to 
play this out for his own political benefit, I'm told, while 
the Nation is trying to reconcile, he is trying to be a hero.
    Is there anything that we can do in this context in this 
case to get this prosecution resolved so that we can start to 
try to reconcile? And I would address that question first to 
the representatives from the Department of Justice and then to 
the learned counsel on the panel.
    Ms. Krigsten. One of the things I want to make sure our 
testimony does here today----
    Mr. Watt. I want to make sure that we answer the question.
    Ms. Krigsten. Yes.
    Mr. Watt. I've got your testimony. I don't see an answer to 
this question in your testimony. So----
    Ms. Krigsten. The answer to the question is this. The 
Department of Justice has been active in the Jena community. 
There has been an immediate response by the Department of 
Justice and continued response to address all of the issues in 
the community. When looking at the issue that you bring to the 
table at this time, the Department of Justice is aware that 
there are requests to investigate the judicial system in Jena. 
Just last Friday, Mr. Washington was joined by the head of the 
Civil Rights Division in discussions with community leaders, 
and that is one of the topics that was brought to our 
attention.
    At this time, the Justice Department is gathering 
information and reviewing that information and is taking that 
request about whether there needs to be an investigation into 
the justice system very seriously. At this time, there is an 
ongoing criminal prosecution, and it would be premature for the 
Justice Department to say at this time whether there will be an 
investigation.
    Mr. Watt. Mr. Cohen, Mr. Ogletree, in our criminal context, 
in our justice system, are we just stopped at this moment until 
some irresponsible ``prosecutor'' plays out his own political 
agenda?
    Mr. Watt. Would you put your mike on, please?
    Mr. Cohen. I think it is on. We hope at some point that 
cooler heads do prevail. Unfortunately we live in a Federal 
system and it is very difficult to bring a selective 
prosecution case and stop a prosecution in its tracks. I know 
that Mr. Scott, Mr. Bell's lawyer, and many of the other 
lawyers are trying to file motions to recuse the district 
attorney. They've been unsuccessful so far. I think there will 
be motions filed to change the venue and get the case out of 
Jena.
    I can't imagine that those won't be granted. You know, 
ultimately, the wheels of justice grind slowly unfortunately. 
They're going to go through the Louisiana appellate courts. And 
if there is not justice there, there will be Federal habeas 
actions brought. I just hope that the kids, in the meantime, 
can bear up. But I think it is not an obvious thing that we can 
short-circuit that by some sort of Federal intervention 
unfortunately.
    Mr. Watt. Thank you, Mr. Chairman. I thank the gentleman on 
the other side for allowing me to go out of order and I'll go 
handle the Chairman's business now.
    Mr. Conyers. And I thank the gentleman from North Carolina. 
The Chair now recognizes Dan Lungren, I'm sorry, Bob Goodlatte 
of Virginia, a distinguished Member of the Judiciary Committee.
    Mr. Goodlatte. Thank you, Mr. Chairman. I'll be following 
Mr. Watt to the floor momentarily on the same issue which you 
well know. And I also want to thank you for holding this 
hearing. And I also want to say, and I think I can say this on 
behalf of everybody on this Committee on both sides of the 
aisle, that we all stand for equal justice under the law. And I 
think this is an appropriate hearing to determine the facts 
behind what occurred in Jena and what can be done to avoid 
similar circumstances in the future.
    So in that regard, I'd like to follow up on the questions 
that were addressed by Mr. Watt and to Ms. Krigsten and Mr. 
Washington, perhaps get you to be a little more precise with us 
if you can. And that is to ask each of you, in your opinion, 
what do you think were the appropriate charges to be brought 
against the Jena 6 members with regard to the assault on Justin 
Barker?
    Mr. Washington. Congressman, we have done what we can as 
hard as we can not to come up with opinions regarding 
prosecutorial discretion and things of that sort in this 
particular case. What we can say----
    Mr. Goodlatte. I'll give the other members of the panel an 
opportunity to answer too. So I want you as the representative 
of the Justice Department to have first crack.
    Mr. Washington. I understand. What we can say there is an 
loud outcry in the community that these charges are overboard, 
and we've taken that into consideration and we'll continue to 
take that into consideration as we move forward with our 
processes.
    Mr. Goodlatte. Ms. Krigsten.
    Ms. Krigsten. At this time, I can simply echo what Mr. 
Washington has said. There has been an outcry. We have received 
the message from the Members of this Committee and from the 
American public that people are not pleased with the charging 
decisions. At this time, the Justice Department is not going to 
express an opinion whether or not those charges were 
appropriate or not appropriate because it is an ongoing 
prosecution; and because we are considering the request of 
whether to investigate the district attorney.
    Mr. Goodlatte. Let me ask you a second question, and then 
I'm going to give the other members of the panel an 
opportunity. Based on your knowledge of the facts and 
circumstances surrounding the racial tensions and actions that 
occurred in the Jena community, do you believe that any 
additional charges could have and should have been brought 
against any other parties in Jena?
    Mr. Washington. We've taken the same kind of decision so 
far, Congressman. We are in the process of evaluating all of 
the rumors and innuendo and information. We continue to collect 
information to answer that--those kinds of questions as we move 
forward. As has already been indicated by Mr. Cohen here, when 
you start talking about selective prosecution and things of 
those sort, we have to be very precise in the kinds of evidence 
that we need to collect and we have to do it in a very 
deliberate, careful fashion.
    Mr. Goodlatte. All right. Bearing in mind the circumstances 
you find yourselves in, with an incomplete process, let me then 
ask you maybe an easier question. That what should we be doing 
to ensure that our criminal statutes are more uniformly 
enforced?
    Ms. Krigsten. One of the things that I think is important 
for us to note at this time is that in talking about these 
incidents in Jena, we're talking about two independent judicial 
systems. We're talking about the State system and the Federal 
system. As a Federal prosecutor for the past 7 years, in fact, 
a prosecutor for my entire career of 12 years, I am very 
familiar with the idea that there needs to be uniformity in the 
application of law. But the uniformity of which Mr. Washington 
and I are concerned is the uniformity in applying Federal law. 
And in this case, we believe that we are operating under the 
correct principles of Federal prosecution. There is a concern 
about how the State system is making their decisions. And it is 
important for us to draw this distinction because it is not our 
concern as Federal prosecutors that there is uniformity between 
the Federal system and the State system.
    Mr. Goodlatte. Let me pass those questions on down the 
line. Mr. Cohen.
    Mr. Cohen. Probably simple battery would have been more 
than sufficient. My microphone seems to be having a problem. I 
have--I think simple battery would have been more than 
sufficient. Aggravated battery, of course, requires both 
serious injury and a dangerous weapon. I don't want to minimize 
any injuries here. Everyone knows Mr. Barker left the hospital 
under his own power with no broken bones and no stitches. Also 
that the dangerous weapon here was tennis shoes. One can always 
claim that anything can be used in a dangerous fashion. But I 
think that simple battery would have been more than sufficient 
under the circumstances here.
    Mr. Goodlatte. Thank you. Reverend Sharpton.
    Reverend Sharpton. I would--as not being one of the learned 
counsels at the table, I wouldn't even venture to guess what 
would be appropriate. I think it would be appropriate that 
there should have been some kind of penalty on a juvenile level 
if, in fact, it occurred. I think that what I would like to 
address is the second part of the question. I think that the 
Federal Government and the Justice Department should review the 
laws that protect juveniles from hate crimes. I've seen where 
people that have been involved in drug trafficking has gotten 
around those laws by using kids.
    Are we now going to have a society where if you want to 
hang up a noose or paint a swastika, you use somebody underage 
to do it and therefore we can permeate society with hate by 
just playing around this juvenile law? Does the Federal 
Government have the same requirement that you have to be grown 
to commit a hate crime? If it does, we need visit or revisit 
whether that law protects us. If it does not, then does the 
State of Louisiana law supercede Federal law? I think they can 
immediately do this.
    These nooses were hung over a year ago, sir. So I know that 
the wheels of justice may turn slow, but it seems that it is at 
a standstill because to deal with those nooses does not require 
interfering in any of the prosecutions of the local district 
attorney, does not take away any of the power of the 
prosecutor. It is to say that it happened over a year ago, is 
State law constitutional and is Federal law outdated where you 
now have to be grown to commit a hate crime in America, I think 
that that is a threat to all of us that are in groups that have 
been targets of hate.
    Mr. Goodlatte. Thank you. Mr. Chairman, I believe my time 
has expired Unfortunately. I'd like to continue this on down 
the line.
    Mr. Conyers. Could we--let me allow you enough time to get 
to the two other witnesses.
    Mr. Goodlatte. If they'd care----
    Mr. Conyers. If you have a response.
    Mr. Goodlatte. Either of those questions.
    Mr. Ogletree. To both questions. In the first case, it 
seems to me, along with Richard Cohen, battery seems to be the 
appropriate charge. These were dramatically overcharged on the 
Jena 6. On the other hand, the second question, Robert Bailey, 
Jr., was assaulted with a bottle, had a gun put on him and 
those individuals received little or no punishment at all. So 
race has been a factor in the way punishment has been meted 
out. That is why there is no justice. There is no justice when 
anybody can look at these individuals and see that the amount 
of the punishment they are exposed to is a direct correlation 
to the race of the person who is the victim and the race of the 
person who is accused of the defense. And that is the problem 
at Jena that we keep ignoring.
    Reverend Moran. I think that the punishment that was given 
to the White children who hung the nooses, it was dealt out by 
the school system by suspension and whatever other means of 
punishment that was given to them. I think that the Black 
students should be treated the same. There should have been 
some type of educational status--educational punishment given 
to them. I don't believe that the law should have been part of 
what took place inside of the school when it was, in fact, a 
schoolyard fight. Also--we must also look at the fact that the 
third circuit court of appeals has already ruled out that 
Mychal Bell was illegally charged, but nothing has been done 
about that as of this point. Things are steadily rolling and 
the D.A. is steadily putting out punishment for even Mychal 
Bell. That is very unjust.
    Mr. Conyers. Thank you, Mr. Goodlatte, for your question. 
And that is why I wanted the entire panel to respond to it. The 
Chair recognizes the Chairman of the Crime Committee, Bobby 
Scott of Virginia.
    Mr. Scott. Thank you, Mr. Chairman. I thank all the 
witnesses for their testimony. I guess I had a fairly specific 
question. That is, if you can show that the charging decisions 
were done in a racially discriminatory way, would sections 1983 
and 1985 be available as a remedy? I'll ask Mr. Ogletree and 
the Department of Justice.
    Mr. Ogletree. In my view, the answer is yes. It would take 
a lot of effort to get that done, but that is a part of the 
basis of all of this testimony, that there are Federal statutes 
that have not been used and can be used to look at specific 
civil rights violations that could have been and should have 
been considered and still can be considered in what occurred.
    Mr. Scott. And how would 1983 and 1985 be used?
    Mr. Ogletree. Well, there is a separate civil rights issue 
here in terms of how these individuals lost their basic rights 
as citizens. I think if you look at the statute and look at the 
conduct here, it would require the Department to take a look at 
what occurred and do a thorough investigation or something. I 
am not sure they've done an 83 or 85. And then see what sort of 
remedies would be available for those who have been 
inappropriately punished and for those who have not been 
punished.
    Mr. Scott. We know that--this is a hypothetical question. I 
know the case is being tried in court. If it could be shown 
that the charging decisions were made in a racially 
discriminatory way, I'd ask the Justice Department to comment 
on sections 1983 and 1985.
    Ms. Krigsten. I hesitate to speculate at this point whether 
someone could be charged either civilly or an entity can be 
charged criminally under the Federal Code in this specific 
incident. What I can say----
    Mr. Scott. If it could be shown. That has to be shown in 
court whether or not it is true.
    Ms. Krigsten. Yes. One of the concerns in my providing an 
answer directly on this issue is that any decision about 
whether the statutes can be used would depend on the 
individuals who are found to have participated in these 
decisions. And there is an entire juvenile and adult criminal 
justice system that people have indicated may be troubling in 
Jena and because I don't want to be in a position where I'm 
specifying precisely who may be responsible----
    Mr. Scott. I'm not asking for that. I'm asking whether or 
not you can show that a prosecutor has charged people in a 
racial discriminatory way, whether or not 1983 and 1985 would 
be available as remedies.
    Ms. Krigsten. I think there are civil remedies available 
for situations.
    Mr. Scott. And what would have to be shown?
    Mr. Washington. First of all, I'm no expert here, but I'll 
tell you what we've discussed so far. Yes, the answer to your 
question is yes. If we can prove that charging decisions are 
made in a racially discriminatory manner, then that leads to 
the strong possibility that we could move forward either under 
the statutes you cite or some other statutes in the United 
States Code. You've asked the second question, what would we 
have to--what evidence, I presume, that is your question, what 
evidence do we have to come up with? The law seems to indicate 
to us that we'd have to prove that the actor, whoever that 
would be, and I'm assuming you're talking about a district 
attorney, set about to charge one group of persons in a 
different way than another group of persons.
    So for example, if the district attorney said I'm going to 
charge African Americans more rigorously than White Americans, 
then, yes, that would be a violation of law.
    Mr. Scott. And what would be the sanction?
    Mr. Washington. Again, I'm not the expert here for that. In 
some cases, there could be potentially a criminal sanction. In 
other cases it would be probably some order to supervise or 
remove the district attorney. I'm just not sure about how we'd 
go about doing that.
    Mr. Scott. My colleague from New York asked about the 
education system. If you can show that people were denied equal 
opportunity at education because of the hostile environment, 
what sanctions would be available to the Department of Justice?
    Ms. Krigsten. At this time, the review of the educational 
system in LaSalle Parish is being conducted under the view of 
the Federal desegregation order. So there will be specific 
relief available depending on what the outcome of that 
investigation shows. The attorneys who are working on this case 
will have the range of options for going into court for 
specific relief on a particular issue all the way through 
perhaps the contempt of court motion.
    Mr. Ogletree. Mr. Scott, if I could have just one quick 
response to that as well. Mr. Scott, representing Mychal Bell, 
reminded me that, in fact, that the third circuit court of 
appeal concluded that this prosecutor violated the law in 
charging the Mychal Bell as an adult in the first instance, 
number one. But even more importantly, it would be interesting 
to see whether this prosecutor in the record has ever, ever 
prosecuted any White person with an attempted murder case for 
what was, in effect, a fight on a schoolyard premise.
    So the foundation is there to look at this. The United 
States versus Armstrong, a case from the Supreme Court a decade 
ago, talked about the 1983 actions and what is the threshold 
here. It seems to me this record needs, as I said earlier, at 
least a foundation to make that claim.
    Mr. Scott. And what would be the remedies under 1983 or 
1985?
    Mr. Ogletree. Well, I think the remedy is beyond 1983 and 
83 in terms of violation of civil rights. One of the things 
that we haven't even discussed today is that in virtually every 
State in this country, any person, not just lawyers and judges, 
can file a complaint that could lead to disbarment and other 
penalties. Michael Nifong in North Carolina, as you know, was 
disbarred and punished for his involvement in the Duke lacrosse 
case. And that happened before anybody was taken to trial or 
convicted.
    So the idea of waiting until after it is over is one 
strategy, but the reality is that there are things that can and 
should be done for judicial misconduct. The third court of 
appeals is all rude about the judge's error, et cetera. So this 
is a record that is replete with judgments already made showing 
disparities based on race. People should not have been charged, 
which is only one side of it. But also we do know the other 
side, that people have been charged and not charged for similar 
conduct and race is a factor. So there is a cumulation of 
material here that would at least say that the civil and 
certainly at least consideration of some criminal prospects are 
appropriate as well.
    Mr. Conyers. Thank you very much. The Chair recognizes Dan 
Lungren, a Member of Congress, then a State attorney general 
for California, and then a Member of Congress back on Judiciary 
Committee again.
    Mr. Lungren. Thank you very much, Mr. Chairman. I missed 
you so much I had to come back. I appreciate it. This is a very 
difficult issue any time you have race interjected in the 
criminal justice system. I can recall amidst one of the biggest 
racially charged issues we had in California, the Rodney King 
case, I had two cases turned over to me, and we had to make a 
charging decision on whether Rodney King got to be charged with 
further crimes in unrelated circumstances and we made the 
judgment there was not sufficient evidence.
    And I remember getting a lot of mail on that. Another high 
profile case in our State was the O.J. Simpson, we were asked 
to take over the question of whether at that point in time a 
decorated detective of the Los Angeles police department had 
committed perjury on the stand. And we did and we got a 
conviction on that. I probably got more hate mail on that than 
anything else. And in both cases, the mail was really racially 
tinged. But we made our decision irrespective of the race of 
the individuals involved and tried to look at the evidence. I'm 
troubled by the atmosphere that existed in this high school 
because it evidently led to a terrible situation with respect 
to racial relations and there were a number of victims here and 
one of the victims is Justin Barker, as I can see it.
    Unless I'm wrong, he didn't have anything to do with the 
nooses. Unless I'm wrong, the evidence suggests that he walked 
out of the gymnasium door and was as someone said blind sided 
and knocked unconscious to a blow to his head and it was then 
that he was on the ground and that he was kicked and some 
people say he was kicked with people who had tennis shoes and 
therefore shouldn't lead to the level of charges. But it sounds 
to me more than a simple assault or at least you could 
potentially charge someone with more than simple assault in 
that particular circumstance. Whether or not attempted murder 
is appropriate under the laws of that jurisdiction, I don't 
know, because I never prosecuted under that jurisdiction.
    But I think it has been too easily stated here that this 
was just a simple assault. At least I would look at it as a 
prosecutor to see whether it was more than that. But my point 
is here you have, as far as I can tell, a student who never was 
involved in the incident of alleged hate crime, unless I'm 
mistaken, who is set upon by others and one of the defenses is 
they were upset because of the atmosphere that has been created 
and that just goes to show you when you don't have order in a 
situation, when you don't have respect from a racial 
standpoint, you have a lot of unintended victims that end up 
there. And we need to talk about justice being done to all of 
them, it seems to me.
    The problem of the Justice Department is an interesting 
one, because I had a similar situation. As Attorney General in 
California, I could intervene on any District Attorney in the 
State who did not bring forward criminal charges, but I 
couldn't act to stop him from bringing charges. And the 
argument was that if the D.A. Wasn't doing his job in bringing 
charges where they ought to be brought, there was no 
alternative except the Attorney General to come in and do it, 
number one. But if someone overcharged or didn't do an 
appropriate job of prosecuting, you had the jury that could 
look at it or the trial judge to look at it or the appellate 
that could look at it on a State level and then Federal level. 
So there's sort of a system whereby we try and regulate 
ourselves here, and I'm not sure there's a simple answer to 
this question.
    I would like to ask Professor Ogletree, someone I consider 
a friend. This is kinda fun. I get to ask you questions, 
instead of you asking me questions.
    Mr. Ogletree. This is true.
    Mr. Lungren. Because you have gone from the specific to the 
general and you've talked about, across the Nation, Black 
students, Black males being charged more harshly or being dealt 
with more harshly than White counterparts. I'm going to ask you 
a question that's kind of a difficult question to ask, because 
it invites a lot of interpretation, but when we were looking at 
this issue across the board of juvenile crime in California, 
one of the things that we looked at was the breakdown of the 
family structure, irrespective of race, the breakdown of the 
family structure and that young people who----
    First of all, let's put on the table there's a lot of great 
single parents out there, doing a great job and a lot of kids 
are doing well in a single-parent household, but if you just 
look at the figures you will see that children from single-
parent families have a larger percentage of drug use, 
alcoholism, interaction with the criminal justice system.
    Have you ever looked at that issue as--take race out of it 
and looking at how young people in schools come up against 
the--either the enforcement system within the schools or the 
criminal justice system, depending upon whether or not we have 
a family structure behind them that is a complete family 
structure?
    Mr. Ogletree. It is a very good question, Congressman 
Lungren. Let me just tell you what is missing from it, and we 
have looked at this. It is interesting that in many two-parent 
families, where both parents were educated and working, there 
is the same sort of drug use, same sort of violation of laws, 
but many are in private schools or other institutions where the 
laws aren't applied equally. So it's not the structure of the 
family. It's the structure of a system that considers something 
a prank or practical joke. In another context, when that 
student doesn't have a parent to come and support them, it is 
considered a felony or attempted murder.
    So I think it is too easy to gloss over saying family 
structure is the cause and consequence of the problem. It is 
bigger than that. And you look at the disparity in the 
punishment, it is a large factor of where----
    Let me give you an example of assault with a dangerous 
weapon in a school. That sounds like somebody pulled a gun or a 
knife on somebody and assaulted someone else. It could be as 
simple as a kid taking a straw, putting a piece of paper in it 
and spitting it at someone else and almost hitting that person. 
That is considered an assault with a dangerous weapon.
    In fact, a lot of the cases we have looked at at the 
Charles Hamilton Houston Institute for Race and Justice of the 
kids being expelled and suspended, it does not involve guns, it 
does not knives, they are the exception rather than the rule. I 
think the fact of the matter is that so much behavior that 
should be addressed within the context of the rules of the 
public school system are now being addressed in the criminal 
justice system. There are police on the campuses of the high 
schools and junior high schools. There's a direct process for 
people getting prosecuted.
    And so you raise a good question, and we can look at that 
more about how much family structure matters, but I can tell 
you the disparities in the individual cases are based more on 
the race and class of the person involved than they are on the 
nature of the offense that's been committed.
    Mr. Lungren. Thanks very much.
    Reverend Sharpton. May I address the Congressman on that 
one, Mr. Chairman, just quickly?
    Mr. Conyers. Yes.
    Reverend Sharpton. The National Action Network, the group I 
have, Congressman, whose Acting National Director sits behind 
me, attorney Charlie King, we have done studies on that, and we 
will make available to you the results, but we are finding that 
there may be a difference in juveniles coming from broken homes 
as opposed to full homes in the criminal justice system. But 
when you further break it down with White home and non-White 
homes, you find the same disparity that you find when you deal 
with children that are with their parents and children that are 
not, and we don't have final results.
    So the question should also be in your looking into this is 
whether race is also carried over when you get to the broken-
home status, when you look at the family mix-up, because I am 
beginning to see the trend doesn't change, and I think that's 
important.
    I might also say for the record none of us don't see Justin 
Barker as a victim. The question is whether or not there's 
equal prosecution. No one justified what happened to Justin 
Barker.
    Martin Luther King, III, has just joined us.
    We said going in Justin Barker should not have beaten. It 
had nothing to do with whether he was connected to the nooses 
or not. It is about how you have one prosecutor that seems to 
overprosecute in some cases and not in others. We are not 
trying to make a link in that. The link is the same prosecutor 
seeing different situations much differently.
    Congressman Conyers. Thank you very much.
    The Chair recognizes, Sheila Jackson Lee, the gentlelady 
from Texas.
    Ms. Jackson Lee. Mr. Chairman, let me thank you very much 
again, for this hearing.
    I respect Reverend Sharpton, and I know that in the second 
sentence of his remarks he was respecting this Committee since 
he made the inquiry early on and he recognizes that there are 
three branches of government and because of this Chairman we 
now have vigorous oversight.
    Let me acknowledge Martin Luther King, III. Having worked 
for the Southern Christian Leadership Conference, I have a 
special affinity for your family and Dick Gregory, who is here 
as well.
    Judge Leon Higginbotham said that said race matters. And I 
respect my good friend, who I will share a hearing this 
afternoon. He is the Ranking Member to the Committee that I 
chair, Mr. Lungren. All of us are looking at societal issues. 
We know Dr. Poussaint and Bill Cosby have just come out with a 
provocative book.
    I don't know if I can get through the questioning because, 
as a parent, I'm on the verge of tears. Mychal Bell is now in 
jail. Marcus Dixon is now in jail.
    My good friend, Congressman Scott, has laid the legal 
precedent; and I am not going to review that. I will say that I 
am writing legislation that deals with racial theme parties on 
college campuses. I revised it to include high schools, primary 
and secondary schools, dealing with the question of hanging 
nooses, which to date had failed to make the mark at burning 
crosses. But we recognize that nooses have now proliferated 
across America. They are in the workplace.
    And these questions will be for U.S. Attorney Washington, 
the U.S. Attorney from the Western District, and Ms. Krigsten, 
Reverend Sharpton, and he might yield to the attorneys and 
Professor Ogletree.
    Reverend Moran, let me thank you for declaring two systems 
of government, two systems of justice. Let me thank you for 
your prayerfulness, and let me thank Dr. Ogletree for using the 
word ``cancer''. Let me thank the NAACP for burying the N word, 
``nigger'', but Reverend Moran said that the children were 
called niggers.
    So let me begin my questioning by just a procedural 
question. Ms. Krigsten, when did the community relations team 
come in for the first time?
    Ms. Krigsten. The community relations team has been working 
with----
    Ms. Jackson Lee. When did it come in for the first time, 
please? What is the date that it came in?
    Ms. Krigsten. I'm going to defer to the legal counsel of 
the Community Relations Service.
    Ms. Jackson Lee. Thank you.
    Quickly, can you give an answer, please? My time is short. 
What is the date that it came in?
    Mr. Henderson. The first date it was activated was on June 
12th of this year.
    Ms. Jackson Lee. Is that 2007?
    Mr. Henderson. Actual on the ground, but we were----
    Ms. Jackson Lee. 2007, June, thank you very much.
    Ms. Krigsten, can you provide me with a detailed response 
to the calls that I made repeatedly to the Civil Rights 
Division speaking to the Assistant Attorney General for Civil 
Rights and to the FBI? Would you provide a chronicling in 
writing of your responses that you gave to my office and 
whether or not the FBI is on the ground looking into the 
treatment of Mychal Bell at this time. I don't need it in 
public statement. Just give it to me in writing.*
---------------------------------------------------------------------------
    *The information referred to was not received prior to the printing 
of this hearing.
---------------------------------------------------------------------------
    Let me go forward to U.S. Attorney Washington.
    September 2006, three nooses were found hanging. The 
principal said, let's expel them. The students were suspended. 
Then, in the fall, we had a series of fights between Black and 
White students. In late November, arsonists set fire to the 
school building. A White student beats up a Black student who 
shows up at an all-White party. My understanding is that a 
shotgun was pulled by a White man on three Black students at a 
convenience store.
    Let me ask the Chairman to put into the record, U.S. 
Attorney: Nooses, beating at Jena High, not related; noose 
incidents evoke segregation.
    Right now, I am going to ask you and I would like the 
people that I call to answer this question.
    Mr. Conyers. Without objection, it will be entered into the 
record.
    Ms. Jackson Lee. I thank you.
    [The information referred to is available in the Appendix.]
    Ms. Jackson Lee. You stated on the record that nooses equal 
hate crimes. I'm asking you now, first of all, to go back to 
Jena, Louisiana, in the symbolic position that you hold, one 
because you merited appointment, but you are the first Black 
Western District U.S. Attorney. And I'm asking you to go back 
and I'm asking you to find a way to release Mychal Bell and the 
Jena 6.
    My question, that goes down the road, I want to know why in 
the course of meetings of local district attorneys, why you 
didn't engage with Mr. Reed Walters, who may be subject to 
prosecutorial abuse, and confer with him and say, Mr. Walters, 
this is not the way to handle this case. I can see disparate 
treatment by White students being suspended back in school and 
by Mr. Bell being still in jail on an offense that he served 10 
months for, 10 months; and, therefore, the juvenile judge could 
have said, time served, and he could have been released.
    I want you to tell me why you didn't engage with the D.A., 
and I want to know what you are going to do now.
    Reverend, I would like you to tell me how they treated us 
when they came there; and, Dr. Ogletree, please tell me what 
Federal action, legally and legislatively, we can have.
    Mr. Washington, tell me why you did not intervene, not by 
way of the legal system but the consultation that the U.S. 
Attorneys have with the local district attorneys. Why didn't 
you intervene? Broken lives could have been prevented if you 
had taken the symbolic responsibility that you have being the 
first African American appointed to the Western District. I 
don't know what else to say. I am outraged, and that's why my 
voice is going up like this, literally outraged.
    Mr. Conyers. The Committee will stay in order, and the 
gentlelady's time has expired. But we do seek a response from 
the persons that she indicated.
    Ms. Jackson Lee. I thank you, Mr. Chairman; and I thank you 
for indulging the increased spirit of my questioning. And I 
thank Mr. Washington for respecting the emotion that I am 
showing here today because of the pain I feel. Thank you very 
much.
    Mr. Washington. Thank you, Congresswoman.
    I don't know where to start. You asked a lot, so I will 
start from the beginning, I suppose.
    First of all, I did intervene. I did engage the District 
Attorney. We had conversations about his charging decisions and 
things of that sort. At the end of the day, there are only 
certain things that a United States Attorney can do, that a 
Federal representative can do with respect to a State and how 
it handles its criminal justice system.
    What I will tell you however is that, just like you were 
offended when you first heard about this matter, I was also 
offended. I, too, am an American, an African American. I was 
very offended about what I heard.
    I took steps to see what we could do within the ambit of 
the kind of powers and responsibilities that I have. I am a 
child of the '60's, of the desegregation era. My mother 
marched--I'm sure like your parents did--in the 1960's when 
Martin Luther King was urging African Americans to get out and 
march for our rights.
    Ms. Jackson Lee. That gives us an extra burden.
    Mr. Conyers. Just a moment. I'm going to ask that the 
witnesses be able to finish their statements without any 
further interruption.
    Ms. Jackson Lee. Thank you, Mr. Chairman.
    Mr. Washington. Thank you, sir.
    So I am, I think, what Dr. King was trying to get us to do, 
trying to get us to be, trying to get us to become many, many 
years ago.
    Now, having said that, we still have a system of justice 
that we have to comply with. We still have rules and 
responsibilities. We still have a concept called due process. 
We have a Federal scheme of laws that I am, unfortunately, 
constrained to.
    At the end of the day, I hope I've answered your question. 
I did have that discussion that I think you were most concerned 
about.
    Mr. Conyers. Are there any other responses? Reverend 
Sharpton?
    Reverend Sharpton. Yes. I think that Mr. Washington's 
statement, Congresswoman, is most disturbing to us; and that is 
when he said that the Federal Government through he as U.S. 
Attorney got involved and there was nothing they could do. That 
is why I said in my opening statement, did the Federal 
Government or the United States or the Union win the Civil War 
or not? Because are we saying that the Federal Government 
cannot protect us against State laws that are set up unfair and 
unequal?
    It is unconstitutional to say you have to be grown to 
commit a hate crime. And what they are saying, beyond Mychal 
Bell's case, beyond Jena 6, that if you are under a certain 
age, we will allow you to operate hate with full immunity; and 
that is something I don't think the Federal Government can 
tolerate, when we are seeing nooses hung all over this country. 
That is first.
    Secondly, when they can stand by and watch this young man 
do 10 months in jail, and then the Third Circuit overturns 
that, and the same judge that was the adult judge becomes the 
juvenile judge and turns around and gives them 18 months in 
revenge because the same judge and the same prosecutor runs the 
same--the whole town. And we say we have to wait and see, while 
they are doing interviews over at CNN and others, creating the 
climate that this is fair and this is just. I think that this 
is nothing tantamount to aiding and abetting people that Dr. 
King fought against.
    And we don't have to experiment. Dr. King's son is marching 
now. We are not talking about our mamas. We are marching now. 
We marched in Jena now. We don't have to go back to back in the 
day. We're still in the day. And we need some people today to 
do what Eisenhower did, Johnson did and Kennedy did. That's 
intervene. Not just sit down and have some casual conversations 
with the D.A. And say, explain to me were you are so biased.
    Ms. Jackson Lee. Dr. Ogletree.
    Mr. Conyers. Just a moment. I've asked--Ms. Lee, your time 
has long expired, but I have to keep the control of the 
hearing.
    Ms. Jackson Lee. I agree, but Dr. Ogletree was one of the 
ones that I asked to answer.
    Mr. Conyers. I'm going to recognize Dr. Ogletree.
    Ms. Jackson Lee. Thank you, Mr. Chairman.
    Mr. Ogletree. Thank you, and I will respond very briefly.
    There are laws, both State and Federal, that could have 
been used and should have been used and can be used in the 
prosecution, particularly the young individuals involved with 
the nooses who were not charged.
    There is a Louisiana statute, revised statute 14, section 
107.2, which talks about institutions receiving Federal funds, 
protecting individuals against racial violence and threats that 
could have been used.
    There is also a Federal statute, title XVIII, that Richard 
Cohen mentioned in his report, title XVIII, section 5032, that 
also could be used to make this a 10-year felony; and even 
though they are juveniles that would not prevent them from 
being charged.
    So there are laws on the books that could have been used. I 
don't think that they are prevented from being considered now. 
That's why the Federal law exists, and I think there's a way to 
examine that, and I'm glad you raised that question.
    Mr. Conyers. The Chair wishes to announce that he 
recognizes the presence of Dick Gregory in the hearing room and 
am very pleased that he could attend.
    And the Chair also recognizes the presence of Martin Luther 
King, III, who has graciously considered to submit testimony in 
connection with this hearing.
    Welcome, Reverend King, to this hearing.
    The Chair now turns to Steve King, the Ranking Member of 
the Subcommittee on Immigration, from Utah for his comments or 
questions.
    Mr. King. Iowa in this case, Mr. Chairman.
    I thank the Chairman for recognizing me, and I also welcome 
the living examples of civil rights that are in this room. It's 
something that I have watched and followed throughout my 
development years, and it takes us into this current era.
    I've often worked and spoken and prayed for the time that 
we can put these racial divisions behind us, and I actually 
believe that we will know when we arrive there when we can get 
to the point where we can make light of this, rather than 
serious of this. And, of course, this is no time in this 
meeting room today. We've got much more of this to get behind 
us before we can get to the point where we deal with each other 
with the kind of relationship that Chairman Conyers and I do, 
man to man, person to person, human to human, people that are 
created in God's image. We should be treating each other with 
that same level of respect and dignity.
    I have to, though, ask you to look at this from a bit 
different perspective. Because it is our job to look at this 
without regard to race, if we can, and then with regard to who 
did what and when and what crimes are available for 
prosecution.
    Of all the testimony that's flowed out here today, the one 
that I would take us back to is Mr. Washington's in response to 
the question, was this a hate crime, the hanging of the nooses? 
And your response, Mr. Washington, as I have it, is, yes, 
hanging a noose under these circumstances is a hate crime. 
Could you clarify whether you're referring to Federal law or 
State law?
    Mr. Washington. I'm referring to Federal law and not State 
law.
    Mr. King. I thank you, Mr. Washington.
    And then I just turn to Reverend Moran. Would you agree 
with that statement, that the hanging of the nooses was a hate 
crime?
    Reverend Moran. Yes, I would.
    Mr. King. And is there anyone on the panel who would 
disagree with that statement?
    And, if not, then let the record show that there was no 
disagreement and that the panel is unanimous in concurring with 
the opinion of Mr. Washington that hanging of the nooses was a 
hate crime.
    Maybe I need to make a statement first. The tone that I 
pick up here from listening to this testimony is that the 
hanging of the nooses seems to be more egregious than the 
beating that took place. I think that's got to be put back in a 
perspective. The nooses were hung, by my records, on September 
1st; and the beating took place on December 4th. That's 3 
months for cool off, but we know also that there were other 
incidents in between that accelerated this.
    And I know, Reverend Moran, you testified that the 
punishment that was meted out to the White students who hung 
the nooses was done by the school and also that that would have 
been an appropriate response for the school to discipline those 
who perpetuated the beating. Would it be your position that 
that's where the issue should have stopped?
    Reverend Moran. I would think so, yes.
    Mr. King. But then I would ask, Mr. Washington, if the 
hanging of the nooses are a hate crime, as all the panel 
agrees, was the beating itself a hate crime?
    Mr. Washington. We've had discussions about that; and, in 
fact, I've had discussions with members of this panel about 
that and members in the audience; and there's some 
disagreement. I have stated in the public I think fairly 
vigorously that there were no statements made in the police 
reports that are actually taken that would get me to the 
element that the beating of December 4th was undertaken because 
of race. That's not to say we won't go back and relook at this, 
but, from our perspective, no, we did not get to the conclusion 
that the December 4th incident was a hate crime.
    Mr. King. Mr. Washington, I raise that question because it 
strikes me that an act of violence, in my view, is more 
egregious than a more passive act of the hanging of the noise. 
And I know I come from a part of the country that doesn't have 
that same sense of sensitivity.
    But I turn to Reverend Sharpton. The jury that sat in 
judgment of Mychal Bell was an all-White jury. Is that an 
issue, from your perspective?
    Reverend Sharpton. Yes, I think that the selection of the 
jury is certainly an issue, but I also think that you've tapped 
the core of my testimony, Congressman King. You have gotten the 
U.S. Attorney to agree this is a hate crime and you've talked 
about the crime of the young man being assaulted. But, let's be 
clear, it was never prosecuted as a crime. A school does not 
prosecute crimes. A school deals with discipline. The only 
crimes that were prosecuted was for the beating. So even if you 
or I would say it was more egregious, we're not talking about 
two crimes treated the same. We're talking about one crime 
being excused. The criminal justice system, Federal or State, 
never prosecuted for the hanging of the nooses. A school cannot 
take the U.S. Attorney's job.
    Mr. King. For the record here, and I'd close this because 
my time has expired, I want to make sure that those that are 
viewing and witnessing this hearing understand that the jury 
that sat in judgment of Mychal Bell, although it was an all-
White jury, was selected from a pool that was an all-White pool 
in a community that's about 90 percent White, about 10 percent 
Black, and that the Black jurors who were called to be part of 
that pool that day did not show up.
    Reverend Sharpton. There were conflicts on how they were 
called. Some said they were not noticed, and some said that 
they were relatives of Mychal Bell. His attorney is here, if 
you want to get----
    Mr. King. But the selection process, though, did not have 
the opportunity to choose a single Black on the jury. I think 
it is important to clarify that on the record, and I thank the 
witnesses all for their responses and their testimony.
    I yield back, Chairman.
    Mr. Conyers. Thank you very much, Mr. King.
    The Chair now recognizes one of the two Members of the 
Judiciary Committee that traveled to Jena, Maxine Waters of 
California.
    Ms. Waters. Thank you very much, Mr. Chairman. I have to 
thank you again for calling this hearing so quickly.
    And while I know that you are a very thoughtful, careful 
and deliberate Chair, taking all things into consideration, I 
am disappointed that District Attorney Reed Walters is not 
before us today. That's who I wanted.
    Also----
    Mr. Conyers. As you know, he was invited.
    Ms. Waters. I'm sorry, you did indicate that; and I don't 
know, Mr. Chairman, whether or not there will be more hearings, 
and perhaps you will determine that some time later, but of 
course we do know you do have the power of the subpoena, so 
perhaps that's something we could look toward for the future.
    Let me just, if I may, go back to Mr. Washington. Mr. 
Washington, I first met you when you appeared on television 
speaking about the Jena 6. If I recall what you said at that 
time was that it had been determined that no hate crime had 
been committed, is that true? Is that what you said on 
television?
    Mr. Washington. At which stage? The December the 4th 
incident or some other stage of the time line?
    Ms. Waters. Do you remember when you were on television? 
What were you referring to?
    Mr. Washington. It depends on what the question was. If 
you're talking about the December 4th incident, I have been I 
think very--fairly clear that I did not believe that that was a 
hate crime because of the statements that I had read and the 
information in those statements.
    With respect to August 31, the hanging of the nooses, the 
September 1st incident, I think we've been fairly clear that 
that had all the elements of a hate crime.
    What we're missing there, of course, if we were to proceed 
forward, would be evidence and an adult to move forward with. 
It's not that at the end of the day that is not--whether or not 
it is a hate crime, the noose hangings----
    Ms. Waters. Well, that's really what I'm referring to; and 
that's what I thought you were speaking to on television where 
you had determined that it was not a hate crime.
    Mr. Washington. No, ma'am.
    Ms. Waters. That's not what you said on TV?
    Mr. Washington. No, ma'am.
    Ms. Waters. All right, that's good. That's fine.
    To Ms. Lisa Krigsten, counsel to the Assistant Attorney 
General, in your investigation, have you taken into 
consideration what has been alluded to several times here? Reed 
Walters attempted to try Mychal Bell as an adult. There was no 
law in the State of Louisiana that would have allowed him to 
try him as an adult, as I understand it. Was he attempting to 
try him as an adult for attempted murder or for aggravated 
battery? Which was it?
    Ms. Krigsten. I can't speak for what Mr. Walters was 
attempting to do.
    Ms. Waters. Well, yes, you can. That's on the record. He 
attempted to try him as adult. What was the charge at the time?
    Ms. Krigsten. I believe the charge was attempted murder.
    Ms. Waters. Does the State of Louisiana allow for the 
trying of juveniles for attempted murder?
    Ms. Krigsten. It is my understanding--and, again, I am not 
a lawyer who----
    Ms. Waters. You should know by now. What is it?
    Ms. Krigsten. I'm not a lawyer who has ever practiced. It 
is my understanding, based on Louisiana law, that a juvenile 
can be transferred into the adult criminal justice system with 
a charge such as attempted murder.
    Ms. Waters. So you do not see that the charge of Mychal 
Bell as an adult was something, as it has been described here, 
as something that was being done for the first time, that it 
was unusual and that this should be considered in the 
investigation of how the District Attorney has used or abused 
his power?
    Ms. Krigsten. Obviously, we are considering everything we 
know about this. I am not aware of the allegation that this was 
the first time that it had been done. Obviously, we're still 
gathering information; and we are going to take everything we 
learn about this incident into consideration of how we proceed.
    Ms. Waters. Thank you.
    Have you started to look at the reported threats to all of 
the Jena 6 and some reference to them and their addresses on 
the Internet and a charge to pull them out of their houses?
    Ms. Krigsten. We have heard about these threats. The FBI 
takes these threats very seriously. There's an open 
investigation into many incidents surrounding Jena, including 
some of the threats that we have learned about. The FBI is 
aggressively investigating all of those allegations. The U.S. 
Attorney's Office is working with the Civil Rights Division.
    And, again, I cannot emphasize enough how seriously we take 
these incidents; and if we find that there's a prosecutable 
violation of Federal law, we certainly will seek to do the 
appropriate action.
    Ms. Waters. Mr. Ogletree, could you illuminate the 
discussion on the trying of Mychal Bell as an adult and the 
history of that as you know it and understand it?
    Mr. Ogletree. Yes. With the permission of the Chair of the 
Committee, I would like to have entered into the record the 
decision of the State of Louisiana Court of Appeal, Third 
Circuit, on September 14th, 2007, where it concluded----
    Mr. Conyers. Without objection, so ordered.
    Mr. Ogletree [continuing]. That Mychal Bell should not have 
been charged with aggravated battery as an adult and reversed 
that conviction.
    [The information referred to is available in the Appendix.]
    Mr. Ogletree. So that the record is clear, the Louisiana 
Court of Appeals from the Third Circuit made that 
determination; and it was clear that he was overcharged, that 
the lawyer who represented him didn't try to prevent that from 
happening as his original charge, that the court didn't grant a 
dismissal of charges as the lawyers requested, and only when it 
went to the appeals court was it finally rectified. So the 
error occurred from the time Mychal Bell was charged and wasn't 
corrected until, gosh, a year after the charges and that the 
record on that is absolutely clear; and I would hope that we 
submit the rest of the materials as well.
    Ms. Waters. Thank you very much.
    Mr. Chairman, as I close, let me say for those of you that 
are here today, you must recognize that the problem that we are 
dealing with is not simply in Jena. If you take a look at what 
has happened on this Committee today, first of all, the 
opposite side of the aisle is missing for the must part; and 
those who came in, Mr. Lungren and Mr. King, were concerned 
about Justin Barker. They came in asking questions about Justin 
Barker and even saying that perhaps we should take the hanging 
of the nooses lightly and someday we will be able to maybe kind 
of look back at this and not take it so serious.
    So I want you to understand that because just as, we're 
talking about what is wrong in this country, the 
institutionalized racism that leads us to this point, it is not 
only institutionalized racism that causes the disparate 
treatment such as in this case, but it is the kind of thinking 
that goes on in this country by public policymakers. We see 
things differently.
    We're here talking about a case of six young Black men, who 
obviously have been treated differently. We're talking about a 
District Attorney, a prosecuting attorney who appears to have 
abused his power. We're talking about nooses that have been 
hung over trees. And we have those who come in today who are 
talking about single-parent families and the fact that perhaps 
more criminality comes out of single-parent families and 
talking about perhaps Justin Barker's civil rights were 
violated. That's how they see it. We see it differently.
    Thank you, Mr. Chairman.
    Mr. Conyers. Well, I thank the gentlelady.
    And the Chair would observe that if everybody agreed with 
us, we wouldn't be here today. That's what the problem is, is 
that we're addressing we do have this grave disparity that has 
been developed as a result of this incident in which tens of 
thousands of people have alerted the Nation to the significance 
of Jena, Louisiana. And it is not to blame or pinpoint Jena, 
because there are Jenas all over this country.
    And it is to this end that this hearing to me becomes 
extremely significant in terms of how we deal with this here 
today. But what is it that we do about the tremendous legal 
analysis at the State and Federal level as to where we go from 
here and how we beef up the Department of Justice, which has 
gone through a recent trauma all of its own? I mean, we've got 
a part of the Federal Government that is in a very disabled 
circumstance. And so I appreciate the fact that there would be 
logically different and opposing views put forward, but it is 
what we do with this information that will be the test of time 
that we will all be judged by.
    The Chair's pleased now to recognize Steve Cohen, the 
gentleman from Tennessee.
    Mr. Cohen. Thank you, Mr. Chairman.
    And I just want to emphasize Congresswoman Waters said 
something about ``this side of the aisle.'' I don't know if 
she's referring to Congressman King, but I'm only on this side 
of the aisle because we have a majority.
    I want to ask the attorneys, Mr. Washington first, about 
the hate crimes. My staff and I have been looking at this for a 
couple of weeks. Pastor Derrick Hughes of Springdale Baptist in 
Memphis called me and asked, can we make this a crime, to hang 
a noose? I know that there are laws about swastikas, but don't 
they have to some specific intent not just the display of an 
object but the object with a particular intent?
    Mr. Washington. Yes, that is among the things that have to 
occur.
    Mr. Cohen. And in this situation is it because it was on 
school property that makes it a hate crime?
    Mr. Washington. What makes it a hate crime is the idea that 
there was a threatened use of force, that it was to intimidate 
and to interfere with some folks because of their race while 
they were exercising a constitutional right and that is going 
to school.
    Now, what was sort of confusing here and there is agreement 
amongst the panel, except for the fact that we don't agree as 
to whether these particular folks could have been prosecuted. 
These particular folks not would not have been prosecuted, but 
they could not have been prosecuted. It was impossible under 
Federal law as written today for us to go after these 
particular juveniles.
    Mr. Cohen. Why?
    Mr. Washington. Because they are under the age of 18.
    Mr. Cohen. Because of their age. Did these individuals make 
a threat of violence?
    Mr. Washington. Well, that is among the kind of things that 
we would have to prove in court. And we have to go in and make 
our best case, of course, and if the----
    Mr. Cohen. So the simple display of a noose is not a hate 
crime?
    Mr. Washington. That's correct.
    Mr. Cohen. Right. And so it has to be with some intent and 
something else to it.
    Mr. Washington. There are elements in the statute that we 
have to prove in court.
    Mr. Cohen. What if it was not on a school ground or in a 
Federal building? What if it was simply a noose at somebody's 
home? Would it be sufficient of their constitutional right of 
pursuit of happiness or whatever? I don't know. That's not a 
constitutional right. But would there be places that are not 
covered because of the locale of the placing of the noose.
    Mr. Washington. That's possible, but there are other 
statutes, possibly, that we'd look at if there was racial 
animus involved.
    Mr. Cohen. Well, you say there would be the ones you might 
look at. Is there maybe a void somewhere that needs to be 
filled where exhibiting of a noose, the burning of a cross, the 
painting of a swastika with the intent to deprive a person of 
their constitutional rights needs to be passed either with that 
language, which I just mentioned, or some other language to 
fill any void.
    Mr. Washington. Actually, I think you just quoted the 
elements of a Federal statute today. 18 USC 241 or 242 already 
exists to cover the situation that you just indicated.
    Mr. Cohen. So you think it is pretty filled?
    Mr. Washington. Well, it is pretty filled. Where we get 
into significant discussions is where it is the limit between 
speech versus criminal law.
    Mr. Cohen. So you have to have some element of violence 
alleged to have occurred to make this a hate crime; is that 
right?
    Mr. Washington. We would like to see that.
    Mr. Cohen. You say you like to see it. It has always been 
my thought, maybe it is just conventional wisdom, that the hate 
crime is violence and not speech; and a noose, while it is as 
objectionable as a swastika or burning a cross, is speech. What 
do you have to have added to that speech? Don't you have to 
have something besides speech to make it a hate crime?
    Mr. Washington. Yes. Just as an example, 18 USC 245, when 
you get to the punishment section, if there is no injury, it is 
a misdemeanor. So that is one. When you back up into the 
elements of the crime itself, you do need some use of force or 
threatened use of force.
    Mr. Cohen. Great.
    Let me ask a different subject. Maybe Mr. Ogletree would be 
best to respond. I'm not sure.
    Do you know if there's anything that we should look into 
putting in the No Child Left Behind law, if there is anything 
there now, maybe to mandate education that requires courses on 
tolerance or some courses on civil rights history, Holocaust 
history or things like that to teach all children of the United 
States about such episodes of racial and ethnic intolerance?
    Mr. Ogletree. Congressman Cohen, as I said earlier in my 
remarks, I think No Child Left Behind is a huge opportunity for 
this Congress to address a number of these issues that are 
slipping and sliding away from both State and Federal 
prosecution. It is the right to an education, and we leave No 
Child Left Behind when we have a real law that treats all 
children fairly in terms of the quality of their education. I 
would, with my institute, be more than happy to work with 
Congress and think of ways to specifically amend and reform the 
No Child Left Behind to address some of the underlying issues 
here that aren't being addressed in other ways.
    I want to make a quick comment to your earlier query to Mr. 
Washington. I really can't think of a circumstance where a 
noose is a household item or an article. It's offensive, it has 
a deep history, and you can't trivialize it because it is in 
someone's house or they don't say words.
    It is designed for one purpose. Nooses were used for one 
thing and one thing only. In the history of this country, it 
was used, by and large, to lynch Black women and men. And we 
can't ignore the 3,000 people who died and no one was 
prosecuted. We can't ignore that this Congress, this Senate 
just last year didn't stand up and talk about an anti-lynching 
law. They had a voice vote, because there still are questions 
about that.
    I hope we don't bury the history with what this symbolizes. 
This is one of the most destructive, mean-spirited, racist 
examples of individual behavior; and it doesn't just hurt the 
three, five or seven Black children under the tree. It hurts 
all of us, every single one of us.
    I don't have to be in Jena to be deeply offended whenever 
any person for any reason on a truck, in a car, in a tree, in a 
house has a noose. It is not a neutral term. It is a term that 
connotes threats, violence, death and destruction. And I think 
we should not try to homogenize or anesthetize what is one of 
the great symbols of racial hatred that's so pervasively marked 
this country's history, that influenced a world war and that is 
still a symbol that groups like the Ku Klux Klan applaud and 
celebrate.
    It is another way to dig it in. It is not a neutral item or 
instrument. It is an instrument of hate and the most vile form 
of hate. And Congress in no uncertain terms should ever 
tolerate a noose as anything as a household article or garment 
that can be used as a term of endearment. It is a term of hate, 
and we should never move from that.
    Mr. Cohen. I certainly agree, and that's why we have been 
looking to make any amendments in the law that might be 
necessary, any void concerning a noose; and I appreciate each 
of the members of the panel and particularly the Chairman for 
holding this hearing. If you could get us some suggestions on 
No Child Left Behind, I think we would like to put that in and 
offer it as an amendment. But Tennessee has a good course where 
we teach people about the Holocaust and teach about civil 
rights and that's required, but a lot of States don't have it.
    Mr. Ogletree. I would be happy to submit that.
    Mr. Cohen. Thank you, Mr. Chairman. Thank you, panel 
members.
    Mr. Conyers. Judge Hank Johnson of Atlanta.
    Mr. Johnson. Thank you, Mr. Chairman. I must say that I am 
very happy that you called this hearing so quickly in response 
to the escalating developments in Jena, Louisiana, which 
continue to this day an injustice that pains the hearts of so 
many, including myself; and I would first want to kind of set 
the record straight about what actually happened here.
    Back on August 31st of '06, a student who had asked for 
permission to sit under a tree, indicating a problem in Jena, 
Louisiana--anytime you have to ask for permission to sit under 
a tree, there's a problem. And so the student sat under that 
so-called ``white tree'' August 31 of '06, and that's when all 
Hades broke lose. The noose incident, nooses hung from trees, 
we know what that means. A noose is not a symbol of endearment. 
It's a symbol of terrorism, and terrorism was commenced.
    The students who engaged in the terrorist act were 
suspended. And when the Blacks protested, when they exercised 
their constitutional right to protest the slap on the hand 
given for the terrorist incident, then the LaSalle Parish 
District Attorney, Reed Walters, flanked by police officers, 
came to the school and issued a threat to the students. He 
said, with the stroke of my pen, I can make your lives 
disappear, so you'd better be quiet. But the situation 
continued to escalate.
    He's also, by the way, Reed Walters, the attorney for the 
LaSalle Parish School District, which means that he has access 
to all of the privileged information that these students have, 
all of their school records, all about their parents and all 
about their families. He has access to that.
    And so the situation continued to escalate. The building, 
the school building, was burned back in November of '06. 
Thereafter, physical attacks against Black students ensued.
    One of the Jena 6 students, Robert Bailey, was attacked 
physically; and then the next day a White boy pulled a gun on 
him and they charged Robert Bailey with stealing the gun after 
he took the gun away from the guy. Egregious conduct. Then 
taunts, calling folks niggers out in the schoolyard. And then, 
finally, there was this fight, a schoolyard brawl which 
resulted in, you know, a small degree of physical injury to the 
White student who attended a party later on that night.
    And then the Black students, the Jena 6, were charged with 
attempted murder, and that's what was done to try to diffuse 
this situation, was to treat it harshly, treat it with the long 
arm of the law, to treat it under the color of State law in a 
terrorist way.
    At some point, the Federal Government became aware of this 
situation, and I'll ask about that in a second, but I do know 
that at some point the parents, calling out for some kind of 
justice, none being forthcoming from the Federal Government or 
the State government, they contacted someone who they knew was 
about justice, and that was Reverend Al Sharpton. And Reverend 
Al Sharpton responded, and I want to thank you for your 
response.
    There are people who will criticize you, Reverend, and say 
you only go where the cameras are, but I will say that wherever 
you go, the cameras go. And it sheds light on this gross 
injustice that was happening and it continues to happen.
    Marty King, Jesse Jackson, all of the other stalwarts of 
the civil rights movement came out and responded to this with 
20,000 or so young people who arrived at the scene. I know, Mr. 
Washington, that it upset the locals. You indicated that they 
were not expecting that kind of a response, and so they--they 
were undeterred, however, after the appellate court released or 
after the appellate court threw out the charges against Mychal 
Bell, the adult charges, and he was released on bond. But now 
he has been locked up again for probation violation, and it 
smacks of vindictive prosecution. I wonder if----
    Mr. Conyers. The gentleman's time has expired, and we're 
under the pressure of bells summoning us to the floor.
    Mr. Johnson. Thank you, if I might ask one question, has 
the D.A.'s office been investigated for depriving the students 
of Jena, Louisiana, of their rights to protest by threatening 
them with taking away their--making their lives disappear? Is 
that a civil rights violation that has been investigated by 
your office?
    Mr. Washington. Let me just say that your recitation of the 
facts----
    Mr. Johnson. If you would answer my question.
    Mr. Washington [continuing]. It varies greatly from the 
facts that in the Parish appears to exist.
    Mr. Johnson. Has your office investigated the District 
Attorney for violating the civil rights of the students by 
issuing that threat to them to try to stop them from legally 
protesting?
    Mr. Washington. That situation did not occur, as best I 
know. That's what I'm trying to get at here.
    Mr. Johnson. The D.A. Did not say that at an assembly?
    Mr. Washington. Yes, the D.A. Did say those words.
    Mr. Johnson. Surrounded by uniformed police officers?
    Mr. Washington. No, sir. Not as best I can tell from review 
of the situation.
    Mr. Johnson. Well, has it been investigated by your office?
    Mr. King. Mr. Chairman, that's the seventh question asked 
after he ran out of time. I'd ask that we move along.
    Mr. Johnson. But he still has not answered.
    Mr. Conyers. Um----
    Mr. Johnson. He still has not answered.
    Mr. Conyers. Let's see if he is going to answer, and then I 
would like to try to get in Betty Sue Sutton before the bells 
ring.
    Mr. Johnson. Yes or no, sir?
    Mr. Washington. My answer is the Congressman's statement of 
the facts didn't occur in that fashion. If it had occurred in 
that fashion, perhaps there would be an investigation, but they 
did not occur in that fashion.
    Mr. Conyers. I thank you very much.
    The Chair is happy to announce the newest Member to the 
Committee, the gentlelady from Ohio, Betty Sue Sutton.
    Ms. Sutton. I thank the Chairman. I think the sum of answer 
to that question was, no, that didn't happen, that 
investigation.
    There are so many things that I could talk about, and I 
have a statement that I'm going to submit to the record, and 
everybody who is interested certainly you will have access to 
that, and it parallels much of, frankly, what my colleague just 
recited about this situation.
    I want to thank the Chairman for this hearing. Because 
while we're talking about the events of Jena today, make no 
mistake about it, this is a national issue. And I would just 
like to take this moment to pull together some of the things 
that we've heard here today.
    We've heard some discussion down the lines of what we can 
do, you know, in our schools. We talked about the opportunity 
that exists with No Child Left Behind, and I think absolutely 
we need to pursue that. And to the Southern Poverty Law Center 
and this program that you provided for us, wonderful, wonderful 
program to implement.
    But, as I think Mr. Ogletree also pointed out and Reverend 
Moran, I have to tell you you said something here today that I 
think is really important and bears repeating, and that was 
that there is a cry for peace, love and harmony, but there is 
no cry for justice.
    So while we're pursuing these other elements that we have 
to pursue to make ourselves into the nation that is worthy, we 
also have to have our legal system. And one is not a substitute 
for the other, but they must work in tandem. And I'm really, 
really concerned when I hear it acknowledged that this was--the 
hanging of the nooses under these circumstances--and I want to 
get this right--was a hate crime. Because the threatened use of 
intimidation, force, injury because of race or exercising a 
constitutional right of going to school qualifies this as a 
hate crime.
    Now, we all agreed that was a hate crime; and yet there was 
no response from our legal system of what we acknowledge as a 
hate crime. So why do we say it is a hate crime? If we don't 
act on it like a hate crime, then I don't really believe it. I 
don't believe that we really believe it is a hate crime if 
we're not acting on it.
    So what if there had been a legal response and we heard 
there were actions that could have been taken? What if there 
had been a legal response that said not just for those students 
but said for the United States of America that this is 
unacceptable to all of us. It harms us all as a country. What 
if that response had been taken?
    Now, I know it's a hypothetical and we can't get a complete 
answer, but explain to me how the people out there in this 
country can accept that our justice system could do no better 
than to go in on June 12th, 2007, to start to address this 
issue?
    Ms. Krigsten. I want to make clear that immediately after 
the incident that happened in August, 2006, the Department of 
Justice had two responses. Immediately, the Education 
Opportunities Section sent a representative to go talk to 
school officials. More importantly, the Federal Bureau of 
Investigation sent an agent in that area to investigate the 
allegation that there had been this noose hanging.
    Now it is undeniable that a noose hanging is a symbol of 
hate and racial violence. In this situation, it was not 
appropriate to pursue Federal charges for reasons that have 
already been discussed.
    What I want to make sure the Committee is aware of and that 
the American people are aware of is that the Criminal Section 
of the Civil Rights Division is taking all of the allegations 
of noose hangings around this country extraordinarily 
seriously. There are open investigations in numerous cities 
that are going on right now.
    The Criminal Section has formed a task force to coordinate 
the Division's response to these noose hangings, and we are 
working very closely with the FBI and local U.S. Attorneys 
offices.
    Ms. Sutton. With all due respect, and my light is about to 
turn red, too, but there was no legal consequence. As you said, 
you sent them in; and there was an educational response, which 
is good.
    I'm sorry--and perhaps we should shift over to the 
gentleman.
    Mr. Cohen. There was no educational response. That's the 
problem, and there's some dispute about the nature of the 
suspension or whatnot. But there was no public apology, there 
was no educational component to it; and, had there been, 
perhaps that would have been sufficient. Who knows?
    Right now, people call for the prosecution of the noose 
hangers to balance the scales because of what happened to the 
Jena 6 in being overcharged. I think that's a wrong-headed 
response. I just think that in the beginning it was dealt with 
very, very poorly. And, you know, I don't fault the U.S. 
Attorney for not filing charges, but I do think that the way 
the school handled it was a recipe for disaster, and that's 
what happened.
    Ms. Sutton. I appreciate the gentleman's remarks. Thank 
you.
    Mr. Conyers. Reverend Sharpton, did you want----
    Reverend Sharpton. Yes, I just wanted to say I think 
Congresswoman Sutton hit the nail on the head in terms of we 
keep trying to, in my opinion, mistakenly place the school as 
the response of the criminal justice system. I think the reason 
why we are seeing what some call copycat nooses, and I would 
call just racists that feel empowered, is why wouldn't they? 
Nothing happened when a noose was hanged. And when people get 
the message they can do this and nothing will happen, they will 
continue to do it.
    Yes, beating a kid is egregious but was a response. There 
was an overresponse. There was no response by the criminal 
justice system at all. A school having a seminar or suspension 
is not a criminal justice response that would tell me anywhere 
in the country that I'm going to pay for that if I do it, and 
that's why we see nooses all over America.
    Mr. Conyers. And we thank the Congresswoman from Ohio for 
her very lucid questioning. The Chair wants to welcome Faye 
Williams, Esquire, the national chair of the national Congress 
of Black women. And we appreciate her being here. And I 
recognize the gentlelady from Texas for a unanimous consent 
request.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman. I'd ask 
unanimous consent--I'm not sure if it has already been done--to 
put into the record two items, 6 lessons from Jena, teaching 
tolerance, that is the southern poverty law center. I'd ask 
unanimous consent. And I'd ask unanimous consent that answers 
most of the questions to put this graph from the Department of 
Justice that shows----
    Mr. Conyers. Without objection, so ordered.
    Ms. Jackson Lee. 50 cases were prosecuted. That is all 
under racial violence and hate crimes.
    Mr. Conyers. We stand in recess, but we'll come back 
immediately after the vote. And I thank the panel for its 
endurance.
    [Recess.]
    Mr. Conyers. The Chair has been slow in reconvening the 
hearing because the interaction has been so important between 
many of the parties that are interested in what is going on 
here today, and I think it is a very healthy interaction 
indeed. The Chair recognizes Artur Davis of Alabama, himself a 
former assistant U.S. attorney.
    Mr. Davis. Thank you, Mr. Chairman. Let me thank the panel, 
Reverend Sharpton, good to see you. Let me thank the panel 
today. The downside of Mr. Ellison and I being fairly junior 
Members of the Committee is every brilliant insight and every 
passionate insight that could have been offered has, no doubt, 
been offered already. But there are some points I do want to 
make, and I'll try not to cover old ground. Mr. Washington, let 
me begin with you. And this is not an admonition in any way, 
but I think since you're one of the two people on this panel 
that is on the ground literally in dealing with the issues in 
the community, I do want to make one observation.
    It strikes me as someone following this case from a 
distance as someone following this case through television, 
from the news media that there were a lot of missed 
opportunities to prevent this situation from ending up in the 
very tragic place it ended, because everyone in this room 
thinks it ended in a tragic place, tragic place for the six 
young men and their families, tragic place for the young White 
man, tragic place for the community. This is what is notable to 
me, though. How in the world do you have a school in the modern 
era that has a principal that has administrators and that isn't 
moved to action by a White folks tree or by there being some 
ambiance at this school or some sense at this school that, 
well, there is a place where the White kids hang out but Black 
kids don't hang out there. Even before you get to nooses, I 
don't understand how that kind of physical symbolism, that 
there is a place that is off limit to certain kids because of 
their race, I don't understand why that didn't have people up 
in arms.
    And frankly, Reverend Al, the sense that I get is there was 
a whole lot of a sense of this is kind of the way things happen 
in Jena. And we don't like it, but this is kind of the way it 
is. And if that mentality and that spirit had prevailed in my 
State and the State where your mom lives, Alabama, God knows 
where we would be. If we had settled into this attitude of, 
well, there are just certain customs and traditions, I don't 
understand why the good people in Jena, why the school 
administrator was not troubled by the very fact that there was 
a physical kind of segregation at the school was the first 
point.
    The second point, I want to say something responsive to one 
of my colleagues on the other side of the aisle, Mr. King. He 
was making the observation that the noose is a speech act, So 
we shouldn't be so troubled by that. And I was surprised to 
hear him say that, frankly, because I thought that the 
conservatives told us over and over that our moral standards in 
society aren't defined simply by what we can send people to 
jail for and what we can sue them for. Our moral standards are 
also defined by what draws our outrage. And I don't care 
whether or not you can prosecute somebody just for hanging a 
noose. I'm sure good lawyers can argue both sides of that.
    We know the DA here could be creative when he wanted to. 
And I'm sure we can argue both sides of that. I'm sure we could 
probably argue both sides in terms of a civil liability theory. 
But that is not always the standard, whether or not you can sue 
somebody or put them in jail. The question is what outrages us. 
The next point I want to make, all of the copycat business with 
nooses in the last several weeks in this country, for anyone 
who wants to know why an is speech dangerous, well, that is an 
answer because speech can be provocative, and we use the word 
``provocative'' sometimes as a synonym for that which 
titillates. ``provocative'' can also mean literally what it 
says, to provoke, to instigate others to action.
    The final point that I want to make--and this is frankly 
the most important one. We are talking first and foremost about 
children attacking children on both sides. We're talking about 
Black children attacking White children and Black children 
attacking Black children and that is enormously troubling to me 
because we used to have this belief in society that racism lost 
traction as it moved down the generational lines. We used to 
have this belief in this society that, well, as younger people 
came along, they were some how purer, they were less diluted, 
they were not likely to be as contaminated by racial bigotry. I 
am bothered by seeing a resurgence of racism among young 
people. And that is the question I would ask someone on the 
panel to address. What do we do with this regeneration of 
racism among children who ought to be the people most naturally 
coming together in this society?
    Mr. Conyers. I thank the gentleman. We're pleased now to 
call from New York Mr. Anthony Weiner, who has served with 
great distinction for the time that he has been on Judiciary 
Committee.
    Mr. Weiner. Thank you, Mr. Chairman. Let me just ask, you 
know, I would observe that it seems to me that the panel is 
divided between two groups of people, one group that argues 
that government is powerful and can have an influence over the 
outcome here and over leading us in prosecuting hate crimes, 
who can lead us to a place where we understand there is a 
national imperative that transcends what a local politician 
might want to see happen.
    And another group that is saying they are basically 
powerless to act until a certain series of things happens and a 
certain set of dominos falls and perhaps even long after 
someone sits in jail for a race driven prosecution. And rather 
than have the forces of government arguing for government power 
and government authority and people in the outside arguing that 
government is too powerful or doing too much, it seems to be 
inverted. And it strikes me that as I read the testimony of my 
good friends from the Department of Justice, there is mention 
of the Department's Community Relations Service, there is 
mention of the Civil Rights Division's Educational 
Opportunities Section. Good people who do good work no doubt. 
But it isn't until far into the testimony that we talk about 
the FBI, talk about the power for the U.S. attorney's office to 
prosecute crimes. This could have been a conversation we had in 
the 1950's about the government saying, you know, what this is 
the problem of localities, it is not the Federal Government. 
And we had a whole civil rights--we had broad chapters of civil 
rights legislation written to empower the Federal Government to 
go into communities where rights were being violated and say, 
you know what, there is a higher imperative here. Just because 
you're elected by a locality who may want you to have a racial 
prosecution doesn't mean that it is right.
    And it sounds like Professor Ogletree has articulated on 
several occasions and Reverend Sharpton, although not from a 
legal perspective, but basically the same thing, is that you 
simply have seemed to have kept in your quiver the most 
powerful arrows that you have to deal with this problem. And to 
communities outside Jena, where I assume these types of things 
are going on frequently, what is the message that is sent to a 
local prosecutor or a local sheriff or someone looking to make 
points? They would look at this case and say you know what, 
that is not a bad way to get re-elected in some towns. They 
probably look at this and say look at the attention I'm 
getting, look at me on the side of prosecuting these Black kids 
and defending the White community and the like and the Justice 
Department is actually saying let's see how it works out, let's 
see what happens next, you know, let's see where it goes, let's 
see how long they sit in jail.
    It seems to me that the tenor of the Justice Department in 
the United States Government should be that we learn what 
happens when you sit back and watch and say let's see what 
local authorities come up with. This is not dissimilar, I think 
my friends at the Justice Department would realize this is not 
dissimilar from a debate that went on in this country when 
those who defended the violations of people's civil rights and 
said it is really not the Federal Government's role to be going 
in, these are local laws, this is a local prosecution and the 
like.
    Is Professor Ogletree wrong that we have empowered you all 
to act more aggressively than you have and if not, tell us. 
This is the Committee of Congress that makes laws and now it is 
back in the hands of people who really care about civil rights. 
So we're prepared to act. If we need the Jena civil rights 
amendments of 2007 in order to make sure that things like this 
don't happen again, tell us. But I have to tell you, I don't 
really see that. I see what this comes down to is an 
excessively timid interpretation of the rights of the tools 
that we already granted to the Justice Department.
    And if this was an Administration that had been out there 
saying, you know, going out and seeking these types of things 
in the past, maybe I'd say, all right, this one just kind of 
slipped through, you're caught up now and you're really going 
to get on it. If I read the testimony in response to questions 
today, it is more or less saying just wait, we're going to let 
things play out for a couple more years because this has now 
been a couple of years.
    So I guess the question I would ask is is the Justice 
Department testifying today that if they had additional powers, 
they might have been able to or could today deal with this 
situation in a more forceful way that not only makes it clear 
that what is going on there is immoral or troubling or 
unethical, that it is illegal in the eyes of the Federal 
prosecution and is going to be stopped?
    How far does it have to go before you say, ah, we've 
reached the point now where we can take the arrow out of our 
quiver that was given to us by Congress in the 1960's that 
people died for and start to use them. Do you need additional 
laws to be passed?
    Ms. Krigsten. I'm grateful to have the opportunity to 
assure you, Congressman and the Committee, of the leadership 
that the Department has shown throughout this Nation. The 
number of important and high profile hate crime prosecutions 
that have taken place in the last few years is remarkable. We 
can talk about the prosecution in California, the United States 
versus Saldana case in which a gang, a Latino gang was 
targeting African Americans. And the individuals who were 
responsible for those acts actually received life imprisonment 
for their commission of Federal crimes. We can talk about----
    Mr. Weiner. That part is in your testimony. I read your 
testimony cover to cover. Could you respond to my question now?
    Ms. Krigsten. Yes.
    Mr. Weiner. Thank you.
    Ms. Krigsten. One of the questions that you asked was the 
leadership of the Department of the Justice.
    Mr. Weiner. No, no, no. Let me refresh. I did not ask that 
question. I asked are there additional laws that--I made an 
observation about the leadership department being lacking. And 
I think you should stipulate to that at this point. But if you 
choose not to, that is your decision. My question was a 
succinct one. Are there additional laws that you think you 
require had Congress and the American people not spoken 
forcefully enough for the civil rights legislation that exists 
that says the Federal Government will no longer, like it did in 
the 1950's, sit back and say it is up to the local sheriff and 
his dogs to decide what the laws are.
    Do you need the Jena civil rights amendments of 2007 to 
make it so you can go ahead and prosecute things like, or are 
you saying you've got all the laws you need and you just can't 
figure out a way to use them?
    Ms. Krigsten. The question wraps in several different 
concepts, and what I want to do is make sure I understand what 
you're asking for. If you're asking whether the Department has 
shown leadership in the prosecution of civil rights cases 
across the country, I'm happy to address that. We, last year in 
the Criminal Section of the Civil Rights Division, convicted 
the largest number of civil rights--have the largest number of 
civil rights convictions in the entire history of the Criminal 
Section. The activity in that criminal section of Federal 
prosecution is unprecedented and remarkable.
    So if you're asking whether there is leadership, I believe 
that our record in the last few years speaks for itself. If 
you're asking whether there are additional laws that are needed 
to address, for example, some of the activity that has happened 
in Jena and you've made it very vague. So what I want to do is 
address each of the points you've raised. If you're asking 
whether there are additional laws that are needed to address 
the noose hanging in August of 2006, what I will tell you is 
the reason that that prosecution was not initiated by the 
United States attorney and the Department of Justice was not 
because the law was lacking, it was because these individuals 
were under 18 years old, which makes them children in the eyes 
of the law. And it is important that the Committee understand 
and the American people understand that once we're talking 
about juveniles and a juvenile----
    Mr. Weiner. Aren't you defining a shortcoming in the law, 
Madam? Are you defining a shortcoming in the law that if it 
were changed would allow you to prosecute this with more 
fervor? That was exactly the question.
    Ms. Krigsten. The concern that I've heard raised by this 
Committee is the prosecution of juveniles in an adult court. 
And so it is up to this Committee, of course, to decide whether 
it wants to propose an amendment to allow juveniles to be 
prosecuted as adults in the Federal judicial system. But what I 
will say is that at this point, because these individuals were 
juveniles, that puts them in the juvenile justice realm, which 
means that their proceedings are secret. They are juvenile 
delinquency proceedings instead of court proceedings. Anything 
that would have happened to these individuals in a juvenile 
delinquency proceeding would have been private, not available 
to the public, not available to the press and would not have 
been available to be the deterrent effect that the Committee 
seems to believe is needed.
    When the Committee talks about deterrence and the 
leadership of the Department, I want to make sure the Committee 
understands the Department of Justice relies on its 
prosecutions throughout the country as leadership in the area 
that it is showing in its hate crime prosecutions in addressing 
the racial violence.
    Mr. Weiner. Thank you, Mr. Chairman.
    Mr. Conyers. Thank you very much, Mr. Weiner. This has led 
us in a very important direction. I'm grateful to you for it. 
The Chair recognizes the gentlelady from Wisconsin, Tammy 
Baldwin, whose contributions to civil rights and justice are 
well-known by this Committee.
    Ms. Baldwin. Thank you, Mr. Chairman. And thank you, 
especially for holding this incredibly important and timely 
hearing on the Jena 6 case. I think it would be difficult to 
overstate my own gratitude to you not only for your leadership 
generally on civil rights, but for your championship earlier 
this year of the local law enforcement hate crimes prevention 
act which I'm going return to in a moment. And I also know that 
my own constituents in the important State of Wisconsin are 
very grateful about this opportunity to continue what has 
become not only a national dialogue, but frankly, an 
international dialogue about the Jena 6 case, hate crimes, 
racial inequality and race related violence.
    I also want to extend my thanks to the witnesses who have 
been here today, and I apologize for my belated arrival at this 
hearing. Sometimes you pinch yourself about what you get to do 
in this job, and I've been shuttling between a markup on mental 
health parody of enormous importance and negotiations and 
discussions on employment nondiscrimination. So some very 
weighty matters that are being discussed.
    Thank you all for being here. Now, I was privileged to help 
work on the passage of HR 1592, the Local Law Enforcement Hate 
Crimes Prevention Act. And I had the opportunity to become 
intimately familiar with the Federal prohibition against hate 
crimes enacted as part of the Civil Rights Act of 1968. And as 
I stated in this Committee during our markup of 1592 earlier 
this year, I believe that hate crimes legislation is important 
for both substantive and symbolic reasons.
    The legal protections are essential to our system of order 
justice. But on a symbolic basis, it is just important for 
Congress to annunciate clearly that hate-based violence will 
not be tolerated, it is just plain wrong. We have certainly 
made great strides as a Nation since 1968 and our hate crimes 
laws serve as a cornerstone for eliminating violence based on 
irrational fears and hatred. Hate crimes are also among our 
Nation's--hate crimes laws are among our nation's strongest 
statement that racially motivated violence is unacceptable and 
wrong. Yet these legal protections can truly only be as 
effective as their implementation.
    And what troubles me so deeply about the Jena 6 case is 
that our efforts to extend legal protections against violence 
motivated by hate is an empty effort both substantively and 
symbolically unless the implementation of these laws are swift 
and effective.
    So I'm incredibly disappointed in the collective law 
enforcement reaction to the August 2006 schoolyard noose 
hanging incidents that served as a catalyst for the episodes of 
racially charged violence in Jena. And I am still unclear as to 
why two government agencies, the U.S. attorney's office and the 
FBI that investigated the noose incident, determined that hate 
crime prosecutions could not be pursued.
    And I'm also unclear why LaSalle Parish district attorney 
Reed Walters did not pursue hate crime charges under the 
Louisiana statute. District Attorney Walters wrote in The New 
York Times in a piece last month that the nooses broke no law, 
a statement which directly contradicts Mr. Cohen's written 
testimony that the Louisiana statute creates a hate crime for 
any institutional vandalism and criminal trespass motivated by 
race.
    And also unclear about how to understand Mr. Walter's 
decision to pursue second degree attempted murder charges 
against Mychal Bell. One of the six teenagers charged in the 
case in light of his finding that the noose incident did not 
warrant any charges. Was this a singular case of excessive 
prosecution or a window into the inequities within our justice 
system and our juvenile justice system. Whether in Jena, 
Louisiana, or in Wisconsin or any other State, violence like 
this has no place anywhere but let alone in our schools and nor 
does a racially hostile school environment.
    But as I said, we have hard-won laws aimed at protecting 
our children against violence motivated by hate. And we've 
tried as a Nation to take a strong stand both substantively and 
symbolically against such inequity. So are our hate crime laws 
effective? I'm getting back to the same sort of big questions 
that my colleague from New York raised. What can we do to 
mitigate these injustices in the national criminal justice and 
how do we understand the lack of prosecutions as well as the 
excessive prosecutions in Jena and around the country? I know 
these are big questions, but perhaps just starting with the 
hate crimes question itself, are they effective and how can we 
make them stronger?
    Mr. Conyers. Well, that's a great question to ask after 
your time has expired, but let's give it a shot. Let's see if 
we can quickly move down the table and get some responses. You 
know, we're not trying to solve this historic problem in one 
session. This is going to be something that goes throughout the 
110th Congress, and my guess is even beyond. So let's go right 
down the row to Ms. Baldwin's query.
    Ms. Krigsten. On behalf of the Federal Government, I can 
tell you that hate crime laws are effective and they are being 
used aggressively across the country. We're prosecuting cross 
burnings, we prosecuted a case in Ohio where individuals put 
mercury on the front steps of a couple, a bi-racial couple and 
their children with an intent to drive these individuals out of 
their home. Those perpetrators are now in prison. The Saldana 
case that I mentioned. We can go through a laundry list of 
cases in which the Criminal Section of the Civil Rights 
Division along with the FBI, along with our partners in the 
local U.S. attorneys offices, have used the tools provided by 
this Congress very effectively across the nation and we'll 
continue to do so.
    Mr. Cohen. Thank you. I think you're absolutely right. It 
is inexplicable how Mr. Walters could say that there were no 
crimes that could have been prosecuted there. There clearly 
were crimes that could have been prosecuted in the noose 
hanging. Again, though, I want to make clear that we are not 
here to call for the prosecution of noose hangers. What we're 
here to call for is a level playing field, an equal justice 
under the law. And that is not what has happened in Jena. 
Prosecutor unfortunately sees race. And when that happens, 
there are calls for retribution and this kind of stuff has to 
end. Someone has to have enough common sense to say enough is 
enough. I hope people file charges against Mr. Walters, get him 
removed from office. I hope the people of Jena reject him when 
he runs again. If he does. But I think your comments are right 
on the mark.
    Reverend Sharpton. I concur with Mr. Cohen. And in fact, 
let me make a record, Mr. Chairman, that national action 
network has filed charges with the disciplinary and ethics 
committee in Louisiana and they have acknowledged receipt of 
it. But I think that Mr. Cohen's statement applies for us 
national action network and I would also in this particular 
matter speak for Martin Luther King, III, and realize the dream 
because we've operated jointly in this. We addressed this as an 
even playing field. This is not about prosecuting one side and 
not the other. It is how do you rationalize no prosecution 
based on juvenile status for the hangman noose and then 
prosecute juveniles the same age as adults for a fight.
    And I think that a lot of confusion, and I think 
Congressman Weiner addressed this properly, a lot of confusion 
was one that there was no immediate reaction by the Justice 
Department to explain to us how kids of the same age, one 
becomes adult and the other remain juvenile. I mean, explain 
that. The same age. They all go to the same school, same age. 
And I think we fabricate this--well, did they have anything to 
do with the noose. It doesn't matter, it is the same 
prosecutor.
    And I might add for the record that even when they were--
there was a record, they should expel the kids that was 
overturned into a suspension and the district attorney is the 
general counsel of the school board that overturned the 
expelling. And even if they were expelled, that's still not the 
criminal justice system. I think what we're begging for, 
Congresswoman Baldwin, and Congressman Weiner, is an even 
playing field where the Justice Department responds by saying 
there must be equal protection under the law.
    And Congressman Weiner's point that he made very 
eloquently, and Mr. Chairman, I'll tell his folks at home that 
he spoke very eloquently today, he is correct. If we can't turn 
to the Federal Government, as we have for the last 50 years, 
then what are we telling young students that marched at Jena, 
where do they turn and how do we tell them that we want peace 
and we want nonviolence if the Federal Government is saying 
we're going to wait and see what happens, okay, he has done 10 
months, let's see what happens in 13 months? We can't keep 
telling young people that.
    Mr. Ogletree. I'll just briefly say this. I agree with 
those comments. I think Congressman Weiner and Congresswoman 
Baldwin and Congressman Artur Davis who left, it seems to me 
that to make this record complete, and really get answers to 
the questions which you haven't heard today, you have to 
propound the question what authority did the State and Federal 
officials lack to create a fair and equitable criminal justice 
system and educational system in Jena. And what resources the 
State and Federal Government lacked to bring future actions.
    Taking into account, we know you've prosecuted all these 
cases. We're talking about this one in this city that everyone 
is talking about. My sense is that the best way is to propound 
questions and get answers. And they'll tell you whether the 
government is satisfied, they have all the authority that they 
need and don't need any more. And if they say that, I think 
we've got a very different role for this Committee to play in 
addressing what we've already heard about.
    Reverend Moran. Thank you. Mr. Ogletree, I really thank you 
for elaborating on some of the things the Justice Department 
has been stating. I think the main initiative now is 
considering what is going in Jena, not considering what they've 
done in past incidents in different cities and different 
States. We have six Black boys, young men who are charged 
unrighteously and we're here today to see that fair judgment is 
dealt out to them. Also, I was quiet a few moments ago, but I 
want to elaborate on what Mr. Washington said about the TV 
broadcast that he himself was on. I seen the TV broadcast. And 
personally, I took it as though he said that your hangmen 
nooses were not an act of hate. That's the way I received it. 
And that's the way our community received it and that has a lot 
to do with the copycat mentality it has a lot to do with it.
    Because if it had been ruled out not be a hate crime. There 
would have been a lot of people who would have been scared to 
even look at a noose or think about a noose. Because, in fact, 
it was ruled out not a hate crime and because it was said not 
to be a hate crime, it has a lot to do with the copycat 
mentality. And the stupidity of anyone that would hang a noose 
after hearing that it is not--it is not a hate crime, someone 
would even be so stupid as to commit a crime as far as hanging 
somebody.
    If we continue to allow people to see that this is not a 
hate crime, somebody is going to hang somebody. And I wonder 
whose eyes are we--who are we going to be putting our eyes on 
then and I would think it would be the Justice Department for 
ruling out a noose as not being a hate crime.
    Mr. Conyers. Thank you very much, Ms. Baldwin. And I want 
Reverend Sharpton to know that Mr. Weiner speaks eloquently at 
all of these hearings.
    Reverend Sharpton. I'll stipulate to that.
    Mr. Conyers. And now I'm very pleased to turn to Ms. Debbie 
Wasserman Schultz, the gentlelady from Florida.
    Ms. Wasserman Schultz. Thank you, Mr. Chairman. Mr. 
Washington and Ms. Krigsten, I need to get a sense because I 
have repeatedly heard both of you say that because these 
children were under the age of 18, it was not within your 
discretion prosecutorially to pursue a hate crimes charge; is 
that accurate?
    Mr. Washington. Yes, that is accurate. It is not a matter 
of we wouldn't pursue hate crimes charges. It is a matter of we 
could not pursue hate crimes charges.
    Ms. Wasserman Schultz. That leads me to believe that it is 
your testimony that you declined to charge them with a hate 
crime because they are under 18?
    Mr. Washington. That's correct.
    Ms. Wasserman Schultz. Okay. Is there anything in the 
Federal hate crimes statute that specifically excludes minors? 
Does it say anywhere in the law that you cannot charge a minor 
with a hate crime?
    Mr. Washington. 18 USC 5036, I think it is the statute that 
governs--did I get that right, 5036? Okay. I'm sorry. We could 
charge them under 18 USC 1845, but we get back to the 
limitations for juvenile proceedings for juveniles that is also 
in the United States Code which puts us in a position of having 
to find juveniles who have committed what is called a Federal--
a felony crime of violence or some of the enumerated crimes 
that are in that statute.
    Ms. Wasserman Schultz. But there is nothing in the law that 
specifically prohibits you from charging a minor with a hate 
crime, other than process, the order in which you'd pursue a 
case against a minor?
    Ms. Krigsten. If I could add something. Mr. Washington is 
absolutely correct. And I think there may be a matter of 
semantics that I want to make sure is cleared up. When we talk 
about prosecution, that is a term that is used in adult court. 
And these individuals, because they were juveniles were not 
eligible to go to adult court. Now If we're talking about 
juvenile delinquency proceedings, that possibility was there to 
address the August 2006 incident.
    Ms. Wasserman Schultz. But when a juvenile is charged with 
a crime in juvenile court, can it result in them being held in 
a----
    Ms. Krigsten. It can. The result of a finding in juvenile 
court is a finding of delinquency, not a conviction. One of 
the----
    Ms. Wasserman Schultz. You're right. That is a matter of 
semantics. So when you're charged with a crime whether a 
juvenile or an adult, If you're held in a facility in which you 
cannot voluntarily leave, it doesn't matter whether it is 
called a prosecution or a case against a juvenile or whatever 
you choose to be calling it. But what Reverend Sharpton or 
Professor Ogletree and all of the people other than you have 
been saying is that this is a matter of equality, of equal 
justice under the law that clearly does not seem to have been 
applied here. Here is my other concern.
    Congressman Weiner asked you directly whether there was 
anything that you needed to change in the law in order to have 
pursued hate crime charges against these minors. From what it 
sounded like to me said no, that your Department has led the 
way in pursuing civil rights cases and that you are doing just 
great. Well, if process is what has prevented you from pursuing 
hate crimes against minors, then it appears that the law needs 
to adjust the process so that those things can be pursued 
simultaneously, wouldn't it?
    Ms. Krigsten. I'm happy to have this opportunity to clear 
up any confusion. There have been several statements during 
this hearing both from panelists and from Members of the 
Committee about equality between the August 2006 noose incident 
and the December incident.
    Ms. Wasserman Schultz. I'd like you to answer my question 
about the process and whether the law needs to be adjusted so 
that hate crime charges could be pursued without regard to 
juvenile proceedings being pursued against minors.
    Ms. Krigsten. And with all due respect, I'm answering it 
the best way I know how, which is to say that looking at the 
way the Federal Government looked at the August 2006 incident 
is completely separate from how the State government looked at 
the December 2006 incident. We're not talking about the same 
offices. We're not even talking about the same system of 
government. The December incident was charged by a State 
prosecutor in State court. We're talking about Federal charges 
in the 2006 incident. And so with that framework, what I can 
say is as a matter of policy at the Department of Justice, this 
case was declined because these individuals were juveniles and 
because there was a noncriminal alternative to prosecution that 
was reached by the school district. Immediately after the 
incident----
    Ms. Wasserman Schultz. What does that have to do with the 
price of fish?
    Ms. Krigsten. Looking at the noncriminal alternatives is 
one of the principles of Federal prosecution that Federal 
prosecutors are obligated to consider in considering any 
charges. The decision and the manner in which this decision was 
reached is consistent across how the Criminal Section of the 
Civil Rights Division reaches charges in all Federal cases.
    Ms. Wasserman Schultz. Then that would seem to cry out for 
a change in the law so that it didn't have to be pursued that 
way any longer. Ms. Krigsten, I have to be honest with you, to 
follow in the same vain that my colleague Congressman Weiner 
did, caution is advisable in many cases. Too much caution 
results in impotence and that appears to be what has happened 
in the pursuit of justice and equal justice under the law in 
this case specifically.
    And, Mr. Chairman, I also appreciate that you held this 
hearing, that you called us together to examine this more 
closely because one would think that in 2007, something that 
happened in Jena wouldn't happen. And no one is discounting any 
of the crimes, the pursuit of justice against any of the crimes 
that were perpetrated. It is just that that pursuit should have 
been handled equally.
    And, Mr. Chairman, I have to tell you that as someone who 
has witnessed in my community the spraying of swastika stickers 
on homes and synagogues, and if you substitute a swastika for a 
noose on this tree, I would want the same treatment that the 
people in the community of Jena are asking for, and I assume 
that we might have a different reaction. But I don't trust that 
we would, under this Justice Department. I yield back the 
balance of my time.
    Mr. Conyers. I thank the gentlelady from Florida. Now 
normally the last Member asking questions is the final person 
on the Committee, but we regard Keith Ellison as our cleanup 
hitter. The gentleman from Minnesota has been very important in 
this 110th Congress. And we recognize him at this point.
    Mr. Ellison. Thank you, Mr. Chair. Professor Ogletree, do 
you agree that Federal delinquency proceedings against the 
noose hangers was legally impossible? Do you agree with that 
statement?
    Mr. Ogletree. No. As I said earlier. There were both State 
and Federal provisions available to pursue this and they were--
the nice words, they were declined.
    Mr. Ellison. Right, they were declined. Mr. Cohen, I know 
how you feel about the question of prosecuting the noose 
hangers. But let me just ask you this question. I'm asking this 
just from your legal analysis. Isn't it fundamentally a 
question of discretionary latitude?
    Mr. Cohen. That is correct. You could absolutely prosecute 
the noose hangers both as juveniles under 245 and as adults 
because the hanging of a noose was a crime of violence under 
the United States Code. So as long as the noose, as long as 
they were over 15, they could have been tried in adult court 
under section 1850.32.
    Mr. Ellison. So, Mr. Washington, you've used your 
discretionary latitude to decline the juvenile proceedings for 
the noose hangers; isn't that true?
    Mr. Washington. Actually, what our process is----
    Mr. Ellison. I need a yes or no.
    Mr. Washington. Well, I'm trying to answer your question 
the best----
    Mr. Ellison. No. I'm not going to let you waste my time. I 
need you to answer my question.
    Mr. Washington. My office works with or actually the Civil 
Rights Division----
    Mr. Ellison. Sir, I've got 5 minutes. I'm not going to 
tolerate you wasting my time. I need you to answer the 
question. You used your discretionary latitude to decline the 
charges on the noose hangers. Isn't that a yes?
    Mr. Washington. No, sir.
    Mr. Ellison. Okay. Well, we've got two learned counsel that 
says that is not true. Now, in the course of my time on this 
Committee, we have dealt with eight U.S. attorneys who were 
fired because they did not slavishly obey the dictates of the 
Bush Justice Department. And we had some people who got 
promoted, benefits accrued to them because they did do what the 
Justice Department wanted them to do under Gonzalez and Bush. 
You still have a job, don't you?
    Mr. Washington. Yes, sir.
    Mr. Ellison. And I almost fell off my chair when you 
invoked the name of Martin Luther King to say that you were 
somehow the culmination of his work. Sir, I would expect you to 
quit in protest based on that, based on your inability to use 
your discretionary latitude to charge these noose hangers. That 
is what I would expect of somebody who was truly in fidelity 
with that great legacy of Martin Luther King.
    Let me say that Jena 6 is obviously the occasion that we 
are here. But for those folks who are not from Jena, you know 
and I know that we're outraged because we all have some Jena 
6s. We've got some Minnesota Jena 6s. The fact is is that 
nationally, according to the testimony of Professor Ogletree, 
Black students are 2.6 times more likely to be suspended than 
White students. Overall, the numbers of students being 
suspended each year increased due to subzero tolerance 
policies. But that is just school discipline. The fact is 
juvenile justice data mirrored disparities in the school.
    2003, African-American youth were detained at a rate of 
four to five times higher than that of their White 
counterparts. Aside from the issue of the civil rights decision 
and the hate crimes stuff, what about Black youth and Latino 
youth in the criminal justice system and the overincarceration 
of Black people, we live in a country that incarcerates more 
than 2 million people. Don't we have a system that is 
essentially using the criminal justice system to do what the 
Jim Crow system did in the past? Isn't it just an extension? 
Reverend Sharpton, could you elaborate on this?
    Reverend Sharpton. No. I think you hit it on the head. I 
think the challenge of the 21st century is exactly that, 
Congressman Ellison. I said in my statement on September 20 in 
Jena with Martin, III, and others that we've got from Jim Crow 
to James Crow, Jr., Esquire. He is a little more polished, he 
uses different techniques. But it is the same result at the end 
of the day. And no one salutes the Chairman more than we do for 
calling this.
    If you start in August of '06 and go to the December, the 
scorecard is at the end of several incidents, six young Blacks 
are standing as adults under indictment or in jail and no 
Whites are after several incidents. That's the bottom-line. You 
can't get around that. And a Justice Department that says we're 
looking at, we'll study it, maybe, then what do we do? So there 
are those of us that respond, even though we'll be attacked--
Martin, III, Father Michael Pfleger is on his way to Jena. We 
are only responding because they won't respond.
    Mr. Ellison. Thank you for acknowledging the presence of 
Father Michael Pfleger, a hero and many years of service, sir. 
Thank you. But I just wanted to go back to this eight U.S. 
Attorneys things because this is taking up a lot of time here. 
And one of the things that always concerned me was not just the 
eight who were fired because they wouldn't bring fake voting 
rights cases, but the people who stayed and kept their jobs. 
These people are the ones who I'm truly concerned about. And I 
guess one of the things that I would like to know is, Mr. 
Washington, have you prosecuted other juveniles in your tenure 
as U.S. attorney? Have you prosecuted other juveniles?
    Mr. Washington. No.
    Mr. Ellison. Because let me tell you, I've defended 
juveniles in Federal court. Let me tell you, sir. I spent 16 
years as a criminal defense attorney and I've tried over 100 
cases to a jury, and I've defended juveniles in Federal court. 
So you can't tell me that the Federal Government doesn't 
prosecute. You prosecute them for having 5 grams of crack 
cocaine. You know you put them in jail for that. We have 
incarcerated generations over your drug war. And I say it is 
yours because you will not step away from an unfair system. 
What about the selective justice? You're telling me you have 
never prosecuted a juvenile? We're going to find out. Is that 
your statement before Congress?
    Mr. Washington. In my district--and you're asking me, I 
guess, about the Department of Justice. And I cannot speak to 
whether or when or how we prosecuted juveniles.
    Mr. Ellison. Right. Well, let me just say this, Mr. 
Washington, you've been on record saying that you believe that 
the noose hangers didn't commit a crime and now you're saying 
today that they did. I'm glad to see that. I want to give you 
credit for that. Have you changed your mind? Does that explain 
your change in testimony?
    Mr. Washington. I don't believe so, sir.
    Mr. Ellison. Have you come to see the light? Is that why 
you're saying that it is a crime today?
    Mr. Washington. I don't think I've changed my testimony.
    Mr. Ellison. Well, you changed your statement. Do you agree 
with that?
    Mr. Washington. I don't think so.
    Mr. Ellison. Well, the Reverend seems to have another 
viewpoint. Reverend Moran, do you have another thing you'd like 
to share on that?
    Reverend Moran. Well, I think a gun on school property is a 
Federal offense, is it not?
    Mr. Ellison. I think that it certainly could be. What about 
that case, about the guy having a guy pointed----
    Reverend Moran. Justin Barker, the one that was accused of 
being jumped on at the school.
    Mr. Ellison. Had a gun at school?
    Reverend Moran. Yeah, yeah.
    Mr. Ellison. Did he get prosecuted by a U.S. Attorney?
    Reverend Moran. Nobody.
    Mr. Ellison. If you claim to be a beneficiary of the work 
of Martin Luther King, you have got to stand on that. It is not 
a matter of career advancement. Martin Luther King did not do 
his work so you could get a Lexus and a nice house. It is not 
just a matter of your own career advancement and buying 
consumer items. It is fidelity to a set of ideas. Reverend Al, 
what do you expect of this new generation of African Americans 
who have benefited from the opportunities opened by the works 
of people like you, Reverend Jackson and Martin Luther King?
    Reverend Sharpton. I think that all that one can expect is 
that they'd keep the door open that they walk through and even 
make it more open for the generations behind it. We, I think, 
have the right not to expect that they would become the 
apologists for the element that would have prevented their 
coming to existence. We're not asking them to show favor. We're 
asking them to do justice, do what is fair. Mychal Bell is in 
jail today on an unequal situation. If he cannot look to 
Federal officers who wouldn't have been there, if it wasn't for 
people marching, who is he supposed to look to? So for people 
to give up their careers so you can have a career and you do 
not use your career to make sure other careers are justly 
treated is the height of ingratitude. Yes, Dr. King had a 
dream, but he wasn't asleep to get the dream. He woke up to get 
the dream.
    Mr. Ellison. Mr. Washington, I just have a last question.
    Mr. Conyers. The gentleman's time is nearly expired.
    Mr. Ellison. I just have one more question for you. I mean, 
the worst thing that can happen to a young person is not that 
they be prosecuted for hanging a noose. Even if they were 
prosecuted, wouldn't it perhaps prevent them from ever going 
into a life of racism and perhaps step away from that kind of 
lifestyle into the future? Wouldn't it drive home the point 
that what they did is deathly serious and can't be tolerated 
and wouldn't it also signal to the community that we take your 
lives seriously and are serious about your health and your 
safety and your well being? Couldn't that have been an outcome 
of the prosecution of these noose hangers?
    Mr. Washington. First of all, we could not prosecute these 
noose hangers. At the end of the day, all we could do, if the 
facts were there, was to bring a juvenile delinquency 
proceeding which we elected not to do. There has been some talk 
here----
    Mr. Ellison. So at least you admit that you elected not to 
do it. What about a juvenile proceeding against them, the noose 
hanger? Wouldn't that have achieved the goals of signaling to 
the community that we take their health and safety seriously 
and wouldn't it have simultaneously signaled to the noose 
hangers that this is very serious behavior and will not be 
tolerated in civil society? And, Mr. Washington, I'd like to 
hear from you.
    Mr. Conyers. I'm going to have to cut my friend off. I know 
he is the cleanup hitter, but I'm going to have to stop him at 
this point. Please respond.
    Ms. Krigsten. If I may respond for the Department of 
Justice on this. The idea of juvenile justice is not to send a 
message. The idea of juvenile justice is rehabilitation. Just 
as the prosecutor in Jena is being accused of using these views 
to send a message, the Department of Justice wants to be very 
careful and is exercising prosecutorial discretion. It does not 
use that discretion to send a message. Moreover, that message 
could not have been sent because the result of such a 
proceeding never would have reached the public.
    Reverend Sharpton. Mr. Chairman, can I say in response to 
that, that one, the prosecutor in Jena did not use the juvenile 
system to send a message. The third circuit forced him into the 
juvenile system. He tried to use the adult system and 
everything that has happened in the juvenile system seems to be 
national headlines with Mychal Bell. So it is very, very 
strange to me that if the Federal Government had elected to go 
juvenile that they would not have been known to the community 
that you don't get away with racist imagery like hanging nooses 
on trees.
    I think in a community as small as Jena that message would 
have gotten around had they elected to enforce the law of hate 
crime against juveniles. Or against those that were guilty of 
what was done on that day.
    Mr. Conyers. I thank the gentleman. I thank Mr. Ellison for 
bringing us to a conclusion. And I'd like to let everybody know 
that this hearing has taken place on two dimensions. One is 
around Jena, but the other is around the state of the criminal 
justice system in America going back way beyond Jena, going 
back beyond the 20th century and I feel honored to be the 
Chairman of the Committee that has had this kind of hearing for 
the first time since I've been in Congress.
    We've had some forums and we've had romp hearings and we 
have had other things, but this is indeed critical and so to 
the fact that we have not resolved this case yet is certainly 
not the point. This matter goes on. Clearly as we all know, 
this is not the last hearing or inquiry because we are dealing 
with a historic circumstance that even proceeds the late Dr. 
Martin Luther King, Jr.
    And I want to celebrate the stimulating debate, but the 
question that will really be the test of time for this hearing 
on October 16th will be what do we do about it and what 
solutions ultimately come out of it? And so I believe this 
Committee owes its thanks to those persons who rallied around 
the Jena 6 and came in to march and lifted one case that could 
have been a newspaper item, but lifted it not just nationally, 
but internationally.
    We are now focused on this question of disparate treatment 
under the law in the United States like, in my view, we have 
never been before. To that, we owe you thanks. We are also 
going to solicit your continued cooperation. From my point of 
view, we need to help the Department of Justice. I mean, this 
is a crippled agency. We don't even have an attorney general at 
this moment. We've gone through months and months of hearings 
as has been alluded to about the nature of the laws both 
Federal and State. I'm asking for an expedited return of the 
transcript. We've got a lot of searching and inquiry to do in 
terms of finding out what the state of the laws are and then 
how we accelerate the enforcement of the law.
    And so I am deeply indebted to the witnesses who have given 
up their time, of those would have gone to Jena. And I think 
you can understand the pride that I have for the Committee on 
the Judiciary. We've had a tremendously insightful commentary. 
And I want to reach out to those Members of the Judiciary 
Committee that weren't here today, because that is what it is 
really all about. I mean, we can hold a meeting or rally, but 
the question is, what is the Congress going to do? We've got a 
responsibility just as the Department of Justice does. Just as 
the community relations service does, just as the U.S. 
attorneys do.
    And so it is in that sense that I again thank you from the 
bottom of my heart, not only the witnesses here, but many 
distinguished men and women in the audience, the lawyers that 
are still active. This matter goes on. It is far from resolved, 
and perhaps our discussion can cast in a small way a positive 
light on what will ultimately end up. We are an integral part 
of this solution and of the resolution of Jena 6. And so we 
will give all Members 5 legislative days to submit additional 
questions to the witness and 5 days for the record to be open 
for the submission of other materials. And I pronounce the 
Committee concluded for the day.
    [Whereupon, at 2:46 p.m., the Committee was adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

       Prepared Statement of the Honorable Sheila Jackson Lee, a 
    Representative in Congress from the State of Texas, and Member, 
                       Committee on the Judiciary
    Mr. Chairman, thank you for holding this very important hearing. 
Let me also extend a warm welcome to our distinguished panel of 
witnesses:

          Mr. Donald Washington, U.S. Attorney, Western 
        District of Louisiana;

          Mr. Richard Cohen, President and CEO, Southern 
        Poverty Law Center;

          Reverend Al Sharpton, President, National Action 
        Network;

          Professor Charles Ogletree, Director, Charles 
        Hamilton Houston Institute for Race and Justice, Harvard Law 
        School;

          Reverend Brian Moran, Pastor, Jena Antioch Baptist 
        Church, President, NAACP Jena Chapter; and

          Ms. Lisa Krigsten, Counsel to the Assistant Attorney 
        General, Civil Rights Division

    Mr. Chairman, as every member of this Committee is fully aware, 
under your leadership this Committee has been one of the most active in 
the Congress when it comes to oversight. The record speaks for itself. 
Hearings have been held regarding: U.S. Attorney firings; warrantless 
surveillance programs; the FBI's use of national security letters; 
misuse of presidential clemency powers; misuse of presidential signing 
statements; and protecting the right to vote. Nonetheless, I believe 
that this is one of the most important oversight hearings that will be 
held in this Committee during this session of the 110th Congress.
    Mr. Chairman, one of the great challenges facing our country today 
is the fact that incarceration is not an equal opportunity punishment. 
It is in fact a punishment meted out disproportionately to African 
American males. As of September 20, 2007, there were an estimated 
2,283,818 people in U.S. prisons and jails. The United States 
incarcerates a greater share of its population, 737 per 100,000 
residents, than any other country on the planet. But when you break 
down the statistics you see that incarceration is not an equal 
opportunity punishment. Consider the following statistics:
    U.S. incarceration rates by race, June 30, 2006:

          Blacks: 2,468 per 100,000

          Latinos: 1,038 per 100,000

          Whites: 409 per 100,000

    Gender is an important ``filter'' on who goes to prison or jail, 
June 30, 2006:

          Females: 134 per 100,000

          Males: 1,384 per 100,000

    Looking at just the males by race, the incarceration rates become 
even more frightening, June 30, 2006:

          Black males: 4,789 per 100,000

          Latino males: 1,862 per 100,000

          White males: 736 per 100,000

    Looking at males aged 25-29 and by race, you can see what is going 
on even clearer, June 30, 2006:

          For White males ages 25-29: 1,685 per 100,000.

          For Latino males ages 25-29: 3,912 per 100,000.

          For Black males ages 25-29: 11,695 per 100,000. 
        (That's 11.7% of Black men in their late 20s.)

    Perhaps the most damning statistic of all is that the United States 
locks up its African American males at a rate 5.8 times higher than did 
apartheid South Africa, which was the most openly racist country in the 
world:

          South Africa under apartheid (1993), Black males: 851 
        per 100,000

          U.S. under George Bush (2006), Black males: 4,789 per 
        100,000

    The purpose of today's hearing is to examine the role of the 
federal government as it pertains to hate crimes, race-related school 
violence, and disparities within the juvenile criminal justice system. 
While the high profile, controversial case of the ``Jena 6'' warrants 
federal oversight, this hearing is intended to illuminate other 
inequities on the basis of race within the nation's school discipline 
and legal systems.
    As you have stated, Mr. Chairman, the case of the Jena 6 is not an 
isolated incident, but rather a reflection of a larger nationwide 
phenomenon. Accordingly, this case is an appropriate vehicle for a 
larger discussion about the unequal application and protection of the 
law, particularly with respect to African American males, and the 
appropriate federal response to remedy these inequities.
    This hearing will also discuss the federal remedies available for 
those students and juveniles who have been subjected to discriminatory 
and biased treatment by school administrators, prosecutors, judges, and 
law enforcement.
    It is important to briefly recount the factual background 
surrounding the case of Jena 6.
    On Thursday, August 31, 2006, a small group of black students asked 
if they could sit under a tree on the traditionally white side of the 
Jena High School square. The students were informed by the Vice 
Principal that they could sit wherever they pleased.
    The following day, September 1, 2006, three nooses were found 
hanging from the tree in question. Two of the nooses were black and one 
was gold: the Jena High School colors. On Tuesday night, September 5, 
2006, a group of black parents convened at the L&A Missionary Baptist 
Church in Jena to discuss their response to what they considered a hate 
crime and an act of intimidation.
    When black students staged an impromptu protest under the tree on 
Wednesday, September 6, 2006, a school assembly was hastily convened. 
Flanked by police officers, District Attorney Reed Walters warned black 
students that additional unrest would be treated as a criminal matter. 
According to multiple witnesses, Walters warned the black student 
protestors that, ``I can make your lives disappear with a stroke of my 
pen.'' This was widely interpreted as a reference to the filing of 
charges carrying a maximum sentence of life in prison.
    On Thursday, September 7, police officers patrolled the halls of 
Jena High School and on Friday, September 8, the school was placed on 
full lockdown. Most students, black and white, either stayed home, or 
were picked up by parents shortly after the lockdown was imposed.
    The Jena Times suggested that black parents were to blame for the 
unrest at the school because their September 5 gathering had attracted 
media attention.
    Principal Scott Windham recommended to an expulsion hearing 
committee that the three white boys responsible for hanging the nooses 
in the tree should be expelled from school. On Thursday September 7, 
2006, asserting that the noose were merely a silly prank inspired by a 
hanging scene in the television mini-series ``Lonesome Dove,'', the 
committee opted for a few days of in-school suspension. The names of 
the three students were not released to the public for reasons of 
confidentiality.
    According to press accounts, on September 10, 2006, several dozen 
black parents attempted to address a meeting of the school board but 
were refused an opportunity to speak. At a second September meeting of 
the school board, September 18, 2006, a representative of the black 
families was allowed to give a five-minute statement, but school board 
refused to discuss the ``noose issue'' because the matter had been 
fully addressed and resolved.
    Although few major disciplinary issues emerged during the fall 
semester at Jena High School, there is strong evidence that several 
black male students remained unusually agitated throughout the semester 
and that disciplinary referrals on these students spiked sharply. On 
Thursday, November 30, 2006, the academic wing of the Jena High School 
was largely destroyed by a massive fire. Officials strongly suspect 
arson.
    Throughout the following weekend, Jena was engulfed by a wave of 
racially tinged violence. In one incident, a black student was 
assaulted by a white adult as he entered a predominantly white partly 
held at the Fair Barn (a large metal building reserved for social 
events). After being struck in the face without warning, the young 
black student was assaulted by white students wielding beer bottles and 
was punched and kicked before adults broke up the fight. It has been 
reported that the white assailant who threw the first punch was 
subsequently charged with simple battery (a misdemeanor), but there is 
no documentary evidence that anyone was charged.
    In a second major incident, a white high school graduate who had 
been involved in the assault the night before pulled a pump-action 
shotgun on three black high school students as they exited the Gotta-
Go, a local convenience store. After a brief struggle for possession of 
the firearm, the black students exited the scene with the weapon.
    The Jena Times has reported that, in light of these racially-tinged 
incidents, several high school teachers begged school administrators to 
postpone the resumption of classes until the wave of hysteria had 
dissipated. This request was ignored and classes resumed the morning of 
Monday, December 4, 2006.
    Shortly after the lunch hour of Monday, December 4, 2006, a fight 
between a white student and a black student reportedly ended with the 
white student being knocked to the floor. Several black students 
reportedly attacked the white student as he lay unconscious. Because 
the incident took place in a crowded area and was over in a matter of 
seconds eye witness accounts vary widely. Written statements from 
students closest to the scene (in space and time) suggest that the 
incident was sparked by an angry exchange in the gymnasium moments 
before in which the black student assaulted at the Fair Barn was 
taunted for having his ``ass whipped.'' The victim of the attack is 
close friends of the boys who have admitted to hanging the nooses in 
September of 2006.
    Within an hour of the fight, six black students were arrested and 
charged with aggravated battery. According to The Jena Times, at least 
a dozen teachers subsequently threatened a ``sick-out'' if discipline 
was not restored to the school. According to the Alexandria Town Talk, 
District Attorney Reed Walters responded to the teacher's threat by 
upping the charges on the six boys to attempted second-degree murder 
and conspiracy to commit second-degree murder--charges carrying a 
maximum sentence of life in prison.
    On the basis of the charges filed by the District Attorney's 
office, all six black students have been expelled for the remainder of 
the school year and, according to The Jena Times, several teachers 
quickly demanded that the accused boys be barred from the school for 
life.
    On December 13, 2006, District Attorney, Reed Walters published a 
statement in The Jena Times in which the young men arrested in the 
school fight incident were characterized as criminals who had been 
terrorizing both the school and the community. The sloppy wording of 
the statement and an introduction associating the tirade with the 
``recent two incidents at Jena High School'' created the impression 
that those accused of involvement in the fight were also suspected of 
settling the school fire.
    The Louisiana Rules of Professional Conduct 3.6(a) state that:

        ``A lawyer who is participating or has participated in the 
        investigation or litigation of a matter shall not make an 
        extrajudicial statement that the lawyer knows or reasonably 
        should know will be disseminated by means of public 
        communication and will have a substantial likelihood of 
        materially prejudicing an adjudicative proceeding in the 
        matter.''

    At a January 29 school board meeting called to consider the 
possibility of reversing the decision to expel the students, District 
Attorney Reed Walters, appeared as the school district's legal counsel. 
Although it is standard practice in Louisiana for district attorneys to 
represent the local school board, there is strong evidence that the 
disciplinary investigation undertaken by the school and the criminal 
investigation of the December 4 fight are virtually indistinguishable. 
This heightens the impression that the charges filed by DA Reed Walters 
reflect the understandable hysteria engulfing both the student body and 
the school faculty in the wake of the school fire and a weekend of 
racial violence.
    In June of this year, the first of the Jena 6, Mychal D. Bell, was 
convicted of aggravated second-degree battery and conspiracy by an all-
white jury. The ``deadly weapon'' cited as a predicate for the 
aggravated charge was a tennis shoe worn by the defendant. The court-
appointed attorney who represented Bell called no witnesses and 
presented no evidence in his defense.
    On September 4, 2007, Jena District Court Judge, J.P. Mauffrey 
granted a motion to overturn Bell's conspiracy conviction, stating that 
the case should have been tried in juvenile court. Then on September 
14, 2007, Louisiana's 3rd Circuit Court of Appeals overturned Bell's 
remaining aggravated second-degree battery conviction, also on the 
grounds that the case should have been tried in juvenile court. LaSalle 
Parish District Attorney Reed Walters did not appeal this decision on 
September 27, 2007, but rather, has pursued aggravated second-degree 
battery and conspiracy charges against Bell in juvenile court.
    After spending more than nine months in jail, Bell was released on 
September 27 after bail was set and posted in the pending juvenile 
case. However, on October 11, 2007, Judge J.P. Mauffrey sentenced Bell 
to 18 months in a juvenile facility for violating probation on cases 
unrelated to the Jena 6 matter.
    Mr. Chairman, I have called upon the Department of Justice to 
commence a thorough and comprehensive review and investigation of the 
circumstances leading to and including the legal proceedings against 
six young African American high school students known to the world as 
the Jena 6. Specifically, I have called upon the Department of Justice 
and its Civil Rights Division to conduct an investigation to determine 
whether violations of the federal criminal statutes in Title 18 or 
federal civil rights laws codified in Title 42 of the United States 
Code have been committed by persons acting under color of law.
    The shocking case of the ``Jena 6'' has focused national and 
international attention on what appears to be an unbelievable example 
of the discriminatory and disparate treatment and the separate and 
unequal justice that was once commonplace in the Deep South. This case 
suggests that there is more to the controversy in Jena, Louisiana than 
an effort to turn back the clock on racial justice and equality. It 
appears to most outside observers that social life in Jena has been 
frozen in a time period reminiscent of the 1950s. This is simply 
unacceptable in the year 2007.
    That is the message delivered by me and the tens of thousands of 
persons of goodwill who traveled to Jena on September 20 to bear 
witness and protest the unequal protection of the law in the case of 
the Jena 6.
    Mr. Chairman, it is inconceivable that in 2007, a young African 
American high school student could be charged with attempted second 
degree murder and convicted of aggravated assault for a schoolyard 
fight. This action seems to me all the more egregious in view of the 
fact that the fight was provoked by white students, who hung three 
nooses in a tree at the high school courtyard, to warn black students 
not to sit there.
    After this act of racial intimidation was dismissed as a harmless 
prank by the school administration, black students protested under the 
tree. The local District Attorney, Reed Walters, was called in to 
school to address the students. According to media reports, Mr. Walters 
warned the black students that he ``could take their life away with the 
stroke of a pen.''
    It seems inescapable to me that the failure of the local authority 
figures refused to take a stand against this act of racism, the noose 
incident led to a series of fights between white and black students. 
After one such fight, only black students were arrested and charged--
with attempted murder. One of the defendants has already been tried and 
convicted of aggravated battery.
    The prosecution's theory for seeking a guilty verdict on the charge 
of aggravated battery is that the defendant used a deadly weapon when 
he kicked the victim while wearing a pair of sneakers. What makes this 
decision to charge certain of the defendants with felony offenses and 
attempt to try them as adults doubly egregious as an abuse of 
prosecutorial discretion is that no action was taken in a recent and 
remarkably similar case involving a white defendant and an African 
American victim.
    Let me remind those who regard the hanging of a noose from a tree 
in Jena, Louisiana as a harmless act at best and a juvenile prank at 
worst of its frightening and symbolic power, which was captured so 
poignantly by Billie Holiday in her unforgettable rendition of Southern 
Fruit:

        Southern trees bear strange fruit,
        Blood on the leaves and blood at the root,
        Black bodies swinging in the southern breeze,
        Strange fruit hanging from the poplar trees.

    Finally, Mr. Chairman, while it is very important for this 
Committee to focus attention on the case of the Jena 6, it is even more 
important to evaluate what legislative and other responses by the 
federal government, if any, should be take to prevent the recurrence of 
cases like the Jena 6.
    I suggest the Congress ought to consider imposing limitations on 
the nearly unfettered discretion of prosecutors in determining which 
offenses to charge defendants with violating. In particular, I believe 
this Committee should investigate and consider whether there is a need 
for legislation:

        1.  encouraging states to establish and use the grand jury 
        system of returning indictments in controversial cases like the 
        Jena 6 by offering or withholding DOJ Program grants;

        2.  requiring certain states or localities to use grand jury 
        system similar to the way the Voting Rights Acts requires 
        preclearance of election law changes in covered jurisdictions. 
        The idea is that where there is a history of prosecutorial 
        abuse of power or misconduct, controls ought be in place to 
        prevent future abuse;

        3.  requiring data to be collected and reported relating to 
        allegations of prosecutorial abuse and misconduct and can 
        condition eligibility or receipt of federal funds on a state or 
        localities history;

        4.  providing that allegations of prosecutorial abuse or 
        misconduct in cases like Jena 6 are immediately reviewable in 
        federal court;

        5.  directing the Government Accountability Office to conduct a 
        study comparing incidence or likelihood of prosecutorial abuse 
        in jurisdictions using grand jury system versus those using 
        information (D.A. decides) system;

        6.  making grants to State and local programs designed to 
        combat hate crimes committed by juveniles as does H.R. 254, the 
        David Ray Ritcheson Hate Crimes Prevention Act, which I 
        introduced earlier this year;

        7.  conditioning receipt of federal funds on state's 
        establishment of procedures to notify public of the right to 
        file grievances against prosecutors who are alleged to have 
        abused power; and

        8.  conditioning receipt of federal funds on state's enactment 
        of laws placing limits on amount of bail that can be required 
        to secure release of juveniles in non-capital cases; no 
        juvenile in custody of his or her parent should have bail set 
        at a amount that will bankrupt or impose undue burden on 
        parents.

    I look forward to discussing these important issues with our 
distinguished panel of witnesses. Again, thank you Mr. Chairman for 
holding this hearing. I yield the remainder of my time.

                                

 Prepared Statement of the Honorable Steve Cohen, a Representative in 
  Congress from the State of Tennessee, and Member, Committee on the 
                               Judiciary
    I first learned about the ``Jena Six'' several months ago and was 
greatly troubled to by the stories of unequal justice for whites and 
African Americans in Jena, Louisiana. At the time, I raised my concerns 
with the Committee, and I am glad to see that this hearing is being 
held not only to expose what went wrong in Jena, but also to explore 
the larger issue of racial inequity in the nation's criminal justice 
system. The series of race-based attacks between white and black high 
school students that took place in Jena started with the display of 
nooses by white students who were seeking to exclude their black 
classmates from socializing under the so-called ``white tree.'' For 
centuries, the noose has been used to intimidate African Americans 
through its symbolization of violence against them, yet both federal 
and state authorities determined that they could not pursue hate crimes 
prosecutions in Jena based on the display of the nooses. I intend to 
work with my colleagues to give law enforcement the tools necessary to 
pursue prosecutions in such instances.

                                

 Prepared Statement of the Honorable Betty Sutton, a Representative in 
Congress from the State of Ohio, and Member, Committee on the Judiciary
    Thank you, Chairman Conyers, for holding this important hearing on 
the Jena Six.
    When a black student asks whether he can go into an area where only 
whites usually gather, he is met with nooses that warn him to stay 
away. This could be a story out of an old history textbook, but it 
happened here, in the United States, just over a year ago. What 
happened in Jena, Louisiana is a sharp reminder that although many 
speak of the civil rights movement as if it happened in the past, in 
many respects, we still have a long way to go.
    The story begins at a Jena High School assembly last year, when a 
black student asked if he could sit under a tree where the white 
students usually sat. The principal told him he was free to sit where 
he wished, but students arriving early at school the following day were 
greeted with three nooses hanging from that very tree.
    Although the students responsible for hanging the nooses were 
initially expelled from school, this punishment was later deemed too 
harsh for students who committed what they called an ``innocent 
prank.'' Fights subsequently broke out among several members of the 
student body, and at an assembly convened to address this outbreak of 
violence, LaSalle Parish District Attorney Reed Walters reportedly 
warned students that ``with a stroke of my pen, I can make your lives 
disappear.''
    A noose is not just a piece of rope; it's a hateful and violent 
symbol that represents some of the most reprehensible events that 
occurred in this country during the last century. To simply dismiss 
this as an ``innocent prank'' without an acknowledgement or honest 
discussion of the emotions it provoked is to disrespect the civil 
rights movement that fought against everything a noose represents.
    Yet the concerns of many in the black community went unheard, and 
there is every indication that blacks and whites were subject to 
different standards by the prosecutor. While one member of the group of 
whites who started a fight with a black student received probation, the 
black students who started a fight with a white student were at one 
time charged, as adults, with attempted murder.
    Although the events we are discussing today started in Jena, this 
has turned into a national issue that urgently requires our attention, 
and I would like to commend the Chairman for his strong leadership in 
this area. I look forward to hearing from our distinguished panel about 
the federal government's role in dealing with hate crimes and race-
related violence in our public schools, and about the racial 
disparities that exist in our juvenile justice system.

                                

       Articles submitted by the Honorable Sheila Jackson Lee, a 
    Representative in Congress from the State of Texas, and Member, 
                       Committee on the Judiciary



                                

 Material submitted by Charles J. Ogletree, Jr., Director, The Charles 
  Hamilton Houston Institute for Race and Justice, Harvard Law School



   Post-Hearing Questions* submitted by the Honorable Lamar Smith, a 
Representative in Congress from the State of Texas, and Ranking Member, 
                       Committee on the Judiciary
---------------------------------------------------------------------------
    *The Committee had not received a response to these questions prior 
to the printing of this hearing.




                                 
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